JUDGMENT : 1. The present writ petition has been filed for quashing the order dated 11.3.2000 passed in Misc. Case No. 28/1998-99 whereby the Deputy Commissioner, Deoghar, upheld the order of the Circle Officer for removal of the encroachment from the land upon which the petitioners are in possession. 2. The factual background of the case is that the land situated at Mouza-Nawadih No. 392, Plot No. 75 appertaining to Jamabandi No. 33/6, P.S.-Palajori, Dist. Deoghar (hereinafter called the said land) was recorded as Basauri Khas Malik of the proprietor/Ghatwal namely Hari Kishore Prasad Singh. He settled the said land to different raiyats including the ancestors of some of the petitioners much before the enforcement of the Bihar Land Reforms Act, 1950. For better appreciation of the case, the details of the settlements have been given as follows: (i) One Yashoda Bala Dashi, grandmother of the petitioner no. 1 had been settled 4 decimals of land of plot no. 75 of Mouza-Nawadih by way of registered deed of settlement in the year 1946. (ii) One Rakhal Kapri had been settled 2 kathas 10 dhurs of plot no. 75, marked plot no. 75/2 of MauzaNawadih. The son of Rakhal Kapri sold the said land to one Yusuf Ali Ansari, father of the petitioner no. 2 by registered sale deed dated 29.3.1967. (iii) Bhola Nath Dutta (the father of the petitioner no. 3) had been settled 6 Kathas 5 dhurs of plot no. 75 marked as 75(ka) of Mouza-Nawadih by way of registered deed in the year 1945. (iv) One Banshi Ram Marwari (father of the petitioner no. 4) had been settled 2 Kathas of land of plot no. 75 marked as plot no. 75/6 by way of registered deed in the year 1945. (v) Bhola Nath Dutta (the father of the petitioner no. 3) had sold 2 decimals of plot no. 75 to Radha Shayam Sah (petitioner no. 5) by way of registered deed of sale dt. 25.4.1975. 3. All the petitioners are claiming their right by virtue of respective settlements in the year 1945-46 i.e. prior to 1st April, 1949 and after the settlement of the said land, Pucca building had been constructed thereon and the rent was being paid to the then Gharsara Estate and after vesting of Zamindari to the State of Bihar. 4. In November, 1998, in course of encroachment drive, the respondent nos. 4. In November, 1998, in course of encroachment drive, the respondent nos. 2 and 3 threatened the petitioners to remove their Pucca structure failing which the same would be demolished, claiming the land to be Government land. Thereafter, the petitioners filed Misc. Case No. 28 of 1998-99 in. the Court of learned Deputy Commissioner, Deoghar for a direction upon the Circle Officer, Palajori not to disturb the peaceful possession of the petitioners. The Deputy Commissioner (respondent no. 2) directed the respondent no. 3 to submit report, who in turn submitted his report stating inter alia that the then Deputy Commissioner in Review Misc. Appeal No. 36 of 1963 held that plot no. 75 of Mouza-Palajori and plot no. 1244 of Mouza-Nawadih are Govt. land. On the basis of the said report, the D.C., Deoghar passed an ex parte order dated 11.3.2000 upholding the order of the respondent no. 3 to remove the petitioners from the plot no. 75 being encroachers on the said land. 5. The learned Senior Counsel for the petitioners submits that the impugned order has been passed by the Deputy Commissioner, Deoghar on the basis of the order dt. 4.5.1964 passed in Rev. Misc. Appeal No. 36 of 1963-64 as also the judgment dated 8.12.1960 passed by the Patna High Court in M.J.C. No. 313 of 1959. However, on perusal of the order dated 4.5.1964 passed in Rev. Misc. Appeal No. 36 of 1963-64, it would be evident that one Nityanand Prasad was the appellant in the said case. The petitioners were never noticed in the said case and, therefore, giving up of the claim pertaining to Plot No. 75 by said Nityanand Prasad has no binding effect and the same cannot be made applicable to the petitioners. It is further submitted that a Basauri settlement was also made with Nityanand Prasad by registered deed dt, 26.8.1947 with respect to plot no. 73 of Jamabandi No. 33-6 and plot no. 1243 of Jamabandi No. 63 and also other plots. After vesting of Zamindari, the respondents started settling the said lands to other persons against which Nityanand Prasad filed Misc. Jurisdiction Case No. 313 of 1959 before the Patna High Court. The