CIVIL WRIT JURISDICTION CASE No.6790 OF 2002 1. KANTI DEVI, WIDOW OF LATE SACHCHIDANAND PRASAD SINGH 2.RAVI RANJAN PRASAD, SON OF LATE SACHCHIDANAND PRASAD SINGH 3. RAVI SHANKAR, SON OF LATE SACHCHIDANAND PRASAD SINGH 4.RAJNISH KUMAR, SON OF LATE SACHCHIDANAND PRASAD SINGH RESIDENT OF PARASDIHA, P.S.- CHANDI, DISTRICT NALANDA Versus 1. THE STATE OF BIHAR 2. THE CIRCLE OFFICER, CHANDI, NALANDA 3. THE DEPUTY COLLECTOR LAND REFORMS, HILS, NALANDA 4. THE COLLECTOR, NALANDA 5. LAKHAN MAHTO SON OF DAMRI SINGH 6.(i) URMILA DEVI (ii) NAGMANI KUMAR (iii) SUNIL KUMAR (iv) BRIJ BIHARI PRASAD 7. AWDESH PRASAD SON OF LAKHAN MAHTO RESPONDENT NO. 5 TO 7 ARE RESIDENT OF PARASDIHA, P.S.NAGARNAUSA (CHANDI)DISTRICT - NALANDA P R E S E N T THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA J U D G E M E N T SHAILESH KUMAR SINHA,J. Heard learned counsel for the petitioners and learned counsel for the State. The petitioners are aggrieved by order dated 11.04.2002 passed by the Deputy Collector, Land Reforms in the Misc. Case No. 07/2001-2202 (Annexure-8) whereby he dismissed the application for mutation of original petitioner and affirmed the - 2 - order dated 18.12.1999 passed by the Circle Officer in Misc. Case No. 23/2003 of 99-2000 (Annexure-4) It is submitted on behalf of the petitioners that an application for mutating the name of the writ petitioner was filed in respect of certain lands vide his application dated 7.09.1998, as contained in Annexure-1, Misc. Case No. 11/03 of 1999-2000. Since no order was passed over the said application, a petition in this connection was filed before the Collector, Nalanda which, in turn, was sent to the respondent no.-2, the Circle Officer, Chandi, for disposal. The said application was however, separately recorded as Misc. Case No. 23/03 of 1999-2000. It is further submitted that the respondent-Circle Officer disposed of the said Misc. Case No. 23/03 of 1999- 2000 by order dated 19.11.1999 (Annexure-4) considering large number of documents including the order dated 28.03.1979 in an earlier Mutation Case No.- 385/3 of 1978-79 and also the orders passed on appeal and revision arising out of the said order whereas the petitioners were not even noticed of such hearing and the matter was heard and disposed of in his absence causing serious prejudice to the petitioner by depriving him to place his case and explaining the documents filed by the Opposite - 3 - Party. The petitioners assailed the said order before the Deputy Collector, Land Reforms (Respondent no.3) and his application was registered as Misc. Case No. 7/2001-2002. The same was also dismissed as per the order contained in annexure-8 ignoring the grievance of the petitioners that the Respondent No.2 had passed order on merits without hearing the petitioners considering and accepting the documents filed by the Opposite Party without giving opportunity to the petitioners. In the circumstances, learned counsel for the petitioners submits that the order contained in Annexures 4 and 8 liable to be quashed and the respondent no.-2 deserves to be directed to pass the order afresh on Mutation Case No. 11/03/1999-2000 filed by the petitioners after heard both the parties and considering the respective documents. Learned counsel for the respondent, on the other hand, submits that even though petitioners were not noticed or heard by the Circle Officer, the petitioner was duly heard on merits by the Deputy Collector, Land Reforms, assailing the order passed by the Circle Officer. Besides the above, the petitioners have statutory remedy of revision before the Collector of the District and the same having not - 4 - been availed, the writ application is not maintainable and deserves to be dismissed. Upon considering the rival submissions of the parties and on perusal of their respective pleadings, it is not in dispute that the respondent no.-2, the Circle Officer, passed the order in favour of the respondents with regard to the mutation over the land in question without notice to petitioners and disposed of the matters on considering the documents filed by the respondents. Thereafter, the petitioner filed a petition before the Deputy collector, Land Reforms, as contained in Annexure-7 and 7(i), and requesting to pass the order considering the documents. In my opinion, the mutation application is required to be considered and disposed of as per the procedure prescribed under the provisions of the Bihar Tenants Holding (Maintenance of Records) Act, 1973 (hereinafter referred to as ‘Act’). Under Section 14 of the aforesaid Act at the first instance, the Anchal Adhikari shall issue general notice and also give notice to the parties concerned. The parties shall be given reasonable opportunity to adduce evidence and dispose of the objection if any filed by any of the person objecting to the application. The party aggrieved has remedy of filing a statutory appeal - 5 - under Section 15 under the Act before the Land Reforms Deputy Collector against the order of the Anchal Adhikari with further remedy of approaching the collector of the District in revision against the appellate order if aggrieved in terms of Section 16 of the Act. In my opinion, the respondent no.-2 and 3 both failed to pass the orders as per the procedure prescribed in law under the aforesaid Act. The original order was required to be passed by the respondent no.-2 on the Mutation Application for mutation filed by the petitioner and the respondent no.-3 could have only exercised the appellate jurisdiction on appeal considering the findings and the reasons assigned in support of the order appealed against. In the instant case, it appears that the Deputy Collector Land Reforms who is appellate authority has passed the original order which is not permissible in law. Accordingly, the order dated 18.12.1999 in Mutation Case No. 23/03 of 1999- 2000, vide Annexure-4 as also the order dated 11.04.2002, passed in Misc. Case No. 7 of 2001 - 2002, vide Annexure-8 is hereby quashed and the matter is remitted back to the respondent no.-2 – Circle Officer, Chandi, Nalanda to pass the order afresh on the application filed by the petitioners in - 6 - accordance with law vide Case No. 11/03 of 1999- 2000 alongwith the case no. 23/3 of 1999-2000 after giving notice to the petitioners and the respondents and also upon considering the documents filed by the respective parties expeditiously, preferably within a period of 4 months on receipt/production of certified copy of the order. The writ application is accordingly allowed with the above observations/directions. The Patna High Court The 4th day of March 2009 Jagdish/N.A.F.R. (Shailesh Kumar Sinha,J)