Mohd. Quayum v. State Of Bihar — 1996 DIGILAW 370 (PAT)

Judgment A. K. Ganguly, J. 1. This writ petition is filed for quashing the impugned order dated 19-3-1984 passed by the anchal Adhikari in Basgir Parcha Case no.28/83 cancelling the Basgir Parcha granted in favour of the petitioner several years back. By the said order the Basgir Parcha which was for ten decimals of land was sought to be modified only for five decimals of land. Another order of which quashing is also sought for is dated 29.3.1984 by which the Anchal Adhikari directed the halka Karamchari to cancel the jamabandi of the petitioner in respect of five decimals of land for which by order dated 19.3.1984 the Anchal adhikari had cancelled the Parcha of the petitioner. 2. No one appears for the State. There is no counter-affidavit on the record either. 3. A somewhat interesting question of law has been raised in this writ petition. 4. The petitioner has stated that on 24.10.1970 he was granted Parcha in Form-G under sub-rule (5) of Rule 5 framed under the Privileged Persons homestead Tenancy Act in respect of 10 decimal of land in Mauza Sitnabad pertaining to Khata No.857 (688, new)Plot No.1072 (plot No.307, new) vide case No.70-71. 5. The main ground of challenged against the impugned order is two fold. The first ground is that an order granting Parcha is final under sec.18 of the Bihar Privileged Persons homestead Tenancy Act (hereinafter referred to as the said Act) and the same can only be subject to the provisions of Sec.21 of the said Act. 6. Learned counsel for the petitioner submits that in this case parcha has been granted in favour of the petitioner in the month of October, 1970. At that time when the Parcha was granted the words "subject to the provisions of Sec.21," which were inserted by Act 11 of 1989, were not there. The said amendment will not have any retrospective effect. Therefore, the finally of the petitioners Parcha will be governed by the un-amended Sec.18 of the said Act. 7. The second submission is that in the instant case assuming Sec.21 of the said Act applies, the impugned order has not been passed in accordance with Sec.21 of the said Act inasmuch as the impugned order has been passed by the Anchal Adhikari and not by the "collector of the district". 8. 7. The second submission is that in the instant case assuming Sec.21 of the said Act applies, the impugned order has not been passed in accordance with Sec.21 of the said Act inasmuch as the impugned order has been passed by the Anchal Adhikari and not by the "collector of the district". 8. Learned Counsel for the petitioner submitted that power under section 21 of the said Act is exercisable only by the "collector of the district" which means the District Magistrate or the Collector of the district himself. In respect of several other provisions of the said Act, namely, Secs.6, 8,13 and 15 the expression "collector" has been used for exercise of the certain power mentioned therein. Here by the expression "collector", the Collector as defined in Sec.2 (b) of the said Act has been meant. In those sections, the words "collector of the district" have not been mentioned. The petitioners submission is that the Collector as defined under Sec.2 (b) of the said Act may be any officer appointed by the state Government to discharge all or any of the functions of a Collector under the Act but Collector of the district cannot be the same thing. The collector of the district will be only the district Magistrate of the district in question and no body else. 9. This Court accepts the aforesaid contention of the learned counsel for the petitioner. This Court is also of the view that tinder the Act a conscious difference has been brought between the two expressions "collector" and the "collector of the district". 10. In view of the aforesaid legal position, the impugned order passed by the Anchal Adhikari in exercise of the power under Sec.21 of the said Act is ultra vires the provisions of the said Act and without jurisdiction. Thus the impugned orders at Annexures 6 and 7 are hereby quashed. This writ petition is accordingly allowed. There will be no order as to cost. Petition Allowed.