IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.743 of 2004 RASIK LAL MAHTO, S/o Late Rabbi Lal Mahto, R/o Village – Asraha, P.S. Kursakanta, District – Araria ……………………………… Petitioner Versus 1. THE STATE OF BIHAR, 2. The Sub-divisional Officer – cum – S.D.O., Araria, District – Araria, 3. The Anchaladhikari, (Circle Officer), Kursakanta, District – Araria, 4. Rampati Devi, wife of Late Sakhichand Bhagat, 5. Vijay Bhagat, S/o Keshrichand Bhagat, 6. Shrawan Bhagat, S/o Keshrichand Bhagat, 7. Ram Bhagat, S/o Keshrichand Bhagat, 8. Mohan Bhagat, S/o Mangal Chand Bhagat, 9. Sohan Bhagat, S/o Mangal Chand Bhagat, 10. Vijoy Bhagat, S/o Mangal Chand Bhagat, 11. Ganesh Prasad Bhagat, S/o Mangal Chand Bhagat, 12. Manik Chand Bhagat, S/o Late Tarachand Bhagat, 13. Rakesh Bhagat, S/o Late Tarachand Bhagat, 14. Laloo Bhagat, S/o Late Tarachand Bhagat, All residents of Village – Madanpur, P.S. & Distt. – Araria …………………….….. Respondents. ----------- For the Petitioner:- Mr. Sarangdhar Jha, Advocate. For the State:- Mr. Ranjan Kumar Singh, AC to G.P. II, and Mr. Aditya Nath Pandey, AC to G.P. II. For the Respondents 4 to 14:- Mr. Shashi Nath Jha and Mr. Ramesh Kumar Singh, Advocate. ------------ 4. 15.09.2009. Heard learned counsel for the petitioner, learned counsel for the State and learned counsel appearing for the private respondents (Respondents No. 4 to 14). This application is being disposed of with the consent of the parties at this stage. Petitioner seeks quashing of the order dated 24.04.2002, passed by the Sub-Divisional Officer, Araria in Appeal Case No. 77/2001-02, as contained in 2 Annexure-2, whereby he had set aside the order dated 19.12.2000, passed by the Anchal Adhikari, Kursakanta, as contained in Annexure-1, declaring that the petitioner had acquired a raiyati right under Section 48D of the Bihar Tenancy Act, 1885 (hereinafter referred to as `the Act’). Learned counsel for the petitioner submits that the appellate authority has set aside the order passed by the Anchal Adhikari concerned chiefly on the ground that as per the law laid down in Kusumlal Mallah Vs. The State of Bihar & Ors., [1996 (2) PLJR 339], the claimant, before making a claim under Section 48D of the Act should have taken steps for initiation and thereafter should have succeeded in a proceeding under Section 48E of the Act. It is submitted that the aforesaid view expressed by a single Judge of this Court was overruled in a subsequent decision of the Division Bench of this Court rendered in Dilip Goswami & Anr. Vs. State of Bihar & ors., [2003 (2) PLJR 211]. In the aforesaid decision, the Division Bench has held that the earlier view taken by the learned single Judge in the case of Kusumlal Mallah (supra) that without any 3 adjudication of the under raiyat’s status, under section 48E, application under section 48D will not be maintainable, cannot be said to be a correct law on the point as both of the provisions of law lie in separate compartments having little nexus with each other. It is further submitted that petitioner was found in possession and his father was recorded sikmidar and, as such, on the ground of custom prevalent in the area, the Anchal Adhikari had rightly declared that the petitioner has acquired the status of a raiyat on the strength of being occupancy raiyats. Learned counsel appearing on behalf of the private respondents fairly admitted that the law laid down in Kusumlal Mallah (supra) was overruled by a Division Bench of this Court in Dilip Goswami (supra). However, it is contended that at the time of passing the order, as contained in Annexure-2, that was the law in that context. That apart, it has also been urged that the fact that the father of the petitioner was a sikmidar was controverted before the original authority, but without considering such averments raised on behalf of the opposite parties therein, the original authority had come 4 to the conclusion that since the father of the petitioner was a recorded sikmidar, thus, the petitioner has also acquired the right under Section 48D of the Act. It has been further contended that even if it is assumed that the father of the petitioner was a sikmidar, again, that cannot be a ground available for the petitioner to claim that he also became a sikmidar. The Anchal Adhikari concerned had not recorded any finding as to when the father of the petitioner died leaving behind how many heirs and legal representatives, and if there was more than one heir, then how the petitioner alone could have claimed the sikmi raiyats etc. It is also not recorded that since when the petitioner was coming in possession of the land under the raiyats after the death of his father and what was the rent being paid by him to the recorded tenant. Further contention is that the original sikmidar himself had never claimed his right under Section 48D of the Act and it is the petitioner only, who after his death, was claiming such right, therefore, it was required that the finding should have been recorded on each and every ground, as aforesaid. That apart, there is no discussion at all as to how the Anchal Adhikari concerned had come to the 5 conclusion that a custom was prevalent in the area whereby after the death of sikmidar, his heirs used to inherit the sikmi rights. Without discussing any evidence in this regard, such a finding has been recorded by the Anchal Adhikari. It has also been urged that a dead person, namely, Sakhichand, who was husband of the respondent no. 4, was impleaded as a party before the original proceeding and the proceeding continued against him also. In view of the above it has been lastly submitted that even if the ground, as per the law laid down in Kusumlal Mallah (supra), would not be available now, on the other ground, the order passed by the Anchal Adhikari concerned was bound to be set aside in appeal and that had been rightly done so. I have heard the parties and perused the record of this case. A proceeding under Section 48D of the Act virtually deprives a person of his land as the tenant thereon becomes the landlord himself and, that too, for a meager compensation whereas the consequences are drastic. Thus, the authorities are generally required to 6 observe strict compliance of the procedural safeguards that are available to a party. Learned counsel for the petitioner has also drawn attention of this Court towards the order dated 22.04.1993 passed in CWJC No. 6807 of 1991 by a Division Bench of this Court holding that it is now well known that the sikmi right is neither heritable nor transferable unless a custom prevailing in the village is pleaded and proved. From a bare perusal of the order passed by the original authority, as contained in Annexure-1, it is manifest that though a finding has been recorded that such custom prevails in the area but there is no discussion as to whether it was pleaded by the concerned party and how was it proved. There is no discussion about any such evidence in the aforesaid order. That apart, it has also not been considered that the sikmidar had died leaving behind how many heirs. No finding has been recorded in this regard that the petitioner was the only heir of the sikmidar and, thus, he alone in exclusion of all others had inherited sikmi rights. The date of death of the earlier sikmidar and the date of coming into possession by the petitioner as under 7 raiyats also do not stand discussed in the impugned order. The petitioner also could not answer to the question as to how a dead person was impleaded as a party before the original authority. In view of the aforesaid discussions, this Court is of the view that the petitioner could not make out a case warranting interference in the appellate order, as contained in Annexure-2, by this Court in its writ jurisdiction. As a result, this writ application is dismissed. dk ( Dr. Ravi Ranjan, J. )