IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8255 of 2008 NAJEERA KHATOON, WIFE OF MD. MUJABIR ALAM, RESIDENT OF VILLAGE- MAKHDUMPUR, POLICE STATION- KATIHAR (MUFASSIL), DISTRICT- KATIHAR. ----- PETITIONER Versus 1. THE STATE OF BIHAR. 2. THE DISTRICT MAGISTRATE, KATIHAR. 3. THE DEPUTY COLLECTOR, LAND REFORMS, KATIHAR. 4. THE SUB-DIVISIONAL MAGISTRATE, KATIHAR. 5. THE CIRCLE OFFICER, MANSAHI, KATIHAR. 6. THE CIRCLE INSPECTOR, MANSAHI, KATIHAR. 7. THE HULKA KARAMCHARI, MANSAHI, KATIHAR. 8. THE CIRCLE AMIN, MANSAHI, KATIHAR. ----- RESPONDENTS For the Petitioner :- Mr. N.K. Agrawal, Senior Advocate Mr. R.P. Sah, Advocate For the Intervenors/Respondents:- Mr. Dhirendra Kumar Jha No.-2 For the State :- Mr. Md. Fazal Rahman, G.P. 6 ----------- 9 6.8.2009 Being aggrieved with the order dated 29.4.2008 passed by the Sub-divisional Officer, Katihar in Settlement Case No. 2/06-07 the petitioner has moved this Court for quashing of the said order. By the impugned order, the land settled to the petitioner at Mauza-Marangi, Thana No. 116, Khata No. 213, Khesra No. 2 measuring 0.15 decimals has been cancelled. The facts are that the petitioner who is a handicapped lady applied to the Circle Officer, Mansahi on 5.12.2006 for grant of settlement of land in her favour. The Circle Officer, Mansahi, Katihar called 2 for a report from the Halka Karamchari, Mansahi, Katihar and Circle Amin, Mansahi, Katihar and after the report was submitted, a public notice was issued and the Circle Officer, Mansahi, Katihar vide order dated 16.7.2007 contained in annexure-2 recommended the lands in question be settled in favour of the petitioner. The record was sent to the Deputy Collector, Land Reforms, Katihar. The Deputy Collector, Land Reforms, Katihar vide order dated 6.9.2007 approved the proposals sent by the Circle Officer, Mansahi, Katihar and by order dated 19.9.2007 issued direction for issuance of settlement order/warrant of settlement in favour of the petitioner and also directed the concerned Hulka Karamchari to open Jamabandi in the name of the petitioner. The petitioner in pursuance of the order of settlement started to pay rent to the State of Bihar. The aforesaid facts are not disputed and admitted by both the parties. It may be mentioned here that the petitioner asserts that she has been residing with her husband at Sirnia West Panchayat in her 3 ‘Naihar’ after her marriage. The orders by the Circle Officer and Deputy Land Reforms Collector with respect to settlement of the land in favour of the petitioner are annexed to the writ application. A counter affidavit has been filed on behalf of the State in which they have justified the order by stating that a complaint petition was filed by one Lalita Srivastava, wife of Shri Brij Kishore Prasad Lal and Shyam Lal Singh, wife of Sri Ramesh Chandra (Intervenor in the writ) complaining of forcible erection of a ‘Tatti’ (partition) and a pole on western edge of the road by the petitioner’s husband. The District Magistrate directed the Sub- divisional Officer to enquire into the matter and report to him. After the report was received the District Magistrate has ordered that Departmental proceedings should be started against the erring officers. An intervention application has been filed numbered as I.A. No. 3348 of 2009 which is being heard along with the writ application. The intervenors who are also 4 the persons responsible for filing an application before the District Magistrate claim that Khesra No. 2 of Khata No. 213 has a total area of 32 decimals and from this Khesra a pitch road goes from south to north, i.e. from village- Haflaganj to Makhdumpur and from the eastern side of Khesra No. 2, another pitch road crosses, which goes from Mansahi Anchal to Kuretha and Pranpur. It is claimed by the intervenors that egress to roads/path has been blocked. It is also the case of the intervenors that they had purchased a piece of land by a registered sale deed in plot no. 1 way back in the year 1984. The intervenors claim that there is an obstruction by the settlement and the intervenors find it difficult to access the pitch road. The map has been annexed with the intervention application as annexure- I/1. At the outset it may be pointed out by this Court that the claim of the intervenors is not at all sustainable in view of the fact that the petitioner has been settled .15 decimals of land of plot no. 2. Between 5 plot no. 1 and 2, is a pitch road which is easily accessible to the petitioner’s plot of land, besides which there is also a pitch road adjoining the intervenors plot by which he can travel up and beyond the village in which they live, and therefore, the objection on the very face of it is unsustainable. Certain legal arguments had also been advanced on behalf of the intervenors which I shall discuss at a later stage. In this back drop this Court will now examine the order of the Sub-divisional Officer on the basis of which the settlement has been cancelled. The Sub-divisional Officer has come to the following findings:- (1) That plot no. 1 is the Raiyati land of the intervenors and plot no. 2 belongs to the State of Bihar and has been settled to the petitioner. It has been observed that the settlement to the petitioner of .15 decimals of land causes obstruction to the intervenors in travelling from Haflaganj to Makhdumpur. It has also been observed that it causes communal 6 feeling between them. (The latter part is not based on any record or complaint on behalf of petitioner.) (2) It is said that there is a pitch road just next to plot no. 2 and it may be that in the near future the road may be broadened. (3) He has also come to a finding that the petitioners have made their Jhopri and are living on the said plot. (4) The petitioner and her husband are residents of Purnea and are now living in the district of Katihar. (5) That the petitioner was not earlier residing on the said plot of land. (6) The settlement has caused the dissatisfaction to the members of the Non- Muslim community. Here, I would like to comment and observe that it is repugnant to any Court of law that any officer of the State should recognize and encourage such feelings, and record it as a reason for interference in his order. The least said about the officer concerned the better. On the basis of the aforesaid 7 findings the cancellation of Parcha has been issued. I shall first deal with the finding regarding obstruction to the road. The intervenors have annexed the map of the area where plot nos. 1 and 2 are situated which also shows the roads which are situated just adjacent to the plot of the intervenors as well as the petitioner. In other words the petitioner is one side of the road whereas the intervenors have their plot of land on the extreme other side of the road. The finding of the Sub-divisional Officer is falsified by the map annexed by the intervenors and as such this Court finds that there is no question of obstruction to the intervenors or to the people of the village by the settlement made in favour of the petitioner and, therefore, this cannot be held to be a valid ground for cancellation of the settlement. The second aspect that the intervenors have complained that the settlement is disliked by the members of the Hindu community cannot be accepted as a good 8 reason for setting aside the order of settlement. Lastly, this Court will discuss whether the petitioner could have been settled this land even though he was not an occupant of this land? The contention of the learned counsel appearing on behalf of the intervenors is that the petitioner is not a privilege person. Clause (i) of Section 2 defines privilege person. 3[(i) “privileged person” means a person- (1) who is not a proprietor, tenure- holder, under-tenure-holder, or a mahajan; and (2) who, besides his homestead, holds no other land or holds any such land not exceeding one acre. The petitioