IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11507 of 2010 1. MADHURI SADAI S/O LATE NETI SADAI R/O VILL.- KASIYAM, P.S.- LAKHNOUR, DISTT.- MADHUBANI 2. NUNU SADAI S/O LATE NETI SADAI R/O VILL.- KASIYAM, P.S.- LAKHNOUR, DISTT.- MADHUBANI 3. SADARU SADAI S/O LATE NETI SADAI R/O VILL.- KASIYAM, P.S.- LAKHNOUR, DISTT.- MADHUBANI 4. PACHCHU SADAI S/O LATE BUDDHI SADAI R/O VILL.- KASIYAM, P.S.- LAKHNOUR, DISTT.- MADHUBANI 5. LAXMI SADAI S/O SRI PANCHCHU SADAI R/O VILL.- KASIYAM, P.S.- LAKHNOUR, DISTT.- MADHUBANI 6. RAM LAKHAN SADAI S/O SRI PACHCHU SADAI R/O VILL.- KASIYAM, P.S.- LAKHNOUR, DISTT.- MADHUBANI 7. HARKHU SADAI S/O LATE SOTI SADAI R/O VILL.- KASIYAM, P.S.- LAKHNOUR, DISTT.- MADHUBANI 8. SONAI SADAI S/O LATE MUKTI SADAI R/O VILL.- KASIYAM, P.S.- LAKHNOUR, DISTT.- MADHUBANI 9. SUBANSH SADAI S/O BACHCHAN SADAI R/O VILL.- KASIYAM, P.S.- LAKHNOUR, DISTT.- MADHUBANI 10. ACHAK SADAI S/O BACHCHAN SADAI R/O VILL.- KASIYAM, P.S.- LAKHNOUR, DISTT.- MADHUBANI 11. JANAK SADAI S/O BACHCHAN SADAI R/O VILL.- KASIYAM, P.S.- LAKHNOUR, DISTT.- MADHUBANI ---- PETITIONERS. Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR, MADHUBANI 3. THE ADDITIONAL COLLECTOR, MADHUBANI 4. THE SUB-DIVISIONAL OFFICER, JHANJHARPUR, DISTT.- MADHUBANI 5. THE DEPUTY COLLECTOR, LAND REFORMS, JHANJHARPUR, DISTT.- MADHUBANI 6. THE ANCHAL ADHIKARI, LAKHNAUR, P.S.- LAKHNOUR, DISTT.- MADHUBANI 7. MAHESH JHA S/O LATE BHAGESHWAR JHA R/O VILL.- KASIYAM, P.S.- LAKHNOUR, DISTT.- MADHUBANI 8. UGRESH JHA S/O LATE BHAGESHWAR JHA R/O VILL.- KASIYAM, P.S.- LAKHNOUR, DISTT.- MADHUBANI ---- RESPONDENTS. For the petitioners : Mr. Yogendra Kumar, Advocate. For the State : Mr. Gajendra Nath Ojha, A.C.To G.A.II For the private Respondents : Mr. Pramod Mishra, Advocate. ----------- 06. 07.12.2010 Heard the parties. Petitioners claim to be the privileged tenants within 2 the meaning of Bihar Privileged Persons Homestead Tenancy Act, 1947 (hereinafter referred to as the ‘Act). They claim that certain ‘Purcha’ in their favour were granted way back in the year 1990, under the orders of the respondent Circle Officer. They are aggrieved by the order dated 21.05.2005 (Annexure- 5), passed by the respondent Sub-Divisional Officer, Jhanjharpur in case no. 01/1989-90, whereby it has been observed that in the facts and circumstances of the case homestead ‘Purcha’ granted to the petitioners was/were not justified. They are also aggrieved by the impugned notices (Annexure 7 series), issued sometimes in June 2010, under the signature of respondent Circle Officer, directing the writ petitioners to return the ‘Purcha’ and vacate the land earlier settled with them as homestead land. Brief facts relevant for disposal of the case may be indicated. According to the petitioners, they were landless persons and residing on small pieces/parcels/tracts of land. They approached the authority under the Act for issuance of ‘Basgit Purcha’. It is the petitioner’s case that several persons including the petitioners were granted ‘ Basgit Purcha’ in respect of the disputed land. Thereafter they constructed their houses and are residing thereon since then. Private respondent nos. 7 and 8 preferred an application before the respondent Collector for setting aside the order granting Basgit Purcha(s)’ issued in the name of the privileged tenants including the writ petitioners which gave rise to Case no. 118/1990-91. By order dated 3 28.12.1992, respondent Collector refused to entertain the said application on certain grounds. Aggrieved by the aforesaid order private respondents herein filed C.W.J.C. no. 1506 of 1993. The said application was disposed of by a Bench of this Court by order dated 08.03.2000, copy whereof has been enclosed by the private respondent nos. 7 and 8 in their counter affidavit as Annexure-1. It appears therefrom that notices were issued to the respondents impleaded therein including the writ petitioners but they did not appear. The matter was thereafter heard and finally disposed of in the following manner:- “……..In the result, therefore, this application is allowed and the order impugned, as contained in Annexure-1 is quashed and the matter is remitted back to the respondent no.2 to dispose of the application filed by the petitioners in exercise of its power