Patna High Court
Case Details
Patna High Court CWJC No.4594 of 2002 (12) dt.31-07-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4594 of 2002 ====================================================== Shri 108 Thakur Radha Krishna Jee Installed at Mauza Khojpur, P.S.and Anchal-Babubarhi, District-Madhubani, its Sebait Shri Bishwambhar Jha, son of Late Upadhya Jha, Mauza Khojpur, P.S. and Anchal-Babubarhi, District-Madhubani. through .... .... Petitioner/s Versus 1. The State Of Bihar through Collector, Madhubani. 2. The Collector, Madhubani 3. Circle Officer, Babubarhi, District-Madhubani 4. Sagam Lal Kamat, son of Faudar Kamat 5. Agamlal Kamat, son of Faudar Kamat Residents of Mauza Khojpur, P.S. and Anchal-Babubarhi, Distt.- Madhubani.
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. A.B.Ojha, Sr. Advocate Mr. Bharat Bhushan, Advocate Mr. Nitesh Kumar, Advocate For the Respondent Nos. 1 to 3 : Mr. Binod Kumar, A.C. to S.C. 16 For the Respondent Nos. 4 & 5 : Mr. Ajay Kumar Thakur, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 12 31-07-2013 Heard learned counsel appearing on behalf of the petitioner, learned A.C. to S.C. 16 appearing on behalf of respondent Nos. 1 to 3 and learned counsel appearing on behalf of respondent Nos. 4 and 5. 2. The petitioner, being aggrieved, has filed the present petition under Article 226 of the Constitution of India assailing the validity and correctness of the order dated 31.8.1992 (Annexure-1) passed in Homestead Parcha Case No. 70 of 1992-93 by the respondent Circle Officer, Babubarhi, the consequential parcha issued in favour of respondent Nos. 4 and 5 vide Annexure-2, as Patna High Court CWJC No.4594 of 2002 (12) dt.31-07-2013 2 also the order dated 2.2.2002 (Annexure-3) passed in Homestead Parcha Case No. 133 of 2000-01 by the respondent District Collector, Madhubani, in exercise of his powers under Section 21 of the Bihar Privileged Persons Homestead Tenancy Act, 1947 (in short Act). 3. Learned senior counsel appearing on behalf of the petitioner has submitted that though the petitioner, who is a deity, became owner of the lands under dispute by virtue of a deed of exchange, but was not given opportunity of hearing by the respondent Anchal Adhikari, Babubarhi, before passing the final order and instead the original raiyats, namely, Mukti Nath Mishra and Udit Narayan Jha, who had lost interest with respect to the lands under dispute, were impleaded as parties and were heard. It is further contended that the respondent District Collector, Madhubani, while passing the impugned order dated 2.2.2002 (Annexure-3) rejecting the petition filed on behalf of the petitioner under Section 21 of the Act, has not gone into the merit of the claim raised on behalf of the petitioner, but primarily on the ground of limitation he has rejected the aforesaid petition. In support of the claim to be the owner of the lands under dispute, the petitioner has brought on record the revisional survey khatian at Annexure-16 to the supplementary affidavit filed on his behalf. 4. Learned counsel appearing on behalf of respondent Nos. 4 and 5 has stoutly opposed the prayer made in the present application on behalf of the petitioner. It is submitted that petitioner is a stranger to the lands under dispute, therefore, at its behest the present petition is not maintainable. According to him, in fact, Muktinath Mishra and Udit Narain Jha were the raiyats with respect to plot Nos. 669 and 673 for which Basgitparcha was Patna High Court CWJC No.4594 of 2002 (12) dt.31-07-2013 3 granted to respondent Nos. 4 and 5. It is further highlighted that original raiyats, namely, Muktinath Mishra and Udit Narain Jha have never challenged the issuance of Basgitparcha in favour of respondent Nos. 4 and 5, but the petitioner without having valid document of transfer with respect to the disputed plots filed a petition before the respondent District Collector, Madhubani, which was rightly rejected, and has been challenged in the present proceeding, which is not maintainable. 5. After having heard the parties and on consideration of the materials available on record, this Court is of the opinion that the matter requires reconsideration and fresh decision by the respondent District Collector, Madhubani, in terms of Section 21 of the Act. From perusal of the impugned order dated 2.2.2002 (Annexure-3), it is apparent that the issues of fact raised on behalf of the petitioner or on behalf of respondent Nos. 4 and 5 have not been properly gone into and have not been appropriately decided. This Court does not find any material to show that, in fact, whether the original raiyats viz. Muktinath Mishra and Udit Narain Jha were impleaded as party or not in the aforesaid petition filed on behalf of the petitioner before the respondent District Collector, Madhubani. In the considered opinion of this Court, for consideration of claim of the petitioner with respect to the lands under dispute, hearing of the aforesaid Muktinath Mishra and Udin Narain Jha is a must because petitioner claims to have acquired his right on the basis of deed of exchange from the aforesaid raiyats. In the present proceeding before this Court also, aforesaid Muktinath Mishra and Udit Narain Jha have not been impleaded as a party. Therefore, stand of the aforesaid raiyats are not known to this Court. Patna High Court CWJC No.4594 of 2002 (12) dt.31-07-2013 4 6. For the reasons recorded above, the impugned order dated 2.2.2002 (Annexure-3) passed in Homestead Parcha Case No. 133 of 2000-01 by the District Collector, Madhubani, is set aside and the matter is remitted back to the respondent District Collector, Madhubani, to decide the aforesaid case filed by the petitioner afresh after giving opportunity of hearing to all concerned including the aforesaid Muktinath Mishra and Udit Narain Jha. The issues raised on behalf of the parties shall be appropriately gone into and the petition filed on behalf of the
Decision
petitioner shall be disposed of by a reasoned and speaking order. 7. In order to expedite the matter, the petitioner and respondent Nos. 4 and 5 are hereby directed to appear before the respondent District Collector, Madhubani, with a certified copy of the present order within a period of six weeks from today, whereafter the respondent District Collector, Madhubani, shall proceed in the matter for a fresh decision and all endeavours shall be made to dispose of the matter expeditiously at an early date. 8. The writ petition stands disposed of with the observations and directions made above. (Birendra Prasad Verma, J) sudip/-