MUMTAZ JAHAN BEGUM Vs. STATE OF BIHAR

JUDGEMENT

(1.) In a case initiated against the appellant under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, the D.C.L.R. passed an order on 31.01.1983. Against the said order, appellant preferred an appeal before the Collector under the Act on 7.03.1983. This appeal was dismissed for default, whereupon the appellant moved in revision before the Additional Member, Board of Revenue, who set aside the order of dismissal of the appeal in default and directed the Appellate Authority, namely, the Collector, to hear the appeal. This order was brought to the notice of the Collector on 17.02.1997. The Collector on 11.11.1997 dismissed the appeal again for default. The order dated 11.11.1997 records in the first sentence that the service return has not yet been received, but still then the order dismissed the appeal for default. The order of the Collector dated 11.11.1997 was the subject matter of challenge in the writ petition.

(2.) In the counter affidavit filed to the writ petition, a report of the process server was annexed as Annexure-A, whereby and under it was reported that a copy of the notice was pasted on the house of the appellant in presence of witnesses. The learned counsel for the appellant at the time of hearing of the writ petition drew attention of the learned Judge, who dealt with the writ petition, to the relevant Rules governing the procedure to be followed for effecting service of notice in relation to matters arising out of the Act, which made it mandatory for service of notice by Registered Post with A/D, but the learned Judge felt that such Rules apply to proceedings initiated by the State and not to proceedings initiated against the State and as the appeal was against the State the said Rules had no application. The learned Judge opined that in such situation, there was a vacuum and accordingly, service through process server was perfectly good.

(3.) With due respect to the learned Judge, we do not accept the said proposition. The Collector was discharging duties as the appellate authority under the Act and therefore, was obliged to act well within the four corners of the Act and the Rules framed thereunder. He could not adopt a procedure, which has not been mentioned either in the Act or in the Rules. Even assuming that the Rules directed service through Registered Post in a case initiated by the State, but when an appeal is preferred by a private person under the Act and when in respect thereof, assuming nothing has been mentioned in the Act or in the Rules, the Collector was required at least to follow that procedure which was made applicable to the procedure in relation to a proceeding initiated by the State and could not create a procedure of his own proceeding on the basis that there is a vacuum. Further more, in relation to service by Registered Post there is a statutory presumption; whereas in relation to service through a process server there is no such presumption, requiring independent satisfaction, and accordingly, it was absolutely unwise on the part of the Collector, to ignored the procedure of service through Registered Post and to adopt the procedure of service through process server and not to be satisfied in that regard. Lastly, the impugned order was a mala fide order for the same records that the service return has not yet been received but still then on the ground of default the appeal was dismissed.