IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9280 of 2000 ********* 1. Smt. Kanchan Devi wife of Late Prabhat Kumar 2. Vivek Kumar 3. Vikash Kumar Sons of Late Prabhat Kumar, All resident of Purani Godown, P.S. Kotwali, District-Gaya. 4. Binita Devi, wife of Ajay Kumar, daughter of Late Prabhat Kumar, resident of village-Makhdumpur, P.S. Makhudumpur, District-Jehanabad. ........ Petitioners. Versus 1. The State Of Bihar through Collector, Gaya 2. The Superintendent of Survey, Survey and Settlement Office, White House Compound, Gaya. 3. The Assistant Superintendent of Survey, Survey and Settlement Office, White House Compound, Gaya. 4. Anil Kumar Yadav 5. Sunil Kumar Yadav Both sons of Ram Charitar Yadav, Resident of Mohalla New Godown, Pahasi Lane, P.S. Kotwali, District and Town Gaya. ……. Respondents. =========================================================== Appearance : For the Petitioner/s : Mr. CHITRAGUPT PRASAD For the Respondent/s : Mr. (GP9) Mr. Jitendra Prasad Singh Mr. Satish Narayan Sinha Mr. Kaushal Kishore Sinha =========================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE VIKASH JAIN) Vikash Jain, J. 1. The present application has been filed for quashing the order dated 28.01.1998 (Annexure-5) passed by the Assistant Superintendent of Survey, Gaya (Respondent No.3) by which an objection under Section 9 of the Bihar and Patna High Court CWJC No.9280 of 2000 dt.11-11-2011 2 Orrisa Municipal Survey Act, 1920 (hereinafter, “the Act”) filed on behalf of the respondent Nos. 4 & 5 has been allowed and their names have been entered in the survey record in place of the petitioners relating to Holding No. 15, 18 in Ward No. 1 corresponding to Old Municipal Survey Plot No. 8082, 7569 and 7567, as also the order dated 28.06.2000 (Annexure-6) passed by the Superintendent of Survey, Gaya, dismissing the appeal filed by the petitioner. 2. Briefly stated, the facts are that Sri Radha Kuer wife of Sri Hari Krishna Das gifted the subject piece of land by registered deed dated 22.03.1980 in favour of her son Prabhat Kumar. After the death of Prabhat Kumar in a scooter accident on 29.06.1987, the names of his widow, two sons and a daughter, the present petitioners, filed Objection Case No. 148 of 1987 under Section 9 of the Act which came to be allowed in terms of order dated 13.06.1990 passed by the respondent No. 3 in their favour (Annexure-2) and the petitioners names directed to be entered in the Municipal survey Khatiyan. 3. The petitioners also filed Eviction Suit No. 38 /1990 before the Munsif 1st, Gaya against tenant, Brahmdeo Prasad, which was decreed in the petitioners’ Patna High Court CWJC No.9280 of 2000 dt.11-11-2011 3 favour by judgment and decree dated 31.08.1996 holding the petitioners to be the landlord and not one Smt. Meena Devi as was being claimed on behalf of the said Brahmdeo Prasad. This finding was thereafter upheld in Title Appeal No. 70/96 in the judgement dated 27.02.99 passed by the learned Additional District Judge, Gaya. The Second Appeal filed against the same was also dismissed on 23.06.99 by this Court in S.A. No. 135/99. 4. It appears that on 07.09.1994, a sale deed was executed and registered by the said Smt. Meena Devi, conveying the said piece of land in favour of the Respondent Nos. 4 and 5, who accordingly filed an application under Section 9 of the Act for recording their names in the Municipal Survey Khatiyan. The petitioners state that Smt. Meena Devi is not the wife of late Prabhat Kumar as she has been describing herself and never acquired the property as inheritance after his death. Consequently, the claim of Respondent Nos. 4 and 5 based on the sale deed executed by her is not sustainable in law. 5. The main contention raised by the learned counsel for the petitioner is that once an application under Section 9 of the Act had been decided and the names of the Patna High Court CWJC No.9280 of 2000 dt.11-11-2011 4 petitioners allowed to be recorded in the Municipal Survey Khatiyan, the action of the respondent Nos. 2 and 3 in entertaining a fresh application filed on behalf of Respondent Nos. 4 and 5 was wholly ultra vires under Section 9 of the said Act and not maintainable in law. 6. Learned counsel for the petitioners has also placed reliance on the assessment notice dated 04.03.1997 (Annexure-3) issued by the Gaya Municipal Corporation, Gaya in the names of Kanchan Devi and Ors. being the petitioners herein. He thus seeks to submit that assessment has continued to be made in the petitioners’ names in 1997 which also prima facie supports his contention that the earlier Sale Deed of 1995 executed by Smt. Meena Devi is a fake document. 