Research › Search › Judgment

Patna High Court · body

2008 DIGILAW 650 (PAT)

Most. Jamuna Devi v. State Of Bihar

2008-04-29

CHANDRAMAULI KR.PRASAD, J.N.SINGH

body2008
Judgment 1. Short facts giving rise to the present appeal are that by order dated 16.10.1969, Basgit Purcha was given to one Jahanwati Devi for 15 dhurs of land, bearing plot no.892, khata no.200 at village Suja in the district of Begusarai, under the provisions of the Bihar Privileged Persons Homestead Tenancy Act (hereinafter to be referred to as the Act). Yogendra Narayan Mishra, respondent no.4 herein was its raiyat before grant of Basgit Purcha. Said Jahanwati Devi died in the year 1980 and long after her death Tirpit Narayan Jha filed aplication in the year 1992 for correcting the Basgit Purcha which was registered as Basgit Purcha Case No.22 of 1992-93, inter alia, on the ground that he is residing with her sister Jahanwati Devi who died issueless Respondent no.4 objected to the prayer made by said Tirpit Naraya Jha, but the Circle Officer overruled the same and by order dated 16.1.199b directed for issuance of amended Basgit Purcha. Aggrieved by the same, respondent no.4 preferred application before the Collector which was registered as Revenue Case No.15 of 1993, The Collector by order dated 31.7.2001 set-aside the order passed by the Circle Officer inter alia on the ground that the Circle Officer had no power to make any alteration in Basgit Purcha issued earlier. 2. Tirpit Narayan Jha aggrieved by the same, preferred CWJC No. 14486 of 2001 before this Court. A learned Single Judge by order dated 5.1.2007 had dismissed the writ application. 3. Aggrieved by the same, the heirs of Tirpit Narayan Jha have filed this appeal under Clause X of the Letters patent. 4. Mr. V. Nath appearing on behalf of the appellants submits that mistakenly an application was filed for making correction in Basgit Purcha, but in fact the prayer was to enter the name in the register maintained under Ruel 13 of the Bihar Privileged Persons Homstead Tenancy Rules, hereinafter referred to as the Rules. He submits that under section 17 (A) of the Act, a privileged tenant becomes a permanent tenant entitled to hold the homestead under the State Government, which shall be deemed to have been acquired by the State Government and on payment of compensation land-lords interest in the homestead comes to an end. He submits that under section 17 (A) of the Act, a privileged tenant becomes a permanent tenant entitled to hold the homestead under the State Government, which shall be deemed to have been acquired by the State Government and on payment of compensation land-lords interest in the homestead comes to an end. It has also been pointed out that subject to payment of such rent as may be agreed, a privileged tenant holds permanent tenancy in holding and by virtue of the definition of the term permanent tenancy in section 2 (g) of the Act it became heritable in the same manner as any other immovable property. In view of the aforesaid, according to Mr. Nath, respondent no.4 has no right over the property and the appellants being the heirs of Jahanwati Devi, their names are fit to be substituted in the Register in her place. 5. Mr. Ebrahim Kabir appearing on behalf of respondent no.4 had attempted to challenge the grant of Basgit Purcha to Jahanwati Devi herself by order dated 16.10.1969. He also points out that the appellants cannot be given Basgit Purcha as they have sold the property prior to filing of an application in the year 1992 for correction of Basgit Purcha. 6. Rival submissions necessitate examination of the scheme of the Act and Rules framed thereunder. 7. Section 4 of the Act, inter alia, provides the right of a privileged tenant over the land to be given to him, Same reads as follows: "4. Privileged tenant to have permanent tenancy in his holding.- Subject to the payment of such rent as may be agreed upon between a privileged tenant and his landlord, or where there is no contract or no valid contract in respect of rent or whether the rent contracted is alleged to be unfair or inequitable, such rent as may be fixed by the Collector under the proviso to Sub-section (3) of section 17-A a privileged tenant shall have a permanent tenancy in the homestead held by him at any time continuously for a period of one year." 8. From the plain readying of the aforesaid provision, it is evident that subject to payment of such rent a privileged tenant shall have a permanent tenancy in homestead held by him. The expression permanent tenancy has been defined under section 2(g) of the Act. From the plain readying of the aforesaid provision, it is evident that subject to payment of such rent a privileged tenant shall have a permanent tenancy in homestead held by him. The expression permanent tenancy has been defined under section 2(g) of the Act. Same reads as follows: "permanent tenancy" means a tenancy which is heritable in the same manner as any other immovable property and which is transferable subject to the provisions of this Act" 9. The definition of the expression permanent tenancy means a tenancy which is heritable in the same manner as any other immovable property. Section 17 (A) of the Act talks of the right of the privileged tenant and the right of the landlord. Same reads as follows: "Privileged tenant having permanent tenancy in his homestead to hold it under the State Government.