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2006 DIGILAW 994 (JHR)

Ashok Kumar Nahar v. State Of Bihar

2006-08-02

AMARESHWAR SAHAY

body2006
JUDGMENT Amareshwar Sahay, J. 1. In this writ application, the petitioner has challenged the order dated 10.11.1995 passed by the Sub-Divisional Officer, Dumka in Rev. Misc. Case No. 149/1989. 90 contained in Annexure 6 whereby, the respondent No. 5 was allowed to retain the possession of land measuring 1 Katha and the hut constructed over it and also to retain possession of the adjacent 2 Bigha of Parti land for her livelihood. The petitioner has further challenged the order dated 15.7.1998 (Annexure-7) passed by the Deputy Commissioner, Dumka in appeal against the order of the Sub- Divisional Officer, Dumka, whereby he dismissed the appeal and directed the Sub- Divisional Officer, Dumka, to issue Parcha in favour of the respondent No. 5 Barki Baski under the provisions of the Bihar Privileged Persons Homestead Tenancy Act, 1947. The petitioner has also challenged An-nexure-8 which was passed by the Halka Karamchari issuing Parchas in Favour of the respondent No. 5 pursuant to the order passed by the Sub-Divisional Officer, and the Deputy Commissioner contained in An-nexures-6 and 7 mentioned above. 2. The case of the petitioner is that the land appertaining to Mauza Bandarjori within Ward No. 16 of Dumka Municipality appertaining to Dagg No. 6, Khata No. 75/2 area measuring 12 Bighas 7 Kathas 18 Dhurs falls within the Municipal area of Dumka Municipality and it was recorded originally in the name of St. John Daly as "Basaurhi Raiyat". The said St. John Daly executed a Will on 10.4.1938 in favour of his wife Mrs. Emily Martha Daly. After the death of St. John Daly, his widow Mrs. Emily Martha Daly got the Will probated from the Court of District Judge vide order dated 17.6.1939 and thereafter, she came in exclusive possession of those lands including the building and structures standing thereon and she started paying rent to the then land lord. She transferred the aforesaid lands and buildings by registered deed of sale dated 15.2.1944 in favour of the father of the petitioner namely Ajay Singh Nahar, who came in possession thereof after the said transfer of the land in his favour and he started paying rent. After the death of Ajay Singh Nahar, the petitioner inherited the aforesaid land and building and was paying rent to the ex-landlord and after vesting, to the State of Bihar and also to Dumka Municipality. After the death of Ajay Singh Nahar, the petitioner inherited the aforesaid land and building and was paying rent to the ex-landlord and after vesting, to the State of Bihar and also to Dumka Municipality. The name of the petitioner was entered in Register-II maintained in Circle Office. 3. Subsequently, a portion of the building the out house was let out to Department of Industries to open District Industry Centre. In the office of the District Industry Centre, the husband of the respondent No. 5 was employed as a night watchman and he was accommodated to stay with his wife in the out-house situated in the said premises. After his retirement, one Jas Bahadur succeeded him on the post of night watchman and also accommodation. But out of sympathy, the petitioner appointed the respondent No. 5 Barki Baski as maid servant specially to look after his ailing old mother and allowed her to stay with her husband in a Kuchcha hut spread in an area of one Katha in the aforesaid land. 4. The further case of the petitioner is that since the said property was located in a prime location just adjacent to the Bungalow of the Deputy Commissioner and therefore, that attracted some greedy eyes and under a calculated move, in order to grab the petitioners property, the respondent No. 5 was used by those vested interest as an instrument and thereby, the vested interest succeeded in getting an application filed before the Sub-Divisional Officer, Dumka, by the respondent No. 5 wherein she claimed the entire area of the land in question, which was registered as Revenue Misc. Case No. 149/1989-90. The petitioner was noticed by the Sub-Divisional Officer, in response of which he filed its reply. 5. The Sub-Divisional Officer, (respondent No. 3) by his order dated 10.11.1995 as contained in Annexure-6 passed an order to do natural justice to the respondent No. 5 and ordered for giving the land measuring 2 Bighas one Katha to the respondent No. 5. The petitioner thereafter preferred an appeal before the Deputy Commissioner. 