ASHARFI SAH Vs. RAMNARAIN SAH

JUDGEMENT

(1.) THIS application has been filed by the petitioner under Articles 226 and 227 of Constitution of India praying that the orders incorporated in Annexures B and C dated the 10th June 1967 and 20th January 1968, respectively be quashed. The order dated the 10th June 1967 had been passed by the Additional Collector in an appeal filed by the respondent opposite party, allowing his appeal and permitting pre-emption of certain land under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. It was held that the respondent opposite party was an adjoining raiyat of certain land vended in favour of the present petitioner and pre-emption was allowed on that footing. The petitioner had thereafter moved the Board of Revenue and the order dated the 20th January, 1968 was the order of the Board dismissing this revision petition. Learned counsel for the petitioner has argued that the order dated 13th May 1967 passed by the Additional Collector indicates that no party had appeared on that day and the case was adjourned to 10th June 1967 for order. It is stated that on 10th June 1967 also no party had appeared and for non-appearance of the appellant before the Additional Collector, namely, the present respondent opposite party, his appeal should have been dismissed under the procedure laid down by Rule 49 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963, read with Order 41, Rule 17 (1) of the Code of Civil Procedure. It is argued that the Additional Collector should not have considered the appeal on the 10th June in the absence of the appellant before him and, therefore, the order passed on appeal was erroneous jand ought not to have been passed. It is difficult to accede to this contention in view of the provisions of law mentioned above. Even under Order 41, Rule 17 (1) of the Code of Civil Procedure, in the absence of the appellant, a Court may order that the appeal be dismissed and Rule 49 states that so far as it may be practicable Order 41 of the Code of Civil Procedure should be followed. In any case, even the present petitioner had not appeared before the Additional Collector and he was also a person to blame in this case and, in any event, the petitioner had full opportunity of ventilating all his grievances before the Board of Revenue where he was heard through his counsel. All the points that he had raised before the Board of Revenue were considered and the revision failed.

(2.) THEN it is argued by the learned counsel for the petitioner that his client was also an adjoining raiyat and, therefore, no pre-emption could have been allowed, even on the footing that the pre-emptor was an adjoining raiyat. But, it does not appear that this case was made out by the petitioner at any stage. The writ application is not based on the footing that the petitioner was also an adjoining raiyat of the vended land, nor does this question appear to have been mooted out before any of the authorities, as there is no mention of such matter in any of the orders filed with the writ application. Therefore, all the contentions raised by the learned counsel must fail and the writ application is dismissed with costs, which is assessed at Rs. 100, payable to opposite party No. 1. The order of stay is discharged.