IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1116 of 2001 PRABHA DEVI Versus THE STATE OF BIHAR & ORS ----------- 04- 10.11.2008 Heard Mr. Ratna Deep Prasad for the petitioner, and Mr. Anwar Karim, learned JC to Standing Counsel No.V. None appears on behalf of respondent nos. 4 and 5 although they have entered appearance through counsel and filed duly executed Vakalatnama. 2. This writ petition is directed against the order dated 21.7.97 (Annexure 4), passed in Misc. Case No.96/97 (Prabha Devi vs.State of Bihar & Ors.) by respondent no.2 (Collector, Vaishali), whereby he has upheld the order dated 5.3.92 (Annexure 2), passed by the learned Anchal Adhikari, Vaishali, in Case No. 145 to 164 of 1991-92. It arises out of the proceedings under the Bihar Privileged Persons Homestead Tenancy Act 1947 (hereinafter referred to as `the Act’). 3. We have perused the materials on record and considered the submissions of learned counsel for the petitioner and the learned government counsel. 20 persons had filed applications for issuance of Baskit Parcha in their favour. The present proceeding initiated at the instance of respondent no. 4 (Naresh Paswan), and respondent no.5 (Suresh Paswan), is confined to 10 decimals of land of Revisional Survey Plot No.2620, appertaining to Revisional Survey Khata no.726, situate at Village Jatkauli, PS Lalganj, District Vaishali. The Anchal Adhikari allowed the claim of respondent nos. 4 and 5, by his order dated 5.3.92 (Annexure 2), and directed for issuance of Baskit - 2 - Parcha in their favour on the basis of the report of the Anchal Amin. Aggrieved by this order, the petitioner preferred appeal under the Act which has been rejected by the impugned order. The learned Collector has held that the house of respondent nos. 4 and 5 is situate on plot no.2621 and a small portion of the same is situate on plot no.2620. It appears on a perusal of the records that the learned Anchal Adhikari did not follow the mandatory provisions of rule 5(1) of the Bihar Privileged Persons Homestead Tenancy Rules 1948. Rule 5 is reproduced hereinbelow for the facility of quick reference :- “5. (1) The Collector shall either himself make local inquiry or have such inquire 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. 4. It has been held in the case of Rajeshwar Prasad vs. State of Bihar reported in 1990 (1) PLJR 35 that rule-5 is a mandatory provision of law and local inquiry by a person below the rank of Circle Inspector or Welfare Inspector is impermissible. It further appears that the notice in prescribed form no. `F’ was also not issued to the present petitioner. The order of the learned Anchal Adhikari itself states that a general notice by the beat of drum was followed. It is thus manifest that the mandatory prescribed procedure was not followed. Learned counsel for the petitioner has rightly relied on the judgment of the Supreme Court reported in AIR 1987 SC 2386 (Ranjit Thakur vs. Union of India), wherein the importance of observance of the procedural safeguards has been emphasized. - 3 - 5. The learned Collector has found that the house in question is situate on plot no.2621, and a small portion whereof is on plot no.2620. The obvious inference is that the construction on plot no.2620 is an encroachment. 6. In the result, this writ petition is allowed. The order dated 5.3.92 (Annexure 2), and the order dated 21.7.97 (Annexure 4) are hereby set aside. In view of the position that portion of the house on plot no.2620 is an encroachment, I do not feel the necessity to remit the matter back to the appropriate authority. ( S K Katriar ) mrl