5. The Sub-Divisional Officer, (respondent No. 3) by his order dated 10.11.1995 as contained in Annexure-6 passed an order to do natural justice to the respondent No. 5 and ordered for giving the land measuring 2 Bighas one Katha to the respondent No. 5. The petitioner thereafter preferred an appeal before the Deputy Commissioner. The Deputy Commissioner, vide his order dated 15.7.1998, as contained in Annexure-7, by accepting the plea of the petitioner that under the Santhal Pargana Tenancy Act, the land in question could not have been settled with the respondent No. 5 since the same was recorded as Basaurhi Raiyat but the Deputy Commissioner ordered that the said land of 2 Bigha and 1 Katha which was in possession of the respondent No. 5 as a licensee be given to her under the Privileged Persons Homestead Tenancy Act, 1947 and thereby, directed for issue of Parcha in favour of the respondent No. 5. Consequently, Annexure-8 dated 17.2.1999 was passed issuing Parcha in favour of the respondent No. 5 with respect to the land in question. 6. Mr. V. Shivnath, learned Counsel appearing for the petitioner submitted that the order passed by the Sub-Divisional Officer, as well as by the Deputy Commissioner was absolutely illegal and without jurisdiction. He submitted that the Deputy Commissioner ordered to issue Parcha in favour of the respondent No. 5 under the Privileged Persons Homestead Tenancy Act, 1947. But. in fact the said Act cannot be made applicable when the land is situated within a Municipal area. In this regard, he referred to Section 3 of the Bihar Privileged Persons Homestead Tenancy Act, 1947 which reads as under: 3. But. in fact the said Act cannot be made applicable when the land is situated within a Municipal area. In this regard, he referred to Section 3 of the Bihar Privileged Persons Homestead Tenancy Act, 1947 which reads as under: 3. Act not to apply to certain lands, buildings or areas.-This Act shall not apply to- (a) any land or building, residential or otherwise,- (i) appertaining to an industrial establishment; (ii) vested in the Government or a local authority; and (b) any land situated within- (i) any area which has been, or may hereafter be, constituted a municipality or notified area under the provisions of the Bihar and Orissa Municipal Act, 1922 (B and O. Act VII of 1922) or a Union Committee constituted under Section 38 of the Bihar and Orissa Local Self-Government Act of 1885 (Bengal Act, III 1885) (ii) vested in the Government except homestead deemed to have been acquired by the State Government under Sub-section (2) of Section 17-A or a local authority; (iii) any other area which is declared by the State Government by notification issued in this behalf to be a place of business or fair 7. In support of his submission, he has also relied on a decision in the case of Shyamlal Sahu and Anr. v. State of Bihar and Ors. . 8. Mr. H.K. Mahto, learned Counsel appearing for the respondent No. 5 tried to support the order of the Sub-Divisional Officer, and the Deputy Commissioner as contained in Annexures-6 and 7 by submitting that the said order was passed in view of the fact that the respondent was a original landless lady and therefore, to do natural justice to her, the Parcha was issued in her name so that she can maintain herself. 9. From bare perusal of Section 3(b) of the Bihar Privileged Persons Homestead Tenancy Act, 1947, quoted above, it appears that it specifically says that this Act shall not apply to any land situated within any area which has been constituted a municipality or notified area under the provisions of the Bihar and Orissa Municipal Act, 1922. There is no dispute in this case with regard to the fact that the land in question is located adjacent to the Bungalow of the Deputy Commissioner and it falls within the Municipal limits of Dumka Municipality. 10. Patna High Court, in the case of Shyamlal Sahu and Anr. There is no dispute in this case with regard to the fact that the land in question is located adjacent to the Bungalow of the Deputy Commissioner and it falls within the Municipal limits of Dumka Municipality. 10. Patna High Court, in the case of Shyamlal Sahu and Anr. (supra), has also held that the Bihar Privileged Persons Homestead Tenancy Act, 1947 is not applicable to the lands situated within the municipality and therefore, ground of Parcha under the Act in respect of such land is illegal. 11. In this view of the discussions and findings above, I hold that the order passed by the Sub-Divisional Officer, as contained in Annexure-6 dated 10.11.1995 and the order passed by the Deputy Commissioner dated 15.7.1998 as contained in Annexure-7 and the consequential order dated 17.2.1999 as contained in Annexure-8 are absolutely illegal and without jurisdiction. Accordingly, this writ application is allowed and the orders as contained in Annexures-6, 7 and 8 are hereby quashed. There shall be no order as to costs.