- (1) Subject to the other provisions contained in this Act, a privileged tenant having permanent tenancy in homestead under section 4 shall hold the homestead under the State Government and the amount of rent payable to the landlord by the privileged tenant in respect of the homestead shall be payable by the privileged tenant to the State Government. (2) The homestead which a privileged tenant holds under the State Government under sub-section (1) shall, for the purpose of payment of compensation to the landlord under whom the held it, be deemed to have been acquired by the State Government under this Act. (3) The amount of compensation payable to the landlord by the State Government under sub- section (2) shall be ten times of the rent payable to the landlord by the privileged tenant in respect of the homestead which shall be paid to the landlord by the State Government in cash in one installment: provided that where there is ho contract or no valid contract between landlord and his privileged tenant as to the rent payable for the homestead or where the rent contracted is, in the opinion of the Collector unfair or inequitable, the Collector shall settle fair and equitable rent of the homestead after making such enquiry as he may deem fit and after taking into consideration the importance of the area where such homestead is situated and the rent, if any, prevailing in that area for other similar homesteads, before the amount of compensation payable to the landlord by the State Govt. is assessed. is assessed. (4) The rent settled by the Collector under the proviso to sub-section (3) shall always be in cash and take effect from such date as the Collector may fix; (5) the rent which was payable to the State Government by the privileged tenant under sub- section (1) or the rent settled by the Collector under the proviso to sub-section (3) shall be the rent fixed in perpetuity; (6) The Collector on his own motion, or on any information received by him that the rent fixed by the Circle Officer is not proper, may review the orders passed by the Circle Officer regarding the fixation of such rent and may pass such orders redetermining the rent, as he deems fit." 10. From the plain reading of the aforesaid provision it is evident that a privileged tenant having permanent tenancy in homestead shall hold the homestead under the State Government and the amount of rent is required to be paid by such privileged tenant to the State Government. Section 17-A (2) of the Act inter alia makes it that the homestead which a privileged tenant holds, shall be deemed to have been acquired by the State Government, Under Rule 13 of the Rules the Collector is required to maintain a register in form J in respect of the privileged tenant. Thus, from the scheme of the Act it is evident that when a person is declared to be a privileged tenant and by issuance of a Basgit Purcha he becomes a privileged tenant to have permanent tenancy in the said homestead. By virtue of section 17 (A) (1) of the Act, he becomes a tenant of the State Government and the homestead deemed acquired by the State Government by virtue of section 17 (2) of the Act. A permanent tenancy thus created becomes a heritable property in the same manner as any other immovable property. In view of aforesaid legal position the property which is the subject matter of Basgit Purcha of Jahanwati Devi becomes her heritable property and in view of section 17-A (3), on payment of compensation respondent no.4 shall have no subsisting interest in the same. 11. Basgit Purcha was given to Jahanwati Devi as back as on 16.10.1969 and at such distance of time its validity is not fit to be gone into. 12. Although Mr. 11. Basgit Purcha was given to Jahanwati Devi as back as on 16.10.1969 and at such distance of time its validity is not fit to be gone into. 12. Although Mr. Nath has contended that the application in fact was filed for correction in register but the Circle Officer erroneously had directed for correction of the Purcha. In the facts and circumstances of the case, we are of the opinion that the appellants, if so chose, may file an application for correction of the register as maintained under Rule 13 of the Rules. Appellants filing the same, the Circle Officer shall give wide publicity to the same and in case it comes to the conclusion that the appellants are the heirs of Jahanwati Devi and the homestead has been inherited by them being the heirs of permanent tenant Jahanwati Devi, appropriate orders in accordance with law shall be passed expeditiously. The order passed by the Circle Officer, the Collector and the learned Single Judge, impugned in the present appeal, are accordingly set aside. Appeal stands allowed accordingly.