IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15321 of 2010 AHILYA KUMARI . Versus THE STATE OF BIHAR & ORS . ----------- 5. 30.11.2010 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner is aggrieved by order dated 10.8.2010 passed by the Collector, Samastipur in Encroachment Case No. 18 of 2010. The impugned order cancels the Basgit Parcha given to the deceased mother of the petitioner on 8.9.1970 with respect to 5 dec. of land on Plot No. 997, Khata No. 116, Village Madudabad, Circle Mohiuddin Nagar, District Samastipur. It is submitted that the Basgit Parcha was granted to the mother of the petitioner in her life time on 8.9.1970. During her life time Zamabandi No. 574 was created in her favour and she paid rent regularly and received rent receipts. Even after her death the petitioner has continued to pay rent. After her death in 1993 nearly 26 years later on 8.11.1996 Basgit Parcha Misc. Case No. 1 of 1996-97 was initiated and without opportunity of hearing to the petitioner the parcha was cancelled. The petitioner filed CWJC No. 12359 of 1996 disposed on 16.1.1997 granting liberty to file a representation with relevant documents. The matter then came to be dismissed for non prosecution on 12.3.2008 wrongly, questioned again in CWJC No. 1066 of 2009. The application was allowed on 9.3.2010. The dismissal was set aside and directions issued to the Collector to proceed for decision in accordance with law. In pursuance thereof the impugned order has been passed. 2 It is submitted that the order suffers from various illegalities and both the order dated 8.11.1996 and the present impugned order dated 10.8.2010 do not contain any discussion of the order granting parcha on 8.9.1970 and on what reasoning the discussion on satisfaction of which the parcha was directed tobe granted and acted upon was found to be erroneous. Learned Counsel for the State from the counter affidavit and the impugned order strenuously sought to persuade the Court that the lands for which Basgit parcha were granted had been acquired for the purposes of a Block Office in 1958 and therefore no settlement could have been made in her favour. The petitioner has been given due hearing and a finding has been arrived at of a wrong settlement. There being no infirmity in the decision making process, this Court may not interfere with the findings of fact in the writ jurisdiction. The mother of the petitioner in her life time was granted a Basgit parcha for the lands settled in her favour on 8.9.1970. This fact is not in dispute. There shall be a presumption under Section 114(e) of the Evidence Act that the official acts of settlement were performed in accordance with law to the full satisfaction of the authorities concerned with regard to the entitlement of mother of the petitioner. The presumption is rebuttable. The onus lies on the person who questions the presumption and not on the person in whose favour the presumption lies. Once the initial onus is discharged by the person who questions the presumption, only then does the burden shift on to the person who claims benefit of the presumption. 3 What were the materials which were produced before the authorities by the mother of the petitioner, what kind of enquiry was made, what materials were considered and what final order based on the same were passed was best known to mother of the petitioner and the authorities who passed the order. By passage of years the mother of the petitioner being deceased the best evidence that was available for the settlement granted in favour of the deceased is no more available with her demise. Therefore the respondents proceeded by a process of reasoning to re-decide and declare illegal today for paucity of evidence what may have been legal when it was done. There may be a case where the document itself may speak that the settlement was illegal. In other words if the order dated 8.9.1970 was palpably illegal on the face of it perhaps no benefit could flow thereunder. But before such finding can be arrived at there has to be a threadbare discussion of the order dated 8.9.1970 and the recitals contained therein to arrive at a conclusion by the successor in office as to what was the illegality in that order, call upon the petitioner to meet the same and then only arrive at a conclusive fresh finding. The successor authority cannot reopen or decide the matter subsequently after long 26 years and then proceed to adjudicate that the order granting parcha dated 8.9.1970 was illegal without a discussion of that order and in what manner it was illegal. In AIR 1916 Privy Council 110 (Banga Chandra Dhur Biswas & another Vs Jagat Kishore Acharjya Chowdhuri) it has observed as follows:- “But in such a case as the present their Lordship do not think that these recitals can be disregarded, nor on the other hand can any fixed and inflexible rule be laid down 4 as to the proper weight which they are entitled to receive. If the deeds were challenged at the time or near the date of their execution, so that independent evidence would be available, the recitals would deserve but slight consideration, and certainly should not be accepted as proof of the facts. But, as the time goes by and all the original parties to the transaction and all those who could have given evidence on the relevant point have grown old or passed away, a recital consistent with the probability and circumstances of the cased assumes great importance and cannot lightly be set aside…………” Learned Counsel for the State finds himself at a loss to demonstrate from the impugned orders dated 8.11.1996 and 10.8.2010 that it contains any detailed discussion as to what was the reasons recorded in the order dated 8.9.1970 and on satisfaction of which Basgit Parcha was granted to the mother of the petitioner. Quite obviously when her mother is not alive the petitioner had limited resource to collect materials. The facts which were known to his mother alone have been buried with her mother. It is not in controversy in the counter affidavit that the respondents have created a Zamabandi and have accepted rent for the settled land for long years. The counter affidavit again does not even attempt to assail the order of settlement dated 8.9.1970 on merits. In AIR 1937 Privy Council 27 (R.T. Rangachari Vrs Secretary of State) it has been held as follows:- “In these circumstances the case becomes a case in which after Government officials duly competent and duly authorized in that behalf have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in effective operation, purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision.” 5 In (1976) 1 SCC 234 (State of Assam & another Vrs J.N.Roy Biswas) the delinquent was exonerated in a departmental proceeding. Accepting the powers of the Government to initiate a fresh departmental enquiry it was held at paragraph 4 as follows:- …………… It can be; but once a disciplinary case has closed and the official reinstated, presumably on full exoneration, a chagrined Government cannot restart the exercise in the absence of specific power to review or revise, vested by rules in some authority. The basics of the rule of law cannot be breached without legal provision or other vitiating factor in validating the earlier enquiry ……………” This Court therefore finds it difficult to sustain the impugned orders dated 8.11.1996 and 10.8.2010. They are accordingly quashed. The writ application stands allowed. Snkumar/- (Navin Sinha,J.)