IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15181 of 2001 ABU BAKAR KHAN @ LAKHI KHAN Versus STATE OF BIHAR & ORS ----------- 5. 24.09.2008. Heard learned counsel for the petitioner and the State. None appears for private respondent no.5, although he has been served with the notice of these proceedings. 2. Petitioner who is purchaser of 31 decimals of land equivalent to 9 Katha 18 Dhurs Vide registered sale deed dated 14.12.1970, Annexure-1 is aggrieved by the order dated 7.6.1995 passed in Basgit Purcha Case No. 05 of 1994-95, Annexure-6 whereunder 8 decimals of the aforesaid land was given to the Purcha holder, private respondent no.5, so that his living in his own house raised over 4 decimals of land may become more comfortable. It is submitted on behalf of the petitioner that none of the provisions of the Bihar Privileged Persons Homestead Tenancy Act, 1947(hereinafter referred to as “the Act”) or the Bihar Privileged Persons Homestead Tenancy Rules, 1948(hereinafter referred to as “the Rules”) framed thereunder permit the land of the land holder be given to the Purcha holder for making his living comfortable.. It is further submitted that in terms of the provisions of the Act and the Rules, only privileged persons who are tenants under the land holder can be provided land for the purposes of homestead and private respondent no.5 had his house over 4 decimals of land could not have been given 8 decimals of land out of the lands purchased by the petitioner after demolishing the boundary wall as he is not a privileged tenant under the petitioner. - 2 - Petitioner is further aggrieved by the order dated 19.9.2001 passed by the Collector, Gaya in Case No. 166 of 1999, Annexure-7 whereunder the appeal filed against the order dated 7.6.1995 was dismissed as barred by limitation. 3. In response to the writ petition, the official respondents have filed counter affidavit duly affirmed by the District Panchayat Officer, Gaya in which it has been admitted that in order to facilitate the living of private respondent no.5 he was provided with 8 decimals of land of the petitioner by demolishing his boundary wall and was also put in possession of the same. 4. Having heard counsel for the parties, it is evident from the impugned orders and the averments made in the writ petition, the counter affidavit that the authorities without recording any finding that private respondent no. 5 was a privileged tenant within the meaning of the Act under the petitioner, put him in possession of 8 decimals of land, which the petitioner had purchased Vide registered sale deed dated 14.12.1970, Annexure-1, which is wholly impermissible in terms of the provisions of the Act and the Rules as thereunder only those who are privileged tenant within the meaning of the Act can be issued Purcha and put in possession of the lands in question. The Act and the Rules does not contemplate to put a person who is not a privileged tenant under the land holder in possession of the lands of the land holder by demolishing his boundary wall. In the circumstances, this Court has no option but to set aside the order dated 7.6.1995, Annexure-6 and the consequent Purcha as also the appellate - 3 - order dated 19.9.2001, Annexure-7 and the Collector, Gaya, Respondent No.2 is directed to ensure that 8 decimals of land of the petitioner which was given to private respondent no. 5 under Purcha be restored to the petitioner and petitioner be further provided the cost of the boundary wall which was forcibly demolished. Necessary compliance of this order be reported by the Collector, Gaya to this Court by filing a report, 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. 5. This writ application is, accordingly disposed of. Rajesh/ (V.N.Sinha,J.)