IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5878 of 2011 Gonai Mandal son of late Buddhu Mandal, resident of village Dhumgarh Pothiya, P.S. Simaraha, District Araria … … Petitioner Versus 1. The State Of Bihar, 2. The Collector, Araria, 3. The Circle Officer, Forbesgunj, Araria, 4. Naresh Mandal, 5. Suresh Mandal, Both sons of Bengai Mandal, resident of village Pothiya, P.S. Simraha, District Araria, … … Respondents For the Petitioner: Mr. Ashok Kumar Singh, Advocate For the State: Mr. Dilip Kumar, AC to GA 2 For Res. Nos. 4 & 5: M/s Mrigendra Kumar and G.P. Gupta, Advocates … 5 19.09.2011 Heard learned counsel for the petitioner, the State and respondent nos. 4 and 5. Petitioner seeks quashing of the order dated 13.11.2010 passed by the Collector, Araria in Basgit Purcha Revision Case No. 13/2007-08 under section 21 of the Bihar Privileged Persons Homestead Tenancy Act, 1947 (hereinafter to be referred to as “the Act”) and also the order dated 07.03.2006 passed by the Circle Officer, Forbesganj, Araria granting homestead purcha in Case No. 37/2005-06 in favour of respondent nos. 4 and 5. Petitioner’s case is that the name of his father Buddhu Mandal stands recorded as sikmidar in the 2 revisional survey record of rights and a house has been built upon the land wherein his family is living since long. The land holder, namely, Suwayee Mandal had died long back. The private respondent nos. 4 and 5 deceitfully made an application claiming to be privileged persons over the said land and obtained homestead purcha. The said order was challenged before the Collector of the District in revision, however, the said revision has also been dismissed. The first point raised by the petitioner is that the land holder Suwayee Lal Mandal, having died long before the proceeding was initiated, the notice claimed to have been served upon the land holder would be invalid and that would vitiate the entire proceeding in view of the fact that no notice was issued upon his heirs and legal representatives. The second submission on behalf of the petitioner is that the father of the petitioner was duly recorded as sikmidar with respect to the land under the land holder Suwayee Lal Mandal. That being so, no homestead purcha could have been issued with respect to the land upon which he enjoined sikmi rights. Thirdly, it is contended that both the private respondents had purchased 3 the land vide sale deeds in the names of their mother and their wives prior to granting homestead purchas in their favour, therefore, they cannot be considered as privileged persons. A counter affidavit has been filed on behalf of respondent nos. 4 and 5. A stand has been taken in paragraph 6 thereof that the petitioner as well as the private respondents are the descendants of common ancestor, namely, Khantar Mandal to whom the land originally belonged. The aforesaid Khantar Mandal died leaving behind three sons, namely, Buddhu Mandal, Basanu Mandal and Tenu Mandal, who were in joint possession over the land in question. Buddhu Mandal, i.e., the father of the petitioner, after the demise of Khantar Mandal, became Karta of the joint family being eldest brother and as such, he was looking after the house management and other activities related to the lands. Further stand of the respondents is that during the revisional survey operation Buddhu Mandal fraudulently got recorded his name as sikmidar in the revisional survey record of rights though all the three persons were coming in joint possession of the land. Thereafter, there was 4 amicable partition in the family and the land in question had been given to the exclusive share of the grand-father of these private respondents, namely, Basanu Mandal, who had been coming in possession over the same and had constructed thatched house thereupon and started residing therein with his family. Aforesaid Basanu Mandal died leaving behind one son, namely, Bengai Mandal, who inherited the same and came in possession over the land in question. Bengai Mandal died leaving behind the respondent nos. 4 and 5, who had inherited the land in question and are residing therein with their family upon the house standing over the land in question. In the opinion of this Court, the aforesaid stand taken by these respondents completely demolishes their claim that they are privileged tenants and in that capacity they were residing over the land in question for several years. It is the claim of the respondents that the land in question was their ancestral land which was given to their branch in a private partition along with other lands. It is strange as to how such persons would claim a homestead purcha of the land though at the same time they claim ownership of that land. The respondents have claimed 5 that the father of the petitioner had fraudulently got his name entered in the revisional survey record of rights as sikmidar, thus, it stands admitted that the name of the father of the petitioner was recorded as sikmidar. In compliance of the order dated 23.08.2011 passed by this Court, the original record of Basgit Purcha Case No. 37/2005-06 has been produced before me. From the record it appears that the notice was issued in the name of one Suwayee Mandal considering him to be the landlord of the land in question. Though it is recorded in the ordersheet that there is valid service of notice upon the aforesaid Suwayee Mandal, but that fact is supported by any material available in the records. The claim of the petitioner is that Suwayee Mandal had died about ten years before the initiation of the proceeding though the same is denied by respondent nos. 4 and 5 stating that the aforesaid Suwayee Mandal was alive at the time of initiation of the proceeding. However, from the records of the aforesaid Basgit Purcha Case it appears the notice has been served upon Kayamidar but from the entry on the backside of the notice regarding its service, it does not appear that the notice was already served upon the 6 Kayamidar himself. Though it has been stated in 3-4 lines report of the Circle Inspector that the applicants have been residing upon the land by constructing a house since long and also that they are landless persons. However, it is not stated anywhere as to what was the basis of the report of the Circle Inspector specially in view of fact that he had not looked into the survey record of rights where the name of the father of the petitioner admittedly stands recorded as sikmidar. The Collector has dismissed the revision application on the ground that the petitioner has purchased the land after issuance of homestead purcha, however, there is no finding with regard to the aforesaid fact. Thus, in my opinion there has been non-consideration of the fact by the original authority with regard to the entry in the revisiosnal survey record or proper service of notice upon the land holder. In above view of the matter, this Court is constrained to hold that the impugned orders cannot be sustained in the eyes of law and, as a result, they are quashed and set aside and the matter is remitted back to the respondent-Collector, respondent no. 2, for fresh consideration, and passing a reasoned order after granting 7 opportunity of hearing to all concerned including the petitioner, within three months from the date of receipt/production of a copy of this order. He would also be obliged to consider the facts which have arisen in this writ application and have been discussed as above. Accordingly, this writ application is disposed of with the direction and observation as indicated above. SC ( Dr. Ravi Ranjan, J.)