RAM CHARAN MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this writ application under Articles 226 and 227 of the Constitution of INdia, the petitioners have challenged the order dated 29-7-87 as well as 26-9-87, passed by the respondent Additional Collector, Giridih and the Commissioner, Chotanagpur Division, whereby the petitioners have been non suited from the land in question, pertaining to Khata No. 4 and 67 situated in village Etka in the district of Giridih measuring an area of 3.97 acres in a proceeding under Section 46- A of the Chotanagpur Tenancy Act (hereinafter referred to as 'the Act'), copies of the said orders are made Annexures-5 and 6 respectively to this writ application. The lands in dispute stands recorded in the name of one Sukhram Manjhi in the last survey records and the sons of the said recorded tenants transferred the said land by a registered deed in favour of one Jainath Manjhi in the year 1946. The said Jainath Manjhi alongwith Kashinath Manjhi executed (sic) raiyati patta in favour of Smt. Fulia alias Chorki widow of Dukhi Mahto in the year 1951 and came in possession of the lands in question. IN the year 1984, one Ratan Manjhi son of Lakhiram Manjhi and Bhikhu Manjhi son of Jainath Manjhi filed a petition purported to be under Section 46 A and 71 of the Act before the respondent Deputy Collector, Land Reforms being the Special Officer under the Act, which was registered as Restoration Case No. 2 of 1984-85. The respondent Deputy Collector, Land Reforms, by his order dated 11-1-85 rejected the petition filed by the aforesaid Ratan Manjhi after having held that the petitioner being under raiyat and is in possession of the lands for more than 12 years, the provision of Section 46-A of the Act is not applicable in such cases and accordingly rejected the claim of the said Ratan Manjhi a copy of the said order is made Annexure 8 to this writ application. No appeal and/or revision was filed against the said order. However, on 21-1-1985 again a petition under Section 46 of the Act has been filed by the widow of the Ratan Manjhi for restoration of the lands in dispute. The Special Officer by his order dated 4-7-85 has again dismissed the appeal on the finding as has been held earlier by the Special Officer that the petitioners being under raiyat and having in possession of the lands for more than ten years, the provision of the Act will not be applicable in such cases, a copy of the said order is made Annexure-4 to this writ application. Being aggrieved by the said order, the respondent No. 4 and 5 preferred an appeal being L.R.A. No. 21 of 1985-86 and the respondent Additional Collector by his order dated 29-7-87 set aside the order of the Special Officer and allowed the appeal filed by the respondents, which order was subsequently confirmed by the respondent Commissioner by his order dated 28-9-87, a copy of which is made Annexure-6 to this writ application. Mr. Devi Prasad, learned Counsel for the petitioners has assailed the orders under challenge in this writ application firstly on the ground that the petitioners are admittedly under raiyat and having in possession of the land in question for more than 12 years, neither the provisions of Section 46 nor Section 71-A of the Act is applicable inasmuch as the land in dispute does not come within the Scheduled area in the district of Giridih. It is further submitted that admittedly the petition for restoration under Section 46 of the Act having been filed beyond the period of limitation as prescribed under the statute, the respondent authority could not have entertain it and that too, without deciding the question of limitation. The 3rd and last question is that the order passed by the respondent authorities as contained in Annexures-5 and 6 are barred by res-judicata since the question has already been decided by the competent authority which has become final as no appeal or revision has been filed against the said order. From mere perusal of the order under challenge it appears that none of the question has been considered and decided either by the appellate authority and/or by the respondent Commissioner in their orders. The Commissioner by a driptic order nas dismissed the revision at the admission stage itself without hearing the petitioners, as it appears from the order itself. As has been stated above, the question which has been raised has also not been considered by the appellate authority. IN that view of the matter the order dated 29-7-87 as well as the order dated 29-8-87 as contained in Annexures-5 and 6 are hereby quashed and the matter is remitted back to the respondent authority, who will hear the parties and will pass a fresh order in the light of the observations made hereinabove and in accordance with law without being prejudice by the order of this Court. Let it be recorded that I have not expressed any opinion on the merit of the case at this stage. This writ application is accordingly allowed to the extent indicated above. Application Allowed.