said case was disposed of vide judgment dt. 8.12.1960 by holding that without initiating any proceeding u/s 4(h) of the Bihar Land Reforms Act, 1950 the respondents cannot treat the settlement as a nullity. Jurisdiction Case No. 313 of 1959 before the Patna High Court. The said case was disposed of vide judgment dt. 8.12.1960 by holding that without initiating any proceeding u/s 4(h) of the Bihar Land Reforms Act, 1950 the respondents cannot treat the settlement as a nullity. Thereafter, in Rev. Misc. Appeal No. 36/1963-64 the plot nos. 73 and 1243 were released in favour of Nityanand' Prasad on his assertion that he gives up his. Claim over' plot nos. 75, 45 and 1244. The learned Senior Counsel further submits that Nityanand Prasad being one of the settlees of part of Plot No. 75 could forego/give up only that part of Plot No. 75 which actually belonged to him. The plot no. 75 is a big plot of land and there have been many settlees, who came in possession over the said plot as Basauri settlement from the ex-landlord settled in the year 194546 (prior to 1.4.1949). It is further submitted that since the petitioners were neither party in M.J.C. No. 313 of 1959 nor before the Deputy Commissioner, Deoghar in Rev. Misc. Appeal No. 36 of 1963-64, the said fact remained unclarified. The learned Senior Counsel also submits that in the year 1993 also, the Circle Officer, Palajori had issued notices to the petitioners informing that during verification, plot no. 75 was found to be Government land, however; after submission of relevant documents by the petitioners relating to their right, title and interest over the said plot of land, the State authorities did not proceed further in the said matter. 6. The learned Senior Counsel for the petitioners further submits that the nature of the settlement was Basauri settlement done by the 'ex-landlord in the year 1945-46 and as such after coming into force' of Bihar Land Reforms Act, 1950 the said land did not vest in the Government and therefore, there is no question of any claim by the Government over the said plot. Moreover, after vesting of Zamindari, the State Government prepared Register-II on the basis of chart which were prepared by the Zamindar which shows the description, nature, area of the land and the name of the persons whose right, title, interest and possession over the lands are covered. These particulars were submitted by the Ex-landlord in Form 'K' under the Bihar Land Reforms Act, 1950. These particulars were submitted by the Ex-landlord in Form 'K' under the Bihar Land Reforms Act, 1950. It is further submitted that a separate list which related to Basauri lands was prepared by the concerned Circle Inspector on 1.4.1959 in which the name of the petitioners also find place. It is further submitted that since the settlements of the land were made in the year 1945-46 and the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 came into force on 1.4.1949, the case of the petitioners shall be governed by Santhal Pargana Rent Regulations, 1886. 7. The learned Senior Counsel, in support of his argument has relied upon the following judgments:- (i) Sri mati Sugia Debi & Anr. VS. Chando Kapri & Ors. reported in 1959 B.L.J.R. 95; (ii) Sri Boddhiranth Mishra and 7 Ors. VS. The State of Bihar & 7 Ors. reported in 1969 PLJR 373 ; and (iii) Nirbhay Kr. Shahabadi & Anr. VS. State of Jharkhand & Ors. reported in 2014(1) JCR 102 (Jhr.). 8. The learned counsel appearing on behalf of the Respondent-State submits that the names of patta holders, Banshi Ram Marwari, Rakhal Kapri, Bhola Nath Dutla are not recorded either in the revenue papers nor any rent is taken from them. So far as the name of Jasoda Bala Dhasi is concerned, her name has been illegally recorded without fixation of rent. The mutation of Yusuf Ali Ansari and Radhe Shayam Sah are also illegal. Moreover, the land is recorded as Parti Kadim and as such no mutation proceeding can be launched for that land. It is further submitted that after vesting of Zamindari, on the basis of return of Zamindar, the Register-II was prepared and since in the return of the Zamindar, the names of patta holders were not there, their names were not entered in the Register-II. 9. Heard the learned counsel for the parties and pursued the materials available on record. It appears that the Deputy Commissioner, while passing