IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.16522 OF 2008 SHANTI KUNJ SAHKARI GRIH NIRMAN SAMITI LIMITED, PATNA HAVING ITS REGISTERED OFFICE AT MINHAS NAGAR, PHULWARISHARIF, PATNA, THROUGH ITS SECRETARY ABDUL AZIZ, SON OF LATE HAKIM MD. SHARFUDDIN, RESIDENT OF PETHAI BAZAR, POST OFFICE AND POLICE STATION PHULWARISHARIF, PATNA ………………………………….PETITIONER VERSUS 1. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY 2. THE DISTRICT MAGISTRATE, PATNA 3. THE DEPUTY COLLECTOR, LAND REFORMS, SADAR, PATNA 4. THE CIRCLE OFFICER, PHULWARISHARIF, PATNA 5. DEO SAHAI RAI, SON OF LATE MITTAL RAI, RESIDENT OF RAILWAY STATION ROAD, ADARSH NAGAR, PHULWARI SHARIF, PATNA 6. DR. RAMSURAT RAI, SON OF SARYU RAI, RESIDENT OF EKTA NAGAR, POST OFFICE AND POLICE STATION PHULWARISHARIF, DISTRICT PATNA …………………………………………………………………..RESPONDENTS ******** 4 03/09/2010 The petitioner is aggrieved by the order of the Deputy Collector Land Reforms dated 21.06.2001 by which he has ordered that the name of the respondent should be entered in the revenue records. The order was confirmed by the Collector, Patna vide order dated 21.06.2007. The case of the petitioner is that the land in question belongs to Dasrath Mahto which had come to the possession of the Indian Hume Pipe Company (hereinafter referred to as the Company). The company went into liquidation and one of its Officer bearers Jay Kishun was authorized and given the Power of Attorney to sell the lands in question. One Durga Singh purchased 2 kathas 1 dhurs of land from Jay Kishun on 14.11.1967. Dasrath Singh sold the lands to his sister 2 Fulmati Devi. Ultimately, the petitioner purchased the land measuring 3 decimals, which is the subject matter of dispute before this Court from Fulmati Devi. The case of the respondent, on the other hand, is that Jay Kishun sold the land by SADA document for Rs. 500/- to respondent no. 4, namely, Deo Sahai Rai in the year 1962. Deo Sahai Rai on the basis of the aforesaid document, has claimed that he came into possession over the lands. Deo Sahai Rai filed an application before the Circle Officer for mutating his name in the records of right. Notices were issued to the petitioner, however, the Circle Officer did not pass any order, rather he sent the records to the Deputy Collector Land Reforms, Sadar for disposal. The Deputy Collector Land Reforms, Sadar by order dated 21.06.2001 has allowed the application of the Deo Sahai Rai on the basis of an enquiry held by him. Counsel for the petitioner submits that the Deputy Collector Land Reforms does not have the power to pass an order for mutation, the power, according to the Bihar Tenants Holdings (Maintenance of Record) Act, 1973 vests in the Anchal Adhikari (Circle Officer). The Deputy Collector Land Reforms is the appellate authority under Section 15 of the Act, whereas the Collector is the revisional authority under Section 16 of the Act. This 3 issue has been decided in the case of Kapil Deo Singh and Others vs. The State of Bihar and Others, reported in 2003 (2) PLJR 431 (DB) and again confirmed in the case of Ram Uchit Rai vs. The State of Bihar, reported in 2010 (1) BBCJ 186. This Court, therefore, finds that the order of the Deputy Collector Land Reforms, Sadar was without jurisdiction. Apart from the aforesaid legal position, it would appear on perusal of the order of both, the Deputy Collector Land Reforms, Sadar and the Collector, Patna that the spot enquiry was made by the Deputy Collector Land Reforms, to ascertain as to who was in possession over the disputed lands. Counsel for the petitioner submits that the enquiry was ex-parte, behind his back. The order indicates that the Deputy Collector Land Reforms went to the spot and examined some unnamed persons from the nearby locality and on the basis of such examination, he came to the conclusion that respondent was in possession over the disputed land. This Court finds that such an enquiry held behind the back of the petitioner without recording the statements of the persons concerned, cannot be relied upon for the purposes of holding that one or the other party is in possession over the lands in question. 4 An objection has been raised on behalf of the petitioner that the land in question is a long strip of land and is used as a lane by the general public. This aspect of the matter has been discussed in the order of the Deputy Collector Land Reforms where he says that the road is on the southern side of the disputed land. In any event, this Court finds that any order passed on the basis of an ex-parte enquiry cannot form the basis for mutation of the name of any of the parties. The Collector has not considered the legal aspect raised before this Court and has relied on the fact that the Deputy Collector Land Reforms has conducted an enquiry, and has upheld the order of the Deputy Collector Land Reforms. I find that the orders aforesaid cannot be sustained for the reasons mentioned aforesaid and as such I quash the orders of the Deputy Collector Land Reforms, Sadar dated 21.06.2001 and the order of the Collector, Patna dated 21.06.2007 and remand the matter to the Circle Officer who will issue notice to both the parties and decide the question regarding the mutation of the names of the parties. This application is disposed of with the aforesaid observations and directions. Anand ( Sheema Ali Khan, J. )