IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2247 of 2003 1. MANGAN URAON, S/O LATE MANGRU URAON @ MANGRU DHANGAR. 2. CHANO DEVI, W/O JAGDISH DHANGAR, D/O MANGRU URAON @ MANGRU DHANGAR BOTH RESIDENTS OF VILLAGE-KAJRA BASANTPUR, P.S. MANSAHI, DISTT. KATIHAR --------- PETITIONERS. Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER, PURNIA DIVISION, PURNIA. 3. THE COLLECTOR, KATIHAR, DISTT. KATIHAR. 4. THE ADDITIONAL COLLECTOR, LAND CEILING, KATIHAR, DISTT. KATIHAR. 5. THE DISTRICT WELFAR OFFICER, KATIHAR, DISTT. KATIHAR. 6. MD. QASIM, S/O SK. NOOR MOHAMMAD, RESIDENT OF VILLAGE BASANTPUR, P.S. MANSAHI, DISTT. KATIHAR. ------- RESPONDENTS. ----------- For the petitioners : Mr. Sushanata Kumar Das, Adv. Mr. Ratna Das, Advocate. For the State : Mr. Kameshwar Prasad Gupta, S.C. -5 --------- 5. 13/7/2009 Heard learned counsel for the petitioners and learned counsel for the State. Nobody appears on behalf of the respondent No. 6, though, Vakalatnama has been filed on his behalf. No counter affidavit either on behalf of the State or respondent No. 6 has been filed. The petitioners are aggrieved by the order dated 30.6.2002 passed by the Commissioner, Purnea Division in an Appeal No. 22 of 1993 as contained in Annexure-10. Shorn of unnecessary details, case of the petitioners is that their mother filed a petition under Section 49K of the Bihar Tenancy Act which was numbered as Case No. 338/1993 before the Collector, Katihar, for cancellation 2 of the sale deed executed by herself in favour of the respondent No. 6. Apart from other grounds taken for such cancellation, one of the grounds was that the petitioners‟ mother who belonged to scheduled tribe, as her caste was Uraon, it was mandatory to take permission of the Collector concerned for any transfer of the disputed land. That having not been done, the transaction concerned would be in teeth of the provision as under Section 49G of the Bihar Tenancy Act, 1888 (hereinafter referred to as the “Act”) and thus, Collector concerned had power to set aside such improper transfer in accordance with the provision under Section 49K of the Act. The Collector, Katihar, on consideration of documents produced on behalf of the aforesaid Most. Galo Devi (mother of the petitioners), came to the conclusion that she was „Uraon‟ by caste and thus, belongs to Scheduled Tribe and as such, the permission under Section 49G from the competent authority was mandatory. Therefore, in exercise of its power under Section 49K of the Act, had cancelled the sale deed No. 15549 dated 24.12.1989. This order was challenged by the respondent No. 6 (the purchaser) in appeal before the Commissioner, Purnea Division. The Commissioner called for a report and on consideration of the said report submitted by the Additional Collector, had held that Most. Galo Devi belonged to “Dhangar” caste. „Dhangar‟ Caste is within Scheduled Caste and not within Scheduled Tribe as claimed by Galo Devi. 3 Having found such, he set aside the order passed by the original authority whereby the sale deed concerned was cancelled. The respondent No. 6 had appeared on 7.5.2003 as a Vakalatnama was filed on his behalf. The mother was ordered to be posted after six weeks and in the meantime, he was required to file counter affidavit so that writ petition could be disposed of at the stage of admission itself. Today, when the case was taken up, none has appeared on behalf of the respondent No. 6 to contest the application and counter affidavit is also not on record. Learned counsel for the petitioners as well as the State also jointly submits that no copy of any counter affidavit has been served by the respondent No. 6. Learned counsel for the State has also not filed any counter affidavit. Learned counsel for the petitioners drew attention of this Court towards few documents which have been appended to his writ application as Annexure-1 (Caste Certificate issued by the District Welfare Officer, Katihar,) Annexure-1/1 (Caste Certificate issued by the Block Development Officer, Pranpur) Annexure-2 (certificate given by Mukhiya of Gram Panchayat, Raj, Gorgama). Annexure-3 is family ration card, Annexure-3/1 is voters list of Pranpur Vidhan Sabha to show that Galo Devi is wife of Manjhru Uraon. Annexure-4 and 4/1 are Raiyati Purcha whereas Annexure-5 is a copy of record of rights finally framed and 4 published under Section 10A(2) of the Bihar Tenancy Act, 8 of 1885 on 26th of March, 1958. It is submitted on behalf of the peitioners that the Collector concerned has considered all the documents and has come to the conclusion that Galo Devi belongs to Scheduled Tribe being member of Uraon caste. However, the Appellate Authority has not considered the aforesaid documents and has wholly relied upon a report submitted by the Additional Collector. Contention is that without assigning any reason to disbelieve the documents which were on record of the original authority, the appellate authority has held that the mother of the petitioners belongs to “Dhangar” caste relying upon the verification report and also due to the fact that in the sale deed concerned she has been described to be the wife of Mangru Dhangar. In view of the above, I am of the considered opinion that Appellate Authority was required to examine each and every document on record, and should have assigned reasons either for accepting or not accepting those documents. That having not been done, the appellate order as contained in Annexure-10 cannot hold good. As a result, the order dated 30.6.2002 as contained in Annexure-10 passed by the Commissioner, Purnea Division is set aside and the matter is remitted back to the Commissioner to decide the appeal afresh after giving notice to all the parties concerned and upon proper consideration of all relevant documents. 5 Accordingly, this Writ application stands allowed. However, it is made clear that this Court has not formed any opinion with regard to the merit of the case rather the order has been passed on the short question aforesaid as raised by the petitioner. There will be no order as to costs. S. Ali (Dr. Ravi Ranjan, J.)