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2018 DIGILAW 429 (JHR)

Nita Verma v. State of Jharkhand

2018-02-20

ANUBHA RAWAT CHOUDHARY

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JUDGMENT : Heard Mr. B.K. Dubey, counsel appearing on behalf of the petitioner. 2. Heard Mr. Vijay Kr. Sharma, counsel appears on behalf of the respondent no.5. 3. No body appears on behalf of the respondent-State. 4. This writ petition has been filed by the writ petitioner for quashing the parcha issued in favour of the respondent no.5 as contained in Annexure-6 to the writ petition pursuant to order signed on 02.04.2004 (although the date of the order a per left column of the order sheet has been mention as 10.12.2003/2.4.2003) (Annexure-5) passed by the Circle Officer, Chatra which in turn has been passed on the basis of report of Halka karmchari pursuant to petition filed by the respondent no.5 as contained in Annexure-4 to the writ petition dated 26.8.2003. 5. Counsel for the petitioner on facts submits as follows:- (a) An application dated 26.08.2003 as contained in Annexure-4 was filed by the respondent no.5 before the Circle Officer, Chatra. He submits that although the provision of law is not mentioned in the said application but the same is an application under Section 5 of Bihar Privilege Persons Homestead Tenancy Act, 1947. He submits that from the perusal of the application it appears that the basic ingredient of Section 2 (i) and Section 2 (j) read with Section 5 of the said Act is not satisfied. (b) The counsel for the petitioner submits that application contained in Annexure-4 dated 26.08.2003 was processed by the Circle Officer, Chatra and an enquiry was conducted by the Halka karmchari prior to issuance of notice. It is submitted that the Halka karmchari has no jurisdiction to conduct an enquiry under the provisions of the aforesaid Act. He submits that no notice under ‘Form-F’ as prescribed under the rules have been issued to the petitioner. (c) He further submits that the petitioner had appeared pursuant to the notice issued vide order dated 24.09.2003 and filed their objection but by the impugned order signed on 02.04.2004, the relief was granted to the respondent no.5 on the basis of the report of Halka karmchari whose enquiry is wholly without jurisdiction. (d) He further submits that while passing the impugned order the objection filed by the petitioner has not been taken into consideration. (d) He further submits that while passing the impugned order the objection filed by the petitioner has not been taken into consideration. (e) Counsel for the petitioner also submits that the basic ingredients for issuance of “parcha” including the fact as to whether the applicant was holding land less than one acre or not has also not been considered while passing the impugned order and accordingly no finding has been recorded in this regard in order signed on 02.04.2004 passed by the respondent no.4 which is the basis for issuance of “parcha” as contained in Annexure-6 to the writ petition. (f) Counsel for the petitioner while referring to Annexure-6 of the writ petition submits that in column no. 10 it has been mentioned that the respondent no. 5 is land less although there is no such finding recorded in the order signed on 02.04.2004 on the basis of which Annexure-6 has been finally issued. (g) Counsel for the petitioners submits that Bihar Privileged Persons Homestead Tenancy Rules, 1948 particularly Rule 5 of the rules framed under the aforesaid Act was totally ignored while passing the impugned order and accordingly the impugned order signed on 02.04.2004 and “parcha” as contained in Annexure-5 and 6 respectively are fit to be set-aside. (h) Counsel for the petitioner has also relied upon the judgment passed by this court in Judgment reported in 1990 PLJR 35 (Patna), 2006 (1) PLJR 614 (Patna), 2006 (2) PLJR 443 (Patna) and 1978 BBCJ 623 (Patna) and has submitted that the impugned order and “parcha” has been passed in total disregard to the provisions of the aforesaid Act and the rules and in total disregards to the law laid down in the aforesaid Judgments, accordingly the same are fit to be set-aside. 6. Counsel for the respondent on the other side submits that from the perusal of the order dated 24.09.2003, it appears that the Halka karmchari had only scrutinized the application. He submits that after issuance of notice on 24.09.2003 and after appearance of the parties on 09.10.2003 the local inspection was done by the Circle Officer, Chatra himself which is apparent from order dated 09.10.2003. Therefore, the allegation in connection with the inspection as made by the petitioner is totally incorrect. He submits that after issuance of notice on 24.09.2003 and after appearance of the parties on 09.10.2003 the local inspection was done by the Circle Officer, Chatra himself which is apparent from order dated 09.10.2003. Therefore, the allegation in connection with the inspection as made by the petitioner is totally incorrect. Counsel for the respondent submits that although the enquiry conducted by Halka karmchari was beyond the provisions of the law but subsequently the enquiry was duly conducted as per provisions of law by the Circle Officer, himself which is apparent from the order dated 09.10.2003. Counsel for the respondent further submits that in the final ‘Form–G’ which was issued pursuant to impugned order dated 02.04.2003, it has been recorded that the applicant is “land less” and accordingly the impugned order and parcha has been rightly passed which requires no interference of this court. He also submits that the petitioner has alternative remedy of revision under the provisions of Section 21 of the aforesaid Act and accordingly the writ petition should be dismissed on account of availability of efficacious alternative remedy. The counsel relies upon the Judgment reported in 2004 (3) PLJR 124 (Patna) and submits that if this court finds that any illegality has been committed, the proper course would be to remit the matter for fresh consideration. 