IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14119 of 2003 1. MOST. PARWATI DEVI, wife of Late Srikant Sharma, R/o Village – Sajana Maheshpur, P.O. Porla, P.S. Azamnagar, Distt. Katihar, 2. Kamal Kant Sharma, S/o Most. Niroda Devi, 3. Most. Mono Devi, 4. Sona Devi, wife of Yogendra Sharma, Petitioner Nos. 3 & 4 are daughters of Late Most. Niroda Devi, Petitioner No. 2 is the resident of Village Loudhiya, P.O. Baltar, P.S. Azam Nagar, Distt. Katihar, Petitioner No. 3 is the resident of Village Belwa, P.O. & P.S. Abadpur, Distt. – Katihar and Petitioner No. 4 is the resident of Village – Mangatpur, P.S. Sihpur, P.S. Azamnagar, Distt. Katihar …….. ………………………………………………………………Petitioners. Versus 1. THE STATE OF BIHAR, 2. Sub Divisional Officer, Barsoi, Katihar, 3. Anchal Adhikari, Azam Nagar, Katihar, 4. Indra Dev Singh, S/o Late Tunmun Singh, 5. Ram Chandra Singh, S/o Late Tunmun Singh, Respondents No. 4 and 5 are residents of Village – Lodhia, P.S. Azamnagar, Distt. Katihar, 6. Sudama Singh, S/o Late Shiveharan Singh, 7. Tuntun Singh, S/o Late Shiveharan Singh, 8. Sumitra Devi, D/o Late Shivcharan Singh, 9. Urmila Devi, D/o Late Shivcharan Singh, and 10. Gulia Devi, D/o late Shivcharan Singh, Respondents No. 6 to 10 are residents of Village – Loudhia, P.O. Balter, P.S. Azamnagar, Distt. Katihar ………………………………………………….. Respondents. ----------- For the Petitioners:- Mr. Dhirendra Kumar Jha No. 2, and Mr. Jibendra Mishra, Advocates. For the State:- Mr. Anwar Karim, AC to SC V. ---------- 3. 11.09.2009. Heard learned counsel for the petitioners and learned counsel for the State. Though notices were issued upon the respondents no. 4 to 10 on 30.06.2004 whereupon they had entered appearance by filing Vakalatnama. However, no body was present on their behalf at the time of hearing of this case as also no counter affidavit has 2 been filed. However, a counter affidavit on behalf of the State has been filed. Petitioners seek quashing of the order dated 09.09.2003, passed by the respondent no. 2 in Revenue Appeal No. 1/2002-03, as contained in Annexure-4, whereby the respondent no. 2 had dismissed the same chiefly on the ground of limitation and also the order dated 18.02.1995, passed by the respondent no. 3 in Case No. 47/94-95 filed under Section 48(D) of the Bihar Tenancy Act, 1985 (hereinafter referred to as `the Act’), as contained in Annexure-2, whereby it had been held that the respondents no. 4, 5 as also the father of the respondent no. 6 to 10 had acquired the raiyati right upon the land concerned. Learned counsel for the petitioner submitted that Case No. 47/94-95 had been initiated at the behest of the respondents no. 4, 5 and the father of the respondents no. 6 to 10. The respondents aforesaid claimed the raiyati right upon the land appertaining to Khata No. 32 & 13, respective plots no. 13, 14 & 16, total area measuring 0.58 acre. It had come in the verification report that the recorded tenant, namely, Rash Mohan 3 Sharma had died leaving behind two daughters, namely, Nirodha Devi and Parvati Devi. However, even though such report was there, without issuing any notice upon the petitioner no. 1 and the second daughter of Nirodha Devi (since deceased and whose heirs are petitioners no. 2 to 4 herein), the respondents had been conferred raiyati right upon the land by the Anchal Adhikari, Azamnagar, Katihar in purported exercise of his power under Section 48(D) of the Act. It was next submitted by the learned counsel that from bare perusal of the impugned order passed by the authority at first instance, as contained in Annexure- 2, it would be manifest that the sikmi raiyat, Tuntun Singh had died and without properly deciding the issue as to whether sikmi right would be inheritable or not, it had been held that according to the custom prevalent in the area, the same was heritable right. It was also contended that since no notice was issued upon the heirs of the recorded tenants including the petitioner no. 1, the order remained completely unnoticed by them till the year 2002 when the State Government refused to receive the rent offered by them with regard to the lands in 4 questions. It had further been urged that the matter remained completely unknown to the petitioners also for the reason that even the direction given to the respondents by the impugned order to deposit the amount 24 times the fixed rent in favour of the petitioner, was also not complied with and no such amount had been deposited with the petitioner by the respondents concerned. Thus, after getting the aforesaid knowledge, Revenue Appeal No. 1/2002-03 was