MAULANA SHAFFIQUE ALAM Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present writ petition has been filed for quashing the order dtd. 1/3/2019 (Annexure-6 to the writ petition) passed in Revision Case No. 52/2003 whereby the respondent No.2 has recalled the earlier order dtd. 27/7/2018 and allowed the substitution petition filed by the respondent Nos. 5(a) and 5(b), who happen to be the legal heirs of the original respondent No.5 (since deceased).

(2.) The factual background of the case, as stated in the writ petition, is that the land appertaining to Khata No. 22, Plot No. 340, Village-Pindarkom, P.S-Hatia, District-Ranchi, measuring an area of 1.15 Acres was recorded in the Revisional Survey Record of Rights as raiyati land jointly in the name of the petitioner's ancestors and the respondent Nos. 6 to 21. The respondent Nos. 6 to 12 sold a portion of the said land admeasuring 23 Decimals to the father (Late Md. Israfil) of the respondent Nos. 5(a) and 5(b) by virtue of registered sale deed No. 8734 dtd. 7/8/2001. The petitioner and his brothers, having come to know about the said transfer, filed an application being Pre-emption Case No. 19/2001-02 under Sec. 16(3)(i) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 [hereinafter referred to as 'the Act, 1961'] against Md. Israfil and the respondent Nos. 6 to 12 before the respondent No.4 on 6/11/2001 claiming re-conveyance of the land in their favour on the ground that they were co- heirs as well as adjoining raiyats whereas the respondent No.5 was neither a co-sharer nor an adjoining raiyat of the same. The father of the respondent Nos. 5(a) and 5(b) and the respondent Nos. 6 to 12 filed show cause affidavit in the aforesaid case contesting the claim of the applicants on the ground that the said land was not in the joint possession of the applicants as well as the opposite parties of the said case (the father of the respondent Nos. 5(a) and 5(b) along with the respondent Nos. 6 to 12), rather the same was partitioned. The respondent No.4, after providing opportunity of hearing to the parties, allowed the said pre-emption application vide order dtd. 30/1/2003. Aggrieved thereby, Md. Israfil and the respondent Nos. 6 to 12 filed Misc. Appeal Case No. 5R 15/02-03 before the respondent No.3 which was dismissed vide order dtd. 15/10/2003 affirming the said order of the respondent No.4. Thereafter, Md. Israfil and the respondent Nos. 6 to 12 filed Revision Case No. 52 of 2003 before the respondent No.2 which was allowed vide order dtd. 1/2/2007 setting aside the orders passed by the respondent Nos. 3 and 4 on the ground that the application filed by the applicants under Sec. 16(3)(i) of the Act, 1961 itself was defective for non-compliance of Rule 19 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963 [hereinafter referred to as 'the Rules, 1963']. Thereafter, the respondent Nos. 19 to 21 filed a writ petition being W.P.(C) No. 2770 of 2007 before this Court which was disposed of vide order dtd. 29/01/2018 remanding the matter to the respondent No.2 for fresh consideration after hearing the parties by observing that admittedly, on the date of passing of the order dtd. 1/2/2007 by the respondent No.2, the purchaser of the said property i.e. the father of the respondent Nos. 5(a) and 5(b) as well as one of the sellers of the said property i.e. the father of the respondent Nos. 8(a) to 8(c) were dead and thus in that view of the matter, the order dtd. 1/2/2007 passed by the respondent No.2 not being sustainable in the eyes of law was set aside. Moreover, the respondent Nos. 5(a) and 5(b) were directed to file a substitution petition in the Court below within a period of two months from the date of passing of the said order. The order dtd. 29/1/2018 was communicated to the respondent No.2 and the notices were also issued to the petitioner as well as the respondents including the respondent Nos. 5(a) and 5(b). The petitioner appeared in the Court of the respondent No.2 after receiving notice dtd. 11/4/2018 in Revision Case No. 52 of 2003, however, the respondent Nos. 5 to 12 neither appeared and nor filed any substitution petition. Finally, on 27/7/2018, the respondent No.2 came to the conclusion that since no substitution petition was filed by two sons of Late Md. Israfil in Revision Case No. 52/2003 even after lapse of almost six months from passing of the order dtd. 29/1/2018, the said case should not survive any further. However, a notice dtd. 14/03/2019 was again sent to the petitioner by the respondent No.2 with a copy of the order dtd. 1/3/2019 whereby the order dtd. 27/7/2018 passed in Revision Case No. 52/2003 was recalled. Hence, the present writ petition.

(3.) Learned counsel for the petitioner submits that the opposite parties of Pre-emption Case No. 19/2001-02 did not raise any objection regarding maintainability of the application filed by the petitioner and his brothers agitating that the same was not filed in Form L.C.13 as mandated in Rule 19 of the Rules, 1963. Moreover, they also did not raise any issue with respect to non-compliance of any provision of the Act, 1961 or the Rules framed thereunder. The impugned order dtd. 1/3/2019 has been passed in violation of the principles of natural justice as no opportunity of hearing was given to the petitioner while passing the same. Moreover, the petitioner was not issued any notice prior to passing the order for substitution of the legal heirs of the deceased original respondent No.5 and hence the same is ab- initio void. The impugned order dtd. 1/3/2019 is bad in law and if the same is allowed to stand, it will amount to miscarriage of justice and will cause irreparable loss and injury to the petitioner and hence the same is liable to be quashed.