Deoraj Thakur vs The State of Bihar and Others

S.B. Sinha, J.—This application is directed against the order dated 27.11.1976 and 11.1.1977 as also the parcha granted in favour of the respondent no. 3 by respondent no. 2 purported to be in exercise of power conferred upon him under the Bihar Privileged Persons Homestead Tenancy Act, 1947 (hereinafter to be referred to as ''the said Act'') as contained in Annexures-4 and 4/A respectively to the writ application. Shortly put the fact of the matter is as follows.

The land in question being plot no. 3480 appertaining to Khata No. 489 of village Hasapur measuring 3 decimals was recorded in the name of Sri Saral Bania in Survey Settlement records of right.

Respondent no. 3 filed an application for grant of Basgit Parcha in respect of the said land. The said application was put up before respondent no. 2 who is Collector under the said Act on 27.11.1976 along with the recommendations of the Halka Karmachari through the Circle Inspector in Form No. XXVI. The Anchal Amin had also made recommendations in favour of the applicants.

The raiyat concerned allegedly was given notice. On the next date fixed i.e. 11.1.1977 the respondent no. 2 allowed the said application purported to be on the ground that in terms of section 16of the said Act any land can be settled in favour of a privileged person. He, therefore, considered the aforementioned report of the Halka Karmachari who had not only recommended for settlement but also recommended for fixation of fair rent. On the basis of the said report of the Halka Karmachari, the impugned order have been passed.

Mr. Manan Kumar Mishra, Learned Counsel for the petitioner inter alia submitted that respondent no. 3 was merely a tresspasser.

''A tresspasser or squatter cannot become a privileged tenant''. See Bishwanath Singh vs. The State of Bihar and others reported in A. I. R., 1981 Patna, 145.

Respondent No. 2 in his impugned order did not record any finding that the respondent no. 3 was a privileged tenant.

Respondent no. 2 did not also come to any finding that there exists any relationship of land-lord and the tenant by and between respondent no. 3 and any person.

Mr. S.N. Roy, learned Standing Counsel-III for the State and Mr. K.N. Tiwary, Learned Counsel appearing on behalf of respondent no. 3, however, submitted that, although, the parcha was granted in the year 1977, the application for mutation was filed by the petitioner in the year 1986.

The Learned Counsel, therefore, submitted that in this view of the matter, this Court should not interfere with the impugned order.

It was further submitted that an order u/s 145of the Code of Criminal Procedure was also passed as against the petitioner. The Learned Counsel has further drawn my attention to the statement made in Paragraph-12 of the counter-affidavit which reads as follows :

That with regard to the statement made in paragraph nos. 12 and 13 to the writ petition, it is stated that the respondent no. 3 is a issueless divorced lady. Her husband has also performed his second marriage and has got sons from his second wife. Her husband had already executed a registered deed of Gift with regard to his all immovable properly vide deed of Gift no. 4594 dated 20.6.1968. Nothing has been given to the respondent no. 3 by her husband. Allegation contrary to this is completely false.

It may be that the condition of the respondent no. 3 is pitiable. However, pitiable condition of a lady can not be a ground for grant of a basgit parcha under the provision of the said Act.

By reason of such a grant, a valuable right of a land-lord is lost. Not only the conditions precedent prescribed for grant of such basgit parcha have to be fulfilled but also the procedures laid down therein under the rules and in particular Rule 5 of the Bihar Privileged Tenancy Rules are required to be followed.

A bare perusal of the impugned orders dated 27.11.1976 and 11.1.1977 indicate that the respondent no. 3 prior to filing of the application before the Collector must have approached the Halka Karmachari, as otherwise, there can not be any earthly reason as to why the petition for grant of basgit parcha was accompanied by the recommendation of the Halka Karmachari.

It is, thus, obvious that no recommendation were called for by the Collector under the said Act. Further, in terms of Rule 5 of the Rule, Collector under the said Act is required to conduct the enquiry himself or to get the same enquired by an Officer not below the rank of Circle Inspector.

There is also nothing on the record to show that the land-lord was at any point of time was served with any notice.

From the perusal of the impugned order (A-4), it is also evident that no finding has been arrived at by the respondent no. 2 that the respondent no. 3 is a privileged person far less a privileged tenant. It is also evident from the impugned order that recommendations have been made for fixation of fair rent which was not the stage therefor as the question of fixation of fair rent arises only after grant of basgit parcha.

For the aforementioned reasons, the application is allowed and the impugned orders dated 27.11.1976 and 11.1.1977 as also parcha granted in favour of respondent no. 3 by respondent no. 2 as contained in Annexure-4 and 4/A respectively to the writ application are set aside. In this facts and circumstances of the case, there will be no order as to costs.