the impugned judgment/order, primarily relied upon the orders passed by the' Patna High Court. in M.J.C. No. 313 of 1959 as well as the order passed by the Deputy Commissioner, Dumka in Rev. Misc. Appeal No. 36 of 1963-64. However, both these cases were related to the claim of one Nityanand Prasad who had no concern with the right, title and interest over the land of the petitioners. in M.J.C. No. 313 of 1959 as well as the order passed by the Deputy Commissioner, Dumka in Rev. Misc. Appeal No. 36 of 1963-64. However, both these cases were related to the claim of one Nityanand Prasad who had no concern with the right, title and interest over the land of the petitioners. Even if it is assumed that Nityanand Prasad had relinquished his right before the Deputy Commissioner during the proceeding of Rev. Misc. Appeal No. 36 of 1963-64 upon a portion of plot no.75 on which he was in possession, the said relinquishment cannot be made applicable to the petitioners as they were not party to the said proceeding. Moreover, at that time, the documents pertaining to the right/title of the petitioners upon the said land was not there. From the facts of the case, it transpires that plot no. 75 is a big chunk of land and in some part of plot no. 75, the petitioners have been in possession since long by virtue of registered Basauri Settlement. Moreover, the petitioners were also not party in M.J.C. No. 313/1959. Thus, giving up of claim with respect to plot no. 75 by one Nityanand Prasad before the Patna High Court in M.J.C. No. 313 of 1959 as also in the proceeding of Rev. Misc. Appeal No. 36/1963-64 before the Deputy Commissioner, Dumka is not binding upon the petitioners. 10. So far as the argument of the respondent-State that in the return filed by the Zamindar, the names of the predecessor in interest of the petitioners were not there, the judgment relied upon the petitioners is required to be considered. 11. In the case of Sri Boddhinath Mishra (supra) a Division Bench of this court in para 25 held as under- "25.........Therefore, the legislature has taken special care in laying down that after vesting of the estates, the outgoing intermediaries will acquire the status of a taiyat with occupancy rights within the meaning of the Bihar Tenancy Act and not of an occupancy raiyat within the meaning of a Santhal parganas Settlement Regulation 3 of 1872 in respect of the land in his khas cultivation even though the land b, situated in the district of Santhal Parganas. Sec. 53 contemplates the acquisition of the holding or a portion of the holding of a raiyat within the meaning of the Act. Sec. 53 contemplates the acquisition of the holding or a portion of the holding of a raiyat within the meaning of the Act. The petitioners not being raiyats under the Santhal Parganas Tenancy Act, 1949" their lands cannot be acquired under the provisions of Sec. 53 of the Act. In that view of the matter also the acquisition proceeding (Annexure-E) so far the lands of the petitioners are concerned is invalid, and illegal, and, as such, it must be quashed." In the case of Sugia Debi vs. Chando Kapri reported in 1959 BLJR 95 in para 3 it is held as under:- "3. We are unable to accept the argument of learned counsel for the appellants as correct. It is the admitted position in this case that the plaintiff had taken settlement of the dispute land from the landlords on the 28th May, 1949. That is a crucial date, because the Amending Act, namely (Bihar Act 14 of 1949) came into force on the 1st Nov. 1949 and so it is obvious that the plaintiffs had taken settlement of the disputed land before the promulgation of the' Amending Act. In other words, the plaintiffs had acquired a vested right before the Amending Act came into force, and it is a well established principle that we cannot give such retrospective construction to an amending Act as to affect past transactions, and so as to affect vested rights which had sprung up before the Amending Act came into force. The law on the subject has been recently expounded by this Bench in Lakhmir Singh vs. Commissioner of Income tax where it was pointed out that the presumption against retrospective operation of a statute as regards vested rights applies not only to substantive rights but applies equally to remedial rights, like right of action, including rights of appeal." A similar view has