BINAY KUMAR JHA vs STATE OF JHARKHAND AND ANR.

1. Heard Mr. Om Prakash Twari, counsel for the petitioner and Mr. Nagmani Tiwari, counsel appearing on behalf of the private respondents.Â

This writ petition has been filed by the petitioner for quashing the order dated 13.02.2009, passed by the Additional Collector Palamu at

Daltonganj, in Demarcation Appeal Case No. 12/2008-09, whereby the learned Additional Collector has upheld the order dated 04.09.2008 passed by

the Circle Officer, Sadar Medninagar, Daltonganj in Demarcation Case No. 55/2008-09.Â

Counsel for the petitioner submits that the impugned orders are fit to be set aside on the short point that the same has been passed without

considering the relevant revenue records, deeds, returns and demands and without giving any opportunity to the petitioner of being heard and

demarcation was done in absence of the petitioner. Counsel for the petitioner further submits that the impugned order passed by the Circle Officer in

Demarcation Case No. 55/2008-09 is fit to be set aside as the demarcation itself has been done in absence of the petitioner and without the knowledge

of the petitioner. It is further submitted that the appellate authority has also dismissed the appeal case no. 12/2008-09 vide order dated 13.02.2009

without considering this aspect of the matter.Â

The counsel for the petitioner submits the facts as under:-Â

On 28.07.2008, the respondent no. 4 herein through her power of attorney holder Manohar Ram (respondent no. 5) had filed application for

demarcation of land pertaining to portion of plot no. 233 and plot no. 281, both under Khata No. 44 in Village Nimia Circle, Sadar Medninagar. He

submits that the demand of the said land was running in the name of Damodar Jha and others who are co-sharers of the property and the petitioner

claims to be the co-sharer of the property. Notices were issued by the Circle Officer to the adjacent land holders and co-sharers for the purposes of

demarcation of the said land and the matter was fixed on 31.07.2008. The case of the petitioner is that the Circle Officer, served the notice to the

adjacent raiyat so that they could be present on the spot, but the notices were not issued upon other co-sharers of the property and accordingly the

petitioner submits that the petitioner was not heard and no opportunity was given to the petitioner at the time of demarcation. The petitioner submits

that the petitioner is highly prejudiced by the action of the Circle Officer, as the petitioner is one of the co-sharer of the property, therefore he ought to

have been heard in the matter. Counsel for the petitioner submits that the hearing of the petitioner was also most necessary because of the fact that

the petitioner has a specific case that Kalyani Jha (Respondent No. 4) was not only daughter of Damodar Jha and she could not have executed the

power of attorney in favour of Mahohar Ram (Respondent No. 5)Â in connection with the entire property.Â

Upon this, counsel for the respondent Mr. Nagmani Tiwari submits that so far as right of Ms. Kalyani Jha who executed the power of attorney etc.

is concerned, the contention of the petitioner is related to merits of the matter and the same cannot be appreciated in the writ jurisdiction. So far as

violation of natural justice is concerned, he submits that the matter can at best be remanded to the Circle Officer for fresh consideration so that the

petitioner shall also be heard and the demarcation may be done after hearing the contention of the petitioner.Â

Counsel for the respondent-state Mr. Vineet Prakash, A.C. to S.C. (L&C) submits that the matter can be remanded to the Circle Officer for fresh

consideration.Â

After hearing counsel for the parties and after going through the records of the case, it appears that the petitioner has claimed to be the co-sharer

of the property and has questioned the power of attorney executed by Kalyani Jha (Respondent No. 4) in favour of Manohar Ram (Respondent No.

5) on the basis of which petition for demarcation of the land was filed before the Circle Officer and accordingly the petitioner ought to have been

heard in the matter. From perusal of the records it appears that the demarcation of the property was done in absence of the petitioner and the

specific case of the petitioner is that the petitioner was not given opportunity of hearing before the Circle Officer. Considering the fact that petitioner

was not heard in demarcation case no. 55/2009 and demarcation of the property was done in the absence of the petitioner who claims to be the co-

sharer of the property and this aspect of the matter was not properly considered by the appellate authority also, the impugned orders dated 13.02.2009

passed in Demarcation Appeal Case No. 12/2008-09, as well as the order dated 04.09.2008 in Demarcation Case No. 55/2008-09 are hereby set aside

and the matter is remanded back to the Circle Officer Sadar Medninagar, Daltonganj for passing fresh order in Demarcation Case No. 55/2008 after

hearing all the interested parties including the petitioner. The Circle Officer is directed to take fresh steps and pass fresh order in accordance with law

after considering the contentions raised by the parties before him within a period of three months from the date of receipt of the copy of this order.Â

With the aforesaid observation, this writ petition is disposed of.  Â