IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.896 of 2011 In (CIVIL WRIT JURISDICTION CASE 1116/2001) Naresh Paswan & Anr Versus The State Of Bihar & Ors ---------------------------------- With Letters Patent Appeal No.339 of 2010 IN (CIVIL REVIEW 35/2009) 1. Naresh Paswan S/O Late Rama Shish Paswan R/O Vill Jatkauli,P.S. Lalganj, Distt-Vaishali 2. Suresh Paswan S/O Late Rama Shish Paswan R/O Vill Jatkauli, P.S. Lalganj, Distt-Vaishali Versus 1. The State Of Bihar 2. The Collector Vaishali, Distt-Vaishali 3. The Anchal Adhikari Vaishali, Distt-Vaishali 4. Prabha Devi W/O Laldev Singh R/O Vill Jatakauli, P.S. Lalganj, Distt- Vaishali ---------------------------------- 5 24-10-2011 Heard the parties and perused the order under appeal whereby the writ court has allowed the writ petition and quashed the orders dated 5-3-1992 and 21-7-1997, the two orders passed in favour of appellants who claimed to be tenants over revisional survey plot no. 2620, Khata no. 726 in village Jatkauli, PS Lalganj District Vaishali. The writ court has held, on the basis of materials on record, that the learned Anchal Adhikari did not follow the mandatory provisions of Rule 5 (1) 2 of the relevant Rules. The local enquiry was not by an officer not below the rank of Circle Inspector or Welfare Inspector. On behalf of appellants reliance was placed upon order contained in annexure-2 to the writ petition to show that there was a reference to report by Halka Karmchari and Circle Inspector. On perusal of annexure-2, we find that the order only refers to a proposal by the Halka Karmchari and Circle Inspector but there is no material that any local enquiry was conducted by any officer not below the rank of Circle Inspector or Welfare Inspector. In fact annexure-3 to which our attention was drawn by learned counsel for the writ petitioner/ respondent herein shows that the local enquiry was only by the Circle Amin and that was accepted by the Circle Officer. In any case, to contest the finding of the writ court no document has been brought on record to show any local enquiry by an officer not below the rank of Circle Inspector or Welfare Inspector. The writ court has further held that the 3 mandatory notice in form F was also not issued to the land holder- the writ petitioner. In view of aforesaid findings, we are of the view that the writ court has rightly quashed the orders passed in favour of the appellants. The only other material issue was whether to remit the matter back to the authorities for adjudication in accordance with law or not. On that issue the writ court has considered the order of the Collector and on that basis it has been held that actual dwelling unit of the appellants is on plot no. 2621 and only the small portion of homestead is allegedly extending on plot no. 2620, the disputed plot. The writ court has held that the construction on plot no. 2620 is an encroachment. On that basis the writ court has felt that there is no necessity of remitting the matter back to the appropriate authority. In our considered view, once the dispute has been raised, it should come to a logical conclusion under lawful orders of the authorities under the Bihar Privileged Persons Homestead Tenancy Act, 1947 and 4 the Rules made therein. It would not be appropriate for this court to give a finding in respect of encroachment having been made on plot no. 2620. The relevant issued raised on behalf of the writ petitioner that appellants already have a homestead Parcha and homestead on plot no. 2621 shall also be considered by the authorities under the Act in accordance with law. The appeal is disposed of without interfering with order of the writ court on merits but that order is modified to the extent that the matter is remitted back to the Collector under the Act for a fresh decision in accordance with law after required noticed to the land holder. Since LPA no. 339 of 2010 arises out of the order whereby the writ court refused to review the original order, the said LPA shall also be governed by this judgement under appeal. BKS/- (Shiva Kirti Singh, J.) (Shivaji Pandey, J.)