preferred before the Sub Divisional Officer, Barsoi, Katihar, Respondent no. 2. However, in that case, by mistake the name of Nirodha Devi was also shown as the appellant in addition to Parvati Devi. Subsequently, a petition was filed for rectification thereof informing the fact to the concerned authority that Nirodha Devi had already died; therefore, her heirs should be brought on record. The said petition has been brought on record as Annexure-3. However, the appellate authority upon noticing that one of the appellants was already dead and also that the appeal was filed after much delay, refused to admit the same. In view of the above, the contention on 5 behalf of the petitioners is that the original order suffers from various errors and has been passed in complete violation of the principles of natural justice and, thus, is liable to be set aside. Learned counsel appearing on behalf of the State submitted that the petitioners are wrong in making submission that no notice was issued upon them inasmuch as it would be apparent from the impugned order dated 18.02.1995 that a general notice was issued and in the impugned order dated 09.09.2003 appellate authority has also recorded the fact to that effect. Thus, in view of that it was contended that no notice to the petitioner no. 1 and other heirs of the deceased recorded tenants was required to be sent separately. The contention of the petitioner is that the appellate authority has rightly rejected the appeal which was filed after several years. However, further submission of the learned counsel for the petitioner is that there is no counter affidavit on behalf of respondents no. 4 to 10 on record controverting the aforesaid facts as also none had appeared on their behalf at the time of hearing of this 6 case. I do not find any substance in the submissions raised on behalf of the State. Order passed under section 48D allowing such application, the recorded tenant is divested with his rights with regard to the lands in question and the same is conferred upon the claimant. In such a situation it cannot be construed that no notice would be required to be sent to the recorded tenants, who are going to the evicted by the concerned party. That apart after coming into force of the Bihar Tenancy (Amendment) Rules, 1992, (hereinafter referred to as `the Rules’), Rule 1A has been inserted therein. The relevant passages of Rule IA of the Rules are as under:- “IA. Application by occupancy under raiyats under section 48D. (a) An occupancy under-raiyat entitled to acquire raiyati right in respect of land held by him shall make such application to the Anchal Adhikari under sub-section (1) of Section 48-D in Form `C’ contained in the Schedule appended to these rules stating his name with parentage and the address as well as the name, parentage and the address of the 7 raiyats whose lands he claims to hold as occupancy under-raiyat with particulars of such land and the year since when it is so claimed along with the documentary evidence thereto and an affidavit to the effect that he does not hold any land beyond the ceiling prescribed under the Bihar land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act XII of 1962) any where in the State. (b) The Anchal Adhikari on receipt of such application shall after giving the parties concerned a reasonable opportunity of being heard and to adduce evidence pass such order or orders in accordance with law as he deems fit. x x x x x x x x x x x x x x ” From perusal of Clause (b) of Rule IA of the Rules it would be manifest that the Anchal Adhikari concerned on receipt of any application under Section 48(D) of the Act has to accord a reasonable opportunity of being heard to the parties concerned and also to adduce evidence in that regard. Thus, a notice to the recorded tenants and in his absence to his heirs was mandatory. It is an admitted position in this case that no notice was issued upon the heirs of the recorded tenant. 8 Hence, it is held that the order dated 18.02.1995 is unreasonable, arbitrary, and has been passed without following the principles of natural justice and, thus, the same is set aside. Since the original order has already been set aside, as a consequence thereof the appellate order dismissing the appeal on the ground of limitation only has also to be set aside and is, thus, set aside. The matter is remitted back to the Anchal Adhikari – Respondent No. 3 to decide it afresh in accordance with law after giving opportunity of hearing to the parties. Accordingly, this writ application stands allowed. dk ( Dr. Ravi Ranjan, J. )