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2012 DIGILAW 1172 (PAT)

Krishna Dev v. Krishnadeo Sah

2012-08-24

KISHORE K.MANDAL

body2012
ORDER Since the facts and the issue(s) involved in both the writ applications are inter-related and, as such, they have been heard together with the consent of the parties and are being disposed of by this common order. 2. Present applications arise out of a proceeding taken up by the petitioner under the provisions of the Bihar Privileged Persons Homestead Tenancy Act, 1947 (for short the ‘Act’). Private respondents in both the writ applications are the land holder. CWJC No. 10365 of 2004 has been filed seeking appropriate direction upon the respondents for effecting Dakhal Dehani of the petitioner on plot no. 1511 (02 decimal) and plot no.1510 (01 decimal) situate in Mauza Makhdumpur within Korha police station in the district of Katihar. CWJC No. 12004 of 2009 was originally filed for quashing the order dated 24.02.2009 (Annexure-6) passed in Basgit Purcha Case No. 496 of 97-98 by the Respondent-District Collector. Interlocutory application no. 1805 of 2012 was filed whereby the petitioner sought quashing of the order dated 02.08.2009 (Annexure-8 to the interlocutory application) passed by the Circle Officer in Basgit (Homestead) Misc. Case No. 02/09-10 by which the said respondent allegedly modified the purcha earlier issued in favour of the petitioner (Annexure-1 to CWJC No. 10365 of 2004). 3. Relevant facts giving rise to the present writ applications, briefly stated, are as under:- Petitioner claiming possession over the subject land appertaining to khata no.58, khesra no. 1511 (0.02 decimal ) and khata no.1510(0.01 decimal) situate in Mauza Makhdumpur instituted a proceeding under the Act for issuance of basgit purcha treating him to be the privileged tenant under the respondent land holder. Some time in 1975, he was issued a basgit purcha in respect of khesra no.1511 only but showing an area of 03 decimal in case no. 5/74-75. Petitioner claims to have paid the land rent in respect of three decimals of land. Since he was not in physical possession over 01 decimal of land of khesra no.1510, he made diverse applications for taking steps for restoring his possession over 01 decimal of land appertaining to khesra no.1510. 5/74-75. Petitioner claims to have paid the land rent in respect of three decimals of land. Since he was not in physical possession over 01 decimal of land of khesra no.1510, he made diverse applications for taking steps for restoring his possession over 01 decimal of land appertaining to khesra no.1510. It is the case of the petitioner that no action was taken which prompted him to file application before the higher revenue authority but the same was also not taken care of and as such he filed the writ application bearing CWJC No. 10365 of 2004 directing the respondents to take steps to give him possession over 01 decimal of land appertaining to khesra no.1510. In the second writ application (CWJC No. 12004 of 2009) he has challenged the order of the Respondent-Collector dated 24.02.2009 passed in Misc. Case No. 496/97-98 (Annexure-7) whereby his prayer to insert plot no.1510 measuring an area of 01 decimal in purcha earlier issued in his favour was directed to be disposed of by the Circle Officer in accordance with law after fresh measurement and affording opportunity of hearing to the party. In the light of the aforesaid order, the Respondent-Circle Officer passed a fresh order in Basgit Misc. Case No. 02/09-10 (Annexure-8 to the interlocutory application) whereby the claim of the petitioner in respect of 01 decimal of land appertaining to khesra no.1510 was negated and it was directed that the revenue record be accordingly altered/amended/corrected. Such order was passed after making fresh measurement of the land which was earlier settled in favour of the petitioner by issuing purcha under the Act. Let it be recorded that earlier to the order contained in Annexure-8 to the interlocutory application, the Respondent-Circle Officer had passed an order dated 01.08.2009 in the light of the direction of the Respondent Collector in Misc. Case No.496/97-98 which has not been challenged. Said order has been enclosed as Annexure-C to the counter affidavit filed on behalf of the respondents. 4. Learned counsel for the petitioner submits that once a purcha has been granted, there is/was no scope for amending the same by deleting or reducing the area from 03 decimals to 02 decimals as there is no provision for review in the Act. 5. 4. Learned counsel for the petitioner submits that once a purcha has been granted, there is/was no scope for amending the same by deleting or reducing the area from 03 decimals to 02 decimals as there is no provision for review in the Act. 5. Learned counsel for the respondents, on the other, hand relying on the provisions contained in section 21 of the Act, takes a stand that such amendment/correction can always be ordered/granted if the propriety so demands. 6. Grant of purcha pre-supposes that the privileged tenant is in possession thereof. The prayer made in the writ application being CWJC No. 10365 of 2004 cuts at the root of the claim of the petitioner in so far as deletion of 01 decimal of land from purcha by the impugned order is concerned as admittedly he was never in occupation of the land as tenant. Purcha under the Act is granted upon demonstrating actual possession over the land and establishing relationship of the land lord and the tenant between the parties and also on showing that that privileged tenant was allowed/inducted as tenant in respect of the subject land on the basis of an implied contract to compensate the landlord therefor. It has been further submitted on behalf of the respondents that from the very beginning the said respondent(s) have his/their residential house over plot no. 1510. This is the reason that the petitioner was satisfied for more than 25 years in not claiming insertion of plot no.1510 in the basgit parcha. It has also been contended that in terms of the order dated 24.02.2009 passed by the Respondent Collector in Misc. Case No. 496/97-98 (Annexure-7 to CWJC No. 120041) a joint inspection was made by the DCLR as well as the Anchal Adhikari in which it was found that the petitioner was never in possession of plot no.1510 measuring an area of 01 decimal as tenant. The area of the said plot was thus wrongly/inadvertently incorporated in the basgit parcha issued to the petitioner which necessarily called for correction. The petitioner on such verification and measurement, as per the order of the Respondent-District Collector, was found in possession of 02 decimals of land appertaining to khata no.1511 as tenant under the private respondents. Accordingly, order was passed on 1.8.2009 by the Respondent-Circle Officer which, as noted above, has not been challenged. 7. The petitioner on such verification and measurement, as per the order of the Respondent-District Collector, was found in possession of 02 decimals of land appertaining to khata no.1511 as tenant under the private respondents. Accordingly, order was passed on 1.8.2009 by the Respondent-Circle Officer which, as noted above, has not been challenged. 7. It further appears that the petitioner himself by filing application in the court below and thereafter before this Court has admitted that right from the date of issuance of purcha he had no possession as tenant over plot no.1510. The Collector under the Act having noticed apparent contradiction in the reports on record directed for fresh measurement of the land in possession of the petitioner as privileged tenant and to correct the records in accordance with the aforesaid measurement. The respondents have placed on record the document indicating that in the light of the order of the Collector the Circle Officer and other revenue officials made on spot verification of the land after measurement whereafter it was found that the petitioner was in occupation of only 2 decimals of land appertaining to plot no.1511 right from the date of issuance of purcha. The private respondents had dwelling structure on plot no.1510. In the light of the aforesaid fact the revenue records were directed to be amended/corrected in accordance with actual possession. This necessarily called for corrective step whereby purcha issued in favour of the petitioner was treated only in respect of 02 decimal of land appertaining to plot no.1511. Such exercise of jurisdiction of the Respondent-Collector u/s 21 of the Act, in the particular facts of the case, does not merit interference by invoking discretionary writ jurisdiction of this Court. The relief prayed for in CWJC No. 10365 of 2004, therefore, is also declined. Both the applications are, accordingly, dismissed. No costs.