Baijnath Thakur, Muninath Thakur and Birjanand Thakur vs The State of Bihar and Others

Birendra Prasad Verma, J.—Heard learned Senior Counsel appearing on behalf of the petitioners and learned AC to learned AAG 2 appearing on behalf of respondent No. 1 to 4. However, despite valid service of notice, respondent No. 6 to 12 have chosen not to appear and contest the claim raised on behalf of the petitioners. Though respondent No. 5 has already entered appearance through his counsel, but none is appearing on his behalf when the matter has been taken up for final hearing. The petitioners are aggrieved by order dated 7.12.1991 (Annexure-4) passed in Consolidation Revision Case No. 3141 of 1988 by respondent Joint Director of Consolidation (Headquarters), Bihar, Patna, whereby the petition u/s 35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (in short Act) filed on behalf of the respondent No. 5 has been allowed and his claim with respect to the lands under dispute has been upheld, but with certain riders.

Learned Senior Counsel appearing for the petitioners submits that earlier the claim of the petitioners with respect to the lands under dispute was upheld by the respondent Consolidation Officer, Simri, Bhojpur. The private respondents had filed the aforesaid petition u/s 35 of the Act after a long time. By order dated 26.11.1991 passed by the respondent Joint Director, lower court records were called for. It is pleaded that without waiting for receipt of lower court records, and without examining the same, the respondent Joint Director of Consolidation passed the impugned final order dated 7.12.1991. It is contended that the impugned order dated 7.12.1991 (Annexure-4) is contrary to the scheme and mandate of Section 35 of the Act.

As noticed above, no counter affidavit has been filed by the respondents. Private respondents are not represented by their lawyer. Learned counsel appearing for the State of Bihar, in absence of any counter affidavit having been filed on behalf of the State officials, has not been able to raise any dispute to the assertions made on behalf of the petitioners. In that view of the matter, facts stated in the writ petition have to be accepted.

In the aforesaid facts and circumstances, this Court is of the opinion that the matter requires reconsideration and fresh decision. Under the mandate of Section 35 of the Act, lower court records were required to be examined by the revisional authority before passing any final order. That does not appear to have been done in the present case.

For the reasons recorded above, the impugned order dated 7.12.1991 (Annexure-4) passed in Consolidation Revision Case No. 3141 of 1988 by the respondent Joint Director of Consolidation (Headquarters), Bihar, Patna, is hereby set aside and the matter is remitted back to the Director of Consolidation, Bihar, Patna, with a direction to decide the case of the parties afresh by a reasoned and speaking order strictly in accordance with law after giving an opportunity of hearing to all the parties. In the result, writ petition stands allowed to the extent indicated above. However, there will be no order as to costs.