Patna High Court
Case Details
Patna High Court CWJC No.15352 of 2005 (5) dt.08-08-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15352 of 2005 ====================================================== 1. Bhagirath Singh 2. Anil Kumar Singh 3. Bipin Kumar Singh Nos. 1 to 3 are sons of Late Hari Kishun Singh 4. Bablu Kumar Singh, son of Late Harkshit Singh All are residents of village & P.O.-Dhadhaur, P.S.-Sikandra, District- Jamui. .... .... Petitioner/s Versus 1. The State Of Bihar 2. The District Collector, Jamui 3. The Circle Officer, Sikandra, District-Jamui 4. Anil Yadav, son of Chando Yadav 5. Chando Yadav, son of Late Rohan Yadav Respondent Nos. 4 and 5 are residents of village and P.O.-Dhadhaur, P.S.-Sikandra, District-Jamui. .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.15334 of 2005 ====================================================== 1. Bhagirath Singh 2. Anil Kumar Singh 3. Bipin Kumar Singh Nos. 1 to 3 are sons of Late Hari Kishun Singh 4. Bablu Kumar Singh, son of Late Harkshit Singh All are residents of village & P.O.-Dhadhaur, P.S.-Sikandra, District- Jamui. .... .... Petitioner/s Versus 1. The State Of Bihar 2. The District Collector, Jamui 3. The Circle Officer, Sikandra, District-Jamui 4. Sunil Yadav, son of Chando Yadav 5. Chando Yadav, son of Late Rohan Yadav Respondent Nos. 4 and 5 are residents of village and P.O.-Dhadhaur, P.S.-Sikandra, District-Jamui.
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : (In CWJC No.15352 of 2005) For the Petitioner/s : Mr. Ras Bihari Thakur, Advocate For the Respondent Nos. 4 & 5 : Mr. Ravi Kumar, Advocate (In CWJC No.15334 of 2005) Patna High Court CWJC No.15352 of 2005 (5) dt.08-08-2013 2 For the Petitioner/s : Mr. Ras Bihari Thakur, Advocate For the Respondent Nos. 4 & 5 : Mr. Ravi Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 5 08-08-2013 Heard learned counsel appearing on behalf of the petitioners and learned counsel appearing on behalf of private respondent Nos. 4 and 5 in both the matters. However, none is appearing on behalf of the respondent State of Bihar and its functionaries.
Decision
2. In both the writ petitions, issues of facts and issues of law are common and identical, therefore, with the consent of the parties, both the matters have been heard together and are being disposed of by this common order. 3. In both the writ petitions, petitioners are same and common persons but the claimants are different, namely, Sunil Yadav and Anil Yadav, who are full brothers. Their father, namely, Chando Yadav, is not a necessary party in the present proceedings, yet he has been impleaded as respondent No. 5 in both the writ petitions. 4. Aforesaid Sunil Yadav, respondent No. 4 of C.W.J.C. No. 15334 of 2005, filed a petition under Section 8 of the Bihar Privilege Persons Homestead Tenancy Act, 1947 (in short Act) praying therein to grant him Basgit Parcha with respect Patna High Court CWJC No.15352 of 2005 (5) dt.08-08-2013 3 to 4 decimals of land of Khata No. 196 appertaining to Khesra No. 1823 situate at village-Itasagar. On the basis of the aforesaid petition filed by the aforesaid Sunil Yadav, Homestead Parcha Case No. 1 of 2003-04 was initiated by the respondent Circle Officer, Sikandra, District-Jamui. 5. Similarly, Anil Yadav, respondent No. 4 of C.W.J.C. No. 15352 of 2005, filed an application under Section 8 of the Act before the respondent Circle Officer, Sikandra, for grant of Homestead Parcha with respect to 4 decimals of land of aforesaid Khesra No. 1823 of the same village, which gave rise to Homestead Parcha Case No. 3 of 2003-04. 6. The entire ordersheet of the Homestead Parcha Case No. 1 of 2003-04 has been brought on record as Annexure-2 to C.W.J.C. No. 15334 of 2005. Similarly, the entire ordersheet of Homestead Parcha Case No. 3 of 2003-04 has been brought on record as Annexure-6 to C.W.J.C. No. 15352 of 2005. 