IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.20499 of 2010 BALESHWAR BISHWAS @ YUGAL BISWAS, S/O LATE KUSUM LAL BISWAS, R/O POTHIA, P.O. MAINAHAT, POLICE STATION-PLASI, DISTRICT-ARARIA. …………Petitioner. Versus 1. THE STATE OF BIHAR, 2. SUB-DIVISIONAL OFFICER, ARARIA, 3. CIRCLE OFFICER, PLASI, DISTRICT-ARARIA, 4. SK. ABUL S/O LATE SK. HANIF, Resident of Village-Danga, Police Station-Plasi, District-Araria ……………….Respondents. ----------- 03 13.01.2011 Heard counsel for the petitioner and the State. Petitioner alongwith his brother, namely, Nand Lal Bishwas, filed an appeal bearing Appeal No. 144/97-98 in the Court of respondent-Sub Divisional Officer, Araria aggrieved by the order dated 09.07.1997, passed by respondent-Anchla Adhikari in a proceeding instituted under Section 48D of the B.T Act. In the said proceeding, one of the agnates of the petitioner was impleaded as opposite party. The Circle Officer decided the status of the applicant (opposite party no. 4) as the Raiyat in respect of certain lands including land appertaining to R.S. Khata No. 226, R. S. Khata Nos.524 and 526, measuring an area of 0.32 and 0.16 dismals respectively, situated in Mauja Danga, in the District of Araria. Petitioner being aggrieved by the said order filed the aforesaid appeal before the respondent-Sub Divisional Magistrate. The said matter remained pending for a long time. From the order-sheet of the appellate Court (Annexure-2), it appears that the appellants remained present on several dates while the Presiding Officer was absent. However, it appears 2 that on few dates prior to the date of impugned order the appellants could not appear. The appellate authority by order dated 16.11.1998, dismissed the said appeal for non prosecution. Petitioner filed an application for restoration which gave rise to case No. 08/10-11of the Court of Sub Divisional Officer, Araria. By order dated 04.08.2010, the same has also been rejected on the ground that the appellants had remained absent on several dates prior to the date on which the appeal was dismissed for non prosecution. It has also been found therein that the petitioner had knowledge of the case. Learned counsel for the petitioner, while assailing the order dated 04.08.2010, submits that the lands in question were allotted to the share of the petitioner and his brother, namely, Nand Lal Bishwas, by reason of a decree passed in Title Suit no. 1015/62 of the Court of Munsiff (Araria) (Annexure-1). It is the stand of petitioner that in view of the aforesaid allotment to the share of the petitioner and his brother, the proceeding initiated under Section 48D of the B.T. Act before the respondent-Circle Officer was incompetent, since the same was filed only against Sita Ram Biswas, who was not the owner of the land in view of the decree. It is further contended that the Pairvi of the appeal was being made by his elder brother, who died during the pendency of the appeal and, as such, the petitioner (one of the appellants in the said appeal) could not take appropriate steps for want of knowledge of pendency of the appeal before the said authority. It is next contended that the petitioner shall suffer immensely, if the appeal is not heard on merit. It is next submitted that the 3 notice in the pending appeal was not even issued to the respondents of the appeal and the matter was pending consideration at the admission stage itself. Learned counsel appearing on behalf of the respondent- State, on the other hand, submits that on going through the findings recorded in the order dated 04.08.2010, it would appear that the petitioner had knowledge about the pendency of appeal and yet no appropriate steps was taken for restoration of the same within time. Its further submitted that order of the Court of respondent-Sub Divisional Officer, Araria (Annexure-2) would show that the appeal remained pending on several dates when no body appeared on behalf of the appellant(s) and, as such, the authority was left with no option but to dismiss the same for non prosecution. No infirmity, therefore, can be found with the said order. I have considered the submissions advanced on behalf of the parties. The cause concerns land of the petitioner. The appeal raises issues of substantive nature. Such cause could not normally be thrown to the winds without adjudicating on merit. True it is the writ petitioner- appellant could not present himself on few dates before the said Court. However, it appears from the order-sheet that they remained present on several dates fixed in the case. It is further seen from the records that the petitioner was claiming the land by reason of decree passed in a title/partition suit and, as such, he was required to be given an opportunity of hearing by the authorities under the Act before passing any order. From the submission made on behalf of the petitioner, this much is evident that 4 his brother, who is one of the appellants alongwith the writ petitioner, was pursuing the appeal and during the pendency of the said appeal he died. There appears to be valid grounds for non-appearance on few dates before the said Court. In the interest of justice, this Court is of the view that the appeal be heard and disposed of on merit. At this stage, counsel for the petitioner assures the Court that no unnecessary adjournment shall be sought on his behalf in the said appeal and every effort shall be made to get the appeal disposed of expeditiously. In view of aforesaid submission and discussions I am inclined to interfere with the order dated 04.08.2010 passed by respondent- Sub Divisional Officer dismissing petitioner’s application for restoration of Appeal no. 144/97-98. Accordingly, the said order dated 04.08.2010 is quashed and Appeal No. 144/97-98 is restored on the file of the respondent-Sub Divisional Officer for disposal in accordance with law. Let the petitioner approach the said respondent within four weeks from today alongwith a copy of this order for expeditious disposal of the appeal. Safik ( Kishore K. Mandal, J. )