also been taken by- the Judicial Committee in the case of Delhi Cloth and General Mills Company VS. Income Tax Commissioner, Delhi, where the law is stated as follows:- "…. While provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively, in the absence of express enactment or necessary intendment. While provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively, in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect. In view of these well established principles we are of opinion that the present case is governed by the old law as it stood before the Amending Act, namely Bihar Act 14 of 1949, and it follows, therefore, that the Deputy Commissioner had no jurisdiction u/s 53(6) of Bihar Act 14 of 1949 to order restoration of the land to the defendants. We accordingly hold that there is no substance in this appeal and dismiss this appeal. There is be no order as to costs." 12. In the case of Nirbhay Kr. Shahabadi (supra) in Para 21, this court has held as under- "21. As per the Final Report on the Revision Survey and Settlement Operations in the District of Santhal Parganas, 1922-35 by J.F. Gantzer, a Basauri tenancies may be created in two ways:- (a) By settlement of waste land under Clause 3 of the record of rights and duties, and. (b) By acquisition under the provisions of Section 25-A of Regulation-II of 1886. According to custom and practice all Basauri holdings are transferable and no distinction is ordinarily made in the incidents of such holding whether obtained by settlement under Clause-3 of the record of right or by acquisition under Section 25-A of Regulation-II. " 13. (b) By acquisition under the provisions of Section 25-A of Regulation-II of 1886. According to custom and practice all Basauri holdings are transferable and no distinction is ordinarily made in the incidents of such holding whether obtained by settlement under Clause-3 of the record of right or by acquisition under Section 25-A of Regulation-II. " 13. From the above judicial pronouncements it is clear that if any land is acquired by the landlords under Section 25-A of Regulation-II of 1886 and even after vesting, they are continuing in possession of the same, they are to be treated as raiyats under the Bihar Tenancy Act, 1885 and the landlords.have right to make settlement of the said land to any of his raiyats for homestead purpose for which no permission of Deputy Commissioner was required u/s 20 of the S.P.T. Act, 1949 since this provision shall have prospective operation. Thus, the argument on behalf of the State-respondents that in the return filed by the Zamindar, the name of the petitioners are not there, is not sustainable. Moreover, The D.C. Deoghar while passing the impugned order dt. 11.3.2000 did not consider these aspects of the matter at all and the petitioners have been directed summarily to vacate the said land. As it transpires from the facts of the present case that the petitioners and their predecessors in interest have been in possession of the land in question, since• 1945-46, the order dispossessing the petitioners from the said land in course of an encroachment drive cannot be legally sustained. The Patna High Court in M.J.C. No. 313 of 1959, as discussed herein above, has held that the settlement made in favour of Nityanand Prasad cannot be said to be nullity without initiating proceeding u/s 4(h) of the Bihar Land Reforms Act, 1950. 14. In the present case also no proceeding u/s 4(h) of Bihar Land Reforms Act, 1950 has been initiated against the petitioners. This legal position has also not been taken into consideration by the D.C., Deoghar (respondent no. 2) while passing the impugned order dt. 11.3.2000. 15. In view of the aforesaid discussions, this writ petition is allowed. The order dated 11 th March, 2000 passed in Misc. Case No. 28 of 1998-99 (appears to have been wrongly typed as Misc. Case No. 28/1997-98) by the Deputy Commissioner, Deoghar is set aside. 2) while passing the impugned order dt. 11.3.2000. 15. In view of the aforesaid discussions, this writ petition is allowed. The order dated 11 th March, 2000 passed in Misc. Case No. 28 of 1998-99 (appears to have been wrongly typed as Misc. Case No. 28/1997-98) by the Deputy Commissioner, Deoghar is set aside. However, the Respondent-State is at liberty to take appropriate recourse against the petitioners as provided under law.