7. Learned counsel for the petitioners further submits that the sale deed executed as late as in the year 1995 by Smt. Meena Devi (Annexure-4) is not genuine which is self-evident from a bare reading of recitals therein being contrary to the admitted facts on record. By way of illustration, he points out that the Sale Deed describes the Late Prabhat Kumar as the only son of Smt. Radha Kuer, and that he had inherited the land from her. However, it is a well- Patna High Court CWJC No.9280 of 2000 dt.11-11-2011 5 documented fact that Smt. Radha Kuer had three sons, and she had executed a gift deed in favour of her son Prabhat Kumar. 8. Learned counsel for the petitioners therefore contends that had Smt. Meena Devi indeed been the second wife of Late Prabhat Kumar as claimed by her, she could not be expected to have been ignorant of the above historical facts. 9. It is further stated that even though the petitioner, Smt. Kanchan Devi, and others were made party in Objection Case No. 254 of 1997 filed under Section 9 of the Act on behalf of respondent Nos. 4 & 5, yet their objections though raised before the respondent No. 3 have not been taken into consideration and the order passed is thus bad in law. 10. Learned counsel appearing on behalf of the respondents Nos. 4 & 5, on the other hand, seeks to justify the legality and validity of their application under Section 9 being in fact not a fresh application, rather it has been filed on the strength of the sale deed executed by Smt. Meena Devi in its own right. It has been stated that Smt. Meena Devi is the second wife of the late Shri Prabhat Kumar and it is in that Patna High Court CWJC No.9280 of 2000 dt.11-11-2011 6 capacity that she has also been described in the sale deed executed by her in favour of the respondent Nos. 4 & 5, based on which their names have rightly been directed to be entered in the survey record in terms of the impugned orders (Annexures 5 and 6). 11. After hearing the parties at length and on a due appreciation of the materials on record, this Court finds that the issue under consideration involves seriously disputed questions of fact which go to the root of the matter inasmuch as the fundamental fact whether or not Smt. Meena Devi was or was not the second wife of the late Prabhat Kumar itself is a matter of considerable controversy. While the petitioners have relied on Para 17 of the judgment dated 27.02.1999 passed in Title Appeal No. 70 of 1996 by the learned Additional District Judge, Gaya wherein it has been held that the petitioners are the landlord and the alleged Meena Devi was not the wife of the said Prabhat Kumar, learned counsel for the respondent Nos. 4 & 5 have relied on other documents such as voter list wherein Smt. Meena Devi is shown to be the wife of Prabhat Kumar. 12. The veracity and genuineness of the Sale Deed executed by Smt. Meena Devi in 1995 which incidentally is Patna High Court CWJC No.9280 of 2000 dt.11-11-2011 7 completely silent about the person in whose name the survey records then stood, is also a moot point. 13. While it is true that the petitioners’ contentions have been taken note of by the appellate authority, yet it appears that the original authority hearing the matter has failed to apply his mind to these various aspects, particularly the petitioners’ submission against maintainability of the second application under Section 9 of the Act. It is a well settled principle of law that failure of natural justice at the initial stage cannot be cured by providing an opportunity of hearing at the appellate stage. The words of Sir Willam Wade found in his work “Administrative Law” 5th Edition at page 487 are apposite:- “If natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing: instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial.” 14. In view of the disputed questions of fact involved in this case and also to ensure against possible miscarriage of justice as may have resulted from non- Patna High Court CWJC No.9280 of 2000 dt.11-11-2011 8 consideration of the petitioners’ submission by the Respondent No. 3, the impugned orders as contained in Annexures 5 and 6 are hereby set aside and the matter remanded to the Respondent No. 3 who shall, after granting an opportunity of hearing to both the concerned parties who shall be at liberty to raise all their contentions, dispose of the matter afresh by a speaking order in accordance with law expeditiously, preferably within a period of 4 months hereof in terms of the directions contained hereinabove. 15. The writ petition is accordingly disposed of. The Patna High Court The 11th Day of November, 2011 A.F.R./Saif/- (Vikash Jain, J.)