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2013 DIGILAW 650 (PAT)

Rajendra Tanto v. State of Bihar

2013-06-18

BIRENDRA PRASAD VERMA

body2013
ORDER 1. The petitioner, claiming to be a privileged person under the meaning of Bihar Privileged Persons Homestead Tenancy Act, 1947 (in short “the Act”), has filed the present writ petition under Article 226 of the Constitution of India assailing the validity and correctness of order dated 23.06.2004 passed in Revenue Miscellaneous Case No. 11 of 1993-94 by the respondent District Collector, Bhojpur, Ara, as contained in Annexure-8 to the writ petition, whereby and whereunder aforesaid purported appeal filed on behalf of the respondent no.5 in terms of Section 21 of the Act, has been allowed and the order dated 22.03.1989 passed in Basgit Parcha Case No. 2/88-89 (Annexure-3) by the Anchal Adhikari, the Collector under the Act, allowing the claim of basgit parcha in favour of the petitioner, has been set aside. 2. Learned counsel appearing on behalf of the petitioner submits that the petitioner is a privileged tenant with respect to a parcel of land bearing Khata no. 420, Khesra No. 946, area 3 decimals situate at Mauza-Garahani, P.S. Charpokhari, District- Bhojpur. The case of the petitioner is that he filed an application before the respondent Anchal Adhikari for issuance of parcha in his favour with respect to the land in dispute. According to the learned counsel for the petitioner, after following the procedure prescribed under the Act and Rules made thereunder, the respondent Anchal Adhikari passed final order dated 22.03.1989 (Annexure-3) and directed for issuance of homestead parcha in favour of the petitioner. It is also the case of the petitioner that the land in question was originally belonged to one Lakhan Das, who died prior to passing of the final order by the respondent Anchal Adhikari and despite issuance of notice to his daughter, she did not appear in the proceeding under the Act as she could not be traced out; and the respondent no.5, subsequently, purchased the land in question. The claim raised on behalf of the respondent no.5 with respect to the land in question was not accepted by the consolidation authority. It is highlighted that by concealing the material facts the respondent no. 5 filed a petition under Section 21 of the Act after undue delay of more than four years. The claim raised on behalf of the respondent no.5 with respect to the land in question was not accepted by the consolidation authority. It is highlighted that by concealing the material facts the respondent no. 5 filed a petition under Section 21 of the Act after undue delay of more than four years. It is contended that when the final order was passed in favour of the petitioner on 22.03.1989 (Annexure-3), at that time Section 21 of the Act was not on the statute book and was, subsequently inserted by Bihar Amending Act 11 of 1989. Therefore, according to the learned counsel for the petitioner, the District Collector had no power to entertain the petition filed on behalf of the respondent no.5. In support of the above contention he has placed reliance on a judgment of this Court in Sri Bikrama Lal vs. State of Bihar [ 2004(2) PLJR 261 ]. 3. Learned counsel for the respondent no. 5 has opposed the prayer and has submitted that before passing the final order dated 22.03.1989 (Annexure-3) opportunity of hearing was not given either to the landlord/ raiyat or to his heirs and legal representatives or to the purchaser, namely the respondent no.5. According to him, the order dated 22.03.1989 (Annexure-3) has been passed in violation of the principles of natural justice, and has rightly been set aside by the District Collector. He has also submitted that with respect to the land in dispute a Title suit is also pending before the civil Court between the parties. However, with respect to the impugned order dated 23.06.2004 (Annexure-8) he has fairly conceded that once the District Collector has exercised his powers under Section 21 of the Act and once the original order passed by the respondent Anchal Adhikari was set aside, then the respondent District Collector was obliged to remit the matter back to the original authority for deciding the matter afresh in accordance with the provisions of the Act and the Rules made thereunder. 4. After having heard the parties and taking into consideration the mandate of Section 21 of the Act, this Court is of the opinion that the matter requires reconsideration and fresh decision by the District Collector, Bhojpur at Ara. 4. After having heard the parties and taking into consideration the mandate of Section 21 of the Act, this Court is of the opinion that the matter requires reconsideration and fresh decision by the District Collector, Bhojpur at Ara. By the impugned order dated 23.06.2004 (Annexure-8) though he has allowed the appeal filed on behalf of the respondent no.5, but has not remitted the matter back for fresh decision, which he was legally obliged to do so. 5. In the result, the present writ petition succeeds. The impugned order dated 23.06.2004 (Annexure-8) passed in Revenue Misc. Case No. 11 of 1993-94 by the District Collector, Bhojpur is hereby set aside and the matter is remitted back to the District Collector, Bhojpur at Ara for fresh decision after giving opportunity of hearing to all concerned. For deciding the matter afresh by the respondent District Collector, Bhojpur at Ara, the petitioner as also the respondent no. 5 shall be at liberty to raise all the issues, which have been raised in the present proceeding, and which are available to them under the law. The parties are at liberty to place all the materials in support of their respective claims and only thereafter the District Collector, Bhojpur shall decide the matter afresh strictly in accordance with the provisions of the Act and the Rules made thereunder expeditiously preferably within a period of six months. 6. The parties are left to bear their own costs.