7. After hearing counsel for the parties and considering the facts and circumstances of this case, this court is inclined to entertain the writ petition and set-aside the order signed on 02.04.2004 passed by learned Circle Officer, Chatra (Annexure-5) and also the consequent “parcha” in ‘Form-G’ (Annexure-6) issued in favour of the respondent no.5 on account of following facts and reasons:- (a) Section 2 (i) of Bihar Privilege Persons Homestead Tenancy Act, 1947 defines ‘privileged person’ to mean a Person- (1) who is not a proprietor, tenure holder, under tenure holder or a Mahajan, and (2) Who, besides his homestead, holds no other land or holds any such land not exceeding one acre. It is such a privileged person, as defined above, who could be “privileged tenant” as defined under section 2(j) of the Act to mean as follows: “Privileged tenant” means privileged person who holds homestead under another person and is, or but for a special contract, would be, liable to pay rent for such homestead to such person.” Thus in order to have the right to be a privileged tenant the person has to first show that the person is a privileged person and for that he should not be holding land more than one acre. (b) Rule 5 of the Bihar Privilege Persons Homestead Tenancy Rules, 1948 is quoted here in below for ready reference :- “5(1) The collector shall either himself make local inquiry or have such inquiry made by any responsible officer not below the rank of a Circle Inspector or welfare Inspector and satisfy himself as to the correctness or otherwise of the contents of such applications. (2) The enquiring officer shall issue a notice in Form F to all the interested parties intimating the date on which the inquiry shall be made and directing parties to produce all the evidence in their possession in support of or against the application. (3) The enquiring officer shall make a record of the evidence produced before him and, if he is not the Collector, submit his report to the Collector. (4) The collector shall after hearing the parties on all points arising out of the application pass such order as to him seems to be just and proper. (5) The Collector shall prepare a record of homestead held by privileged tenant in Form G. The main record shall be maintained in the office of the Collector and a copy of the record bearing the signature and seal of the Collector shall be made over to the landlord and the privileged tenant.” (c) Upon interpretation of the aforesaid provisions Hon’ble Patna High court in Judgment reported in 1978 BBCJ 623 (Patna) has held as follows :- “From a reference to rule 5 it is manifest that the Collector under the Act shall either himself make local inquiry or have such inquiry made by any responsible officer not below the rank of a Circle Inspector or Welfare Inspector and satisfy himself as to correctness or otherwise of the contents of the application. The enquiring officer shall issue notice to the interested parties in Form F and record evidence produced before him and submit his report to the Collector. The Collector after hearing the parties on all the points arising out of the application has to pass order which may appear to him to be just and proper.” “The Act is aimed at securing a homestead for a privileged tenant and the order passed by the Collector under the Act has been made final. This is with a view to protect the privileged tenants from the harassment of fighting litigations in courts of appeal or revision. In view of the stringent provisions of the Act which make the order of the Collector final, it becomes obligatory on the part of the of the Collector to adhere to the provisions of the law and strictly comply with the rules as to the mode of notice, enquiry including local enquiry etc. and record proper findings in such matters. The provisions contained in the Rules as to the method of notice and enquiry are meant as safeguards against arbitrary exercise of the wide powers conferred on the Collector under the Act.” (d) The other judgments relied upon by the petitioner are on the point that the rules are to be strictly complied. (e) The Judgment relied upon by the respondent reported in 2004 (3) PLJR 124 (Patna) is for the purpose that if this court finds that any illegality has been committed, the proper course would be to remit the matter for fresh consideration. (f) From the perusal of the impugned order signed on 02.04.2004, it appears that the findings in the impugned order has been passed on the basis of report submitted by Halka karmchari as mentioned in the order itself although the enquiry conducted by the Circle Officer, Chatra has also been mentioned. (g) It is admitted fact that Halka karmchari has no jurisdiction to conduct the enquiry as per the provision of the Act and the rules. (g) It is admitted fact that Halka karmchari has no jurisdiction to conduct the enquiry as per the provision of the Act and the rules. (h) It appears that although some enquiry was conducted by the Circle Officer himself as per order dated 09.03.2003 and also mentioned in order dated 10.12.2003 but the impugned order is not passed on the basis of the inspection conducted by the Circle Officer, Chatra rather impugned order suggest that the same has been passed on the basis of enquiry conducted by the Halka karmchari who had no jurisdiction to conduct the enquiry under the provisions of the Act of the rules. (i) This court also finds that there is no recording in the impugned order regarding the basic eligibility of the respondent no.5 including as to any land being held by her. (j) However from the perusal of Annexure-6, it has been recorded that the applicant is “land less”. Annexure-6 is issued on the basis of order signed on 02.04.2004 and in the order signed on 02.04.2004 there is no finding that the applicant is “land less” therefore, there is no basis for this entry which has been made in Annexure-6 to the writ petition. (k) From the perusal of the records, this court finds that the order signed on 02.04.2004 as well as the “parcha” issued as contained in Annexure-6 which is consequent of order signed on 02.04.2004 is perverse in as much as the same has been passed in total disregard to the mandatory provisions of the aforesaid Act in the rules. (l) So far as the alternative remedy is concerned this court finds that the impugned order signed on 02.04.2004 is based on the report of Halka karmchari who apparently is not authority under the Act to conduct the enquiry. Therefore, this court is inclined entertain the writ petition. 8. Under the facts and circumstances of this case, the impugned order signed on 02.04.2004 and the “parcha” issued as contained in Annexure-6 to the writ petition are hereby set-aside and the matter is remitted back to the Circle Officer, Chatra for passing a fresh order in accordance with law after considering the various requirements of the Act and the rules and after enquiry as per law on the point of entitlement of the respondent no.5 for the relief under the provision of Bihar Privilege Person Homestead Tenancy Act, 1947. 9. 9. The Circle Officer, Chatra, shall pass fresh order within a period of three months from receipt of copy of this order after giving an opportunity of hearing to the parties. It may be open to the parties to bring on record further materials/evidences for consideration of the Circle officer, Chatra.