7. From perusal of the entire ordersheets of the aforesaid two Basgit Parcha Cases, it is apparent that applications filed by claimant(respondent no.4) in both the cases for grant of Basgit Parcha were not filed in the prescribed form as provided under the provisions of Bihar Privilege Persons Homestead Tenancy Rules, 1948 (hereinafter referred to as Rules in short). Patna High Court CWJC No.15352 of 2005 (5) dt.08-08-2013 4 8. For deciding the claim of Basgit Parcha of the claimant, the procedures have been prescribed under Rule 5 of the Rules. But apparently the procedures prescribed therein have not been followed by the respondent Circle Officer, Sikandra, before passing the impugned final order dated 19.8.2003 allowing the claim of respondent No. 4. An enquiry has not been conducted by the Collector under the Act himself or by the Circle Inspector or Welfare Inspector. But it appears that on the basis of enquiry conducted by the Revenue Karmachari, the matter proceeded and impugned final order was passed. 9. This Court further finds that the name of landlord has not been disclosed by respondent No. 4. No notice appears to have been issued to the landlord of the lands under dispute. Only a general notice was issued which cannot be said to be a compliance of Rule 5 of the Rules. 10. The petitioners, claiming to be landlords with respect to the lands under dispute, challenged the aforesaid two final orders before the respondent District Collector, Jamui, under Section 21 of the Act giving rise to Basgit Parcha Case No. 4 of 2004-05 and Basgit Parcha Case No. 5 of 2004-05. But the respondent District Collector, Jamui, without application of independent judicial mind to the facts of the case and without Patna High Court CWJC No.15352 of 2005 (5) dt.08-08-2013 5 considering about the non-compliance of the procedures prescribed under the Act and Rules, has rejected the aforesaid two petitions filed on behalf of the petitioners by his impugned order dated 30.4.2005 (Annexure-3 in C.W.J.C. No. 15334 of 2005 and Annexure-9 in C.W.J.C. No. 15352 of 2005). 11. After having heard the parties and on consideration of the materials available on records, this Court is of the opinion that both the matters require reconsideration and fresh decision by the original authority itself at the first instance strictly in accordance with law, after giving opportunity of hearing to all concerned including the petitioners. 12. For the reasons recorded above, the impugned order dated 19.8.2003 (Annexure-2) passed in Homestead Parcha Case No. 1 of 2003-04 by the respondent Circle Officer, Sikandra as also the impugned order dated 30.4.2005 (Annexure-3) passed in Homestead Parcha Case No. 4 of 2004-05 by the respondent District Collector, Jamui, both relating to C.W.J.C. No. 15334 of 2005, as also the impugned order dated 19.8.2003 (Annexure-6) passed in Homestead Parcha Case No. 3 of 2003-04 by the respondent Circle Officer, Sikandra, as also the impugned order dated 30.4.2005 (Annexure-9) passed in Homestead Parcha Case No. 5 of 2004-05 by the respondent District Collector, Jamui, both Patna High Court CWJC No.15352 of 2005 (5) dt.08-08-2013 6 relating to C.W.J.C. No. 15352 of 2005 are set aside and both the matters are remitted back to the respondent Circle Officer, Sikandra, with a direction to proceed in the aforesaid two Basgit Parcha Cases filed by respondent No. 4 of both the cases in accordance with law after giving opportunity of hearing to all concerned including the petitioners. 13. In order to expedite the matter, the petitioners as also respondent No. 4 of both the cases are hereby directed to appear before the respondent Circle Officer, Sikandra, with a certified copy of the present order within a period of eight weeks from today, whereafter, the respondent Circle Officer, Sikandra, shall proceed in the matter further and shall dispose of the claim of respondent No. 4 of both the cases by following the procedures prescribed under the Act and Rules, as also by reasoned and speaking orders. 14. It is clarified that in view of the present remand order, if either the petitioners or respondent No. 4 fail to appear before the respondent Circle Officer, Sikandra, within the time prescribed and fail to produce their materials/evidence in support of their respective claims, and if any final order is passed by the respondent Circle Officer, Sikandra, afresh, then they shall not be permitted to challenge the aforesaid fresh order on the ground of Patna High Court CWJC No.15352 of 2005 (5) dt.08-08-2013 7 violation of principles of natural justice. 15. In the result, both the writ petitions stand allowed to the extent indicated above. However, there shall be no order as to costs. (Birendra Prasad Verma, J) sudip/-