IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13921 of 2004 MD.SALIM Versus THE STATE OF BIHAR & ORS ----------- 4. 18.4.2008 I.A. No. 3916/2006 The interlocutory application has been filed for substituting the heirs of the sole petitioner, Md. Salim who is stated to have died on 11.7.2006. It is stated that the petitioner is survived by his heirs and legal representatives being his wife, one daughter and four sons as mentioned in para-4 of the interlocutory application. In the aforesaid circumstances, the name of the sole petitioner, Md. Salim is directed to be expunged and in his place his heirs and legal representatives as stated in para-4 of the interlocutory application are directed to be substituted. I.A.No. 3916 of 2006 is accordingly disposed of. Heard learned counsel for the petitioner, learned counsel for respondent no. 6 and learned J.C. to Government Pleader No. 2. The petitioner seeks quashing of the entire proceedings of Section 48D of the Bihar Tenancy Act, Record No. 37/95-96 including the orders dated 3.8.1995 and 11.8.1995 passed by the Circle Officer, Balrampur and for further quashing the order dated 4.8.2004 passed in Revenue Appeal No. 3/2003-04 by Sub-Divisional Officer, Barsoi, by which the appeal filed by the petitioner has been rejected. The short facts of this case are that an application was filed - 2 - on 18.7.1995 by respondent no. 6 before the Circle Officer, Balrampur under Section 45 D of the B.T. Act with respect to land of Mauza Malikpur Thana No. 11, Khata No. 57, Plot No. 104, area 0.41 Decimals which he claimed to be in his possession since the last 30 years. The said application neither contains the address of the applicant nor the name of the raiyat of the land was mentioned. By order dated 18.7.1995 the Circle Officer mentioned the address of the applicant also in his said order and while giving the detail of land mentioned the Khata No. 89 instead of 57 and directed the Halka Karmchari and the Circle Inspector to inquire and report. Thereafter on 25.7.1995 after considering the report of the Halka Karmchari and Circle Inspector, the Circle Officer directed issuance of notices to the owner of the land. On 2.8.95 it is mentioned in the order sheet of the case that service report of notice had been received but both parties are absent. It was further directed that the record should be produced before him on 3.8.95 for making local inspection. In the order dated 3.8.95 it was recorded that local inspection was made by the Circle Officer himself and after recording further facts in favour of respondent no. 6, the order was passed that the permission was granted to open the record with respect to the land in question in the name of the applicant respondent no. 6 as occupancy raiyat. Learned counsel for the petitioner submits that the entire proceeding has been conducted contrary to the provisions of the rules framed under Section 48D of the Bihar Tenancy Act. In this regard he points out that under the rules the application itself must be in Form C - 3 - which was not done in the present case; apart from the same, it is essential to incorporate in the said application the details of the raiyat of the land as also to give the address of the applicant which was missing in the application. The most important aspect which has been relied upon by learned counsel is the service report, which has been annexed as Annexure-4 to the writ petition. It is pointed out that the service report itself is dated 27.8.95 and it is mentioned therein that as ordered notice has been served but Mazhrul Haque has died. It is thus submitted by learned counsel that evidently the order dated 2.8.95 wrongly recorded the fact that the service report of the notice had been received. It is, accordingly, submitted by learned counsel that the Circle Officer has acted in an arbitrary and malafide manner in order to allow the application of respondent no. 6 for reasons best known to him and he has passed the order on 3.8.95 on the basis of a non- existing service report falsely stated to have been received by him on 2.8.95. Learned counsel further submits that the notices were issued in the names of Sk. Mazhrul Haque and Haji Muzaffar Hussain and they were both dead at that time. The father of the petitioner died as far back as on 2.7.81 and the other noticee had died in the year 1994. It is thus submitted that notice was served on a dead person which is no notice in the eye of law and would be void and nonest. It is submitted by learned counsel that the petitioner was totally in the dark regarding the order dated 3.8.1995 passed by the - 4 - Circle Officer and when much later he learnt about the same he filed an appeal before the Sub Divisional Officer, Barsoi being Revenue Appeal No. 3/2003-04 and the same has been rejected without proper consideration of the matter by the impugned order dated 4.8.2004. It is submitted by learned counsel that under the rules framed under Section 48D of the Bihar Tenancy Act , a valuable right has been provided to the raiyat to be heard in the matter but the same has been denied to the petitioner in the present matter since no notice was ever served upon him and thus the proceeding stand vitiated. Learned counsel for respondent no. 6 supports the order of the Circle Officer and the Sub Divisional Officer stating that the arguments being raised in the present matter had not been made before the Sub Divisional Officer. It is further submitted that there is nothing on the record to show that the other noticee Haji Muzaffar Hussain was also dead and a mere statement has been made in this regard in the writ petition without any supporting document. It is evident from the aforesaid facts and circumstances that there is substantial force in the submission of learned counsel for the petitioner. From the materials on the record itself specially the service report , it is evident that the same is dated 27.8.1995 whereas the impugned order itself has been passed on 3.8.95 on the basis of the order recorded on 2.8.95 that service report has been received. It is evident from the said service report (Annexure-4) that the said statement in the order dated 2.8.95 is contrary to the material on - 5 - record and is a clear evidence of malafide on the part of the Circle Officer. There is hardly any doubt that Circle Officer has acted in an improper manner with undue haste in the matter without even receiving the service report. There is further nothing on the record to show as to how and when the address of the applicant - respondent no. 6 was supplied as recorded in the order dated 18.7.95 of the Circle Officer when the same is not mentioned in the application under Section 48 D. Moreover, there is no explanation how the Khata number mentioned as 57 in the application has been changed to Khata No. 89. In any case since one of the noticees, namely, the father of the petitioner was dead as per the service report itself, the Circle Officer could not have proceeded in the matter without impleading his heirs and legal representatives. All these facts go to show that the Circle Officer was acting on extraneous considerations in the matter and his actions are certainly not bonafide. There is no consideration of these aspects of the matter in the order of the Sub Divisional Officer. Thus, the order of the Sub Divisional officer is also bad and contrary to law and facts. Thus, on a consideration of the aforesaid facts and circumstances, this writ application is allowed, the orders dated 3.8.95 and 11.8.95 passed by the Circle Officer, Balrampur and the order dated 4.8.2004 passed by the Sub -Divisional Officer, Barsoi are quashed and the matter is remitted to the Circle Officer, Balrampur to decide the matter afresh in accordance with law. On a consideration of the conduct of the Circle Officer in the present matter, an exemplary cost of Rs. 10,000 is imposed upon - 6 - the respondent State of Bihar. It is, however, made clear that it shall be open to the authorities of the State to realise the said amount from the concerned Circle Officer who had passed the order dated 3.8.95. P. Kumar (Ramesh Kumar Datta, J.)