Probodh Kumar Kundu vs Commissioner, Bhagalpur Division and Others

U.P. Singh, J.—In this writ application the petitioner has challenged the order of the Sub-divisional Officer dated 10.10.1979 contained in Annexure-1 of the supplementary affidavit whereby the petitioner has been evicted from the raiyati land in question. The order was passed by the Sub-divisional Officer in the purported exercise of his jurisdiction u/s 42 of the Santhal Pargana, Tenancy (Supplementary Provision) Act, 1949. Section 42 reads as under:

Effect ment of a person in unauthorised possession of agricultural land:--

The Deputy Commissioner may at any time either on his own motion or on an application made to him pass an order for ejectment of any person who encroached upon, re-claimed, acquired or came into Possession of an agricultural land in contravention of the provisions of this Act or any Law or anything having the force of law in Santhal Pargana.

The Santhal Pargana Tenancy (Supplementary) Rules, 1950 which prescribes a procedure under Rule 13 which are to be followed by the courts in dealing with the application, and other proceedings under the said Act as it reads as follows:--

The Deputy Commissioner may hold a court for hearing and determining any proceeding and application under the Act, at any place within the local limits of his jurisdiction, provided that the parties to the proceeding or application, or the agents, shall have due notice to attend at such place.

The word ''Deputy Commissioner'' has been defined in Section 4(vii) which means and included the Addl. Deputy Commissioner Sub-divisional Officer or Deputy Collector'' empowered by the State Government to discharge any of the function, of the Deputy Commissioner under this Act.

There is no dispute in this case that the Sub-divisional Officer was fully authorised and competent to dispose of the application u/s 42 of the Act. The solo question raised by the petitioner''s counsel is that before exercising its jurisdiction u/s 42 of the Act ejecting the petitioner from his raiyati land, the procedure under Rule 13 ought to have been followed. Meaning thereby that the petitioner was at no stage given due notice and the order of the Sub-divisional Officer was passed behind his back. The order suffers from the said infirmity. In any view of the matter, the petitioner was required to be heard after service of due notice to him before passing an order of ejectment u/s 42 of the Act. The impugned order suffered from that infirmity as well. It is well settled principle that if the order was invalid at its very inception the same cannot be cured by appellate court. Here the question was the exercise of jurisdiction which was carried on without due notice to the petitioner. That infirmity remained uncured. Therefore, the impugned order contained in Annexure-1 of the supplementary affidavit quashed and consequently the subsequent orders passed by the Deputy Commissioner in appeal and the Commissioner in revision contained in Annexures-2 & 3 of the petition are also set aside and the matter is remitted back to the Sub-divisional Officer to consider the whole matter afresh after giving due notice to the petitioner and the other party. It shall consider the question involved in accordance with law after giving due opportunity to the parties to lead such evidence as they may deem necessary in the interest of justice. In the result, this application is allowed with the directions indicated above, but in the circumstances there will be no order as to costs.