under section 21 of the Act in accordance with law. The collector of the District shall give opportunity of being herd to the parties and, thereafter, shall pass necessary orders in accordance with law. No order as to costs.” The private respondents thereafter moved the Collector which gave rise to Misc. case no. 01/ 2001-02. The matter was heard, and by order dated 21.08.2003 (Annexure 4), the order of respondent sub-Divisional Officer dated 26.03.1990 was set aside, and he was directed to initiate fresh inquiry and to dispose of the application. The matter was thus remanded to the said authority. It appears that without any notice to the writ petitioners the Sub Divisional Officer passed the order dated 21.05.2005 (Annexure-5) holding that the issuance of ‘Purcha’ in favour of the writ petitioners was contrary to law and the 4 provision of the Act. It appears further from the record that no step was being taken by the authorities in the light of orders contained at Annexure 4 and 5, which prompted the private respondents to approach this Court once again by filing writ proceeding being C.W.J.C.No. 6858 of 2010, in which the ‘Purcha’ holders including the writ petitioners were impleaded as party respondents. The said writ petition was disposed of by a proceeding dated 26.04.2010 (Annexure -6), whereby at the admission stage itself the matter was disposed of after hearing counsel for the petitioners and the State. Considering the submissions advanced on behalf of the petitioners, a Bench of this Court by aforesaid order disposed of the application in the following manner:- “Let the Collector, Madhubani and Sub-Divisional Officer, Jhanjharpur ensure compliance of their order dated 21.08.2003 and 21.05.2005 as contained in Annexure 3 and 4, as early as possible, in any case within a period of three months from the date of receipt/ production of a copy of this order before the two authorities.” The respondent authorities after disposal of the said case and in the light of direction contained in C.W.J.C.No. 6858 of 2010 (Annexure-6), came out with the impugned notices (Annexure 7 series), whereby the writ petitioners and others were directed to return their Basgit Purcha’ to the authorities and to vacate the land in their possession by reason of Basgit Purcha’ earlier issued in their favour. While assailing the order contained at Annexure-5, as also the impugned notices (Annexure 7 series), learned 5 counsel for the petitioners submits that the petitioners were found privileged tenants under the orders of the authority and were granted ‘Purcha’ way back in the year 1990. They came in possession of their respective pieces/parcels/tracts of land and thereafter constructed their dwelling structures. Neither the Collector under the Act while passing the order contained at Annexure-5 nor the Circle Officer before issuance of impugned notices (Annexure 7 series) gave any opportunity to the writ petitioners by issuing notice(s) to place their respective cases. Referring to previous order passed on the writ petition being C.W.J.C.No. 1506/1993 (Annexure 1 to the counter affidavit of the private respondent), it is submitted that under the orders of the Court as well as by reason of provision under Section 21 of the Act, the authority was bound to issue notice before interfering with the order by which they were granted Basgit Purcha’. In this connection he relies on the averments made in paragraph nos. 9,10 and 11 of the writ petition. Learned counsel appearing on behalf of the private respondents, on the other hand, submits that the authorities have found as a fact that ‘Purcha’ was initially issued in favour of the writ petitioners and few others similarly situate without holding any enquiry in terms of the provision of the Act, and recording a finding that they were privileged tenant. It is the stand of the respondents that the writ petitioners were granted ‘Purchas’ in respect of certain pieces of land by the Bhoodan committee and as such they cannot be said to be privileged tenants within the 6 meaning of the Act. It is next contended that the writ petitioners ought to have assailed the order contained in Annexure-6 passed on the writ petition filed by the private respondents. I have considered the submissions advanced on behalf of the parties. There is no dispute between the parties that initially on an application preferred by the writ petitioners part of the lands in question were settled with the writ petitioners under the provision of the Act. This was done some time in the year 1990. The private respondents approached the respondent Collector for interference with the said order on certain grounds. Initially their prayer was refused. Aggrieved thereby they moved the High Court by filing writ petition being C.W.J.C.No. 1506 of 1993, which was disposed of, and the authorities under the Act were directed to consider their case and dispose of the same on merit. As noticed earlier, this Court had directed that respondent Collector will entertain the application preferred by the private respondents and after giving due notice to the parties decide the matter on merit. It is not seen either from Annexure 4 or Annexure 5, that the notices were issued to the petitioners herein before passing those orders. Impugned notices are consequential to those orders. This Court reminds itself of the fact that as per order dated 21.08.2003 (Annexure 4), the matter was remanded back to the Collector for making fresh enquiry/verification and thereafter to proceed in accordance with law. Parties hereto have neither addressed this Court nor there is any material on record to indicate that respondent Sub Divisional Officer in terms of 7 the said direction initiated fresh verification/enquiry in which parties were noticed and heard. Section 21 of the Act reads as under:- “21. Power of the Collector of the District to call for and examine records- Notwithstanding anything to the contrary contained in any judgment, decree or order of any Court or authority; the Collector of the district may on his own motion or on the application of any party, or on reference being made by any subordinate authority, call for and examine record of any case decided or proceeding taken by the Collector under the Act for satisfying himself as to the regularity of the proceeding or to the correctness, legality or propriety of an order passed by the Collector under the Act in the case or proceeding, and may after, allowing the parties concerned opportunity of being heard, direct that the case or the proceeding be re-opened and disposed of afresh in accordance with the provisions of this Act.” It is seen from the provision of the Act quoted hereinabove read with the operative portion of Annexure-1 to the counter affidavit of the private respondents that notices were required to be issued and served on the writ petitioners before invocation of the jurisdiction. This Court from the pleadings made in the writ petition and after perusal of the counter affidavit is satisfied that the aforesaid stand of the writ petitioners that they were not given any opportunity of hearing is somewhat admitted. In that view of the matter, this Court is inclined to invoke its writ jurisdiction in favour of the writ petitioners. The application is, therefore, being disposed of in the following manner:- (i) Impugned Notices (Annexure 7 series), so far as 8 they relate to the writ petitioners, are quashed and set aside. The matter is remanded back to the respondent Sub Divisional Officer for fresh consideration in the light of provision of the Act and observation made by the respondent Collector in his order dated 21.08.2003 (Annexure 4). Before deciding the issue afresh the respondent Sub Divisional Officer is required to give opportunity of hearing to both the parties. Learned counsel for both the parties state before this Court that they shall appear before the respondent Sub Divisional Officer along with a copy of the present order within a period of 05 weeks from today. While deciding the issue afresh the Sub Divisional Officer shall not be precluded in any manner by his previous order dated 21.05.2005 (Annexure 5). It is expected that respondent Sub Divisional Officer shall dispose of the matter finally within a period of 04 months from the appearance of the parties before him. It is made clear that till disposal of the matter by the said authority status quo in relation to the lands claimed in possession of the writ petitioners shall be maintained. Sym ( Kishore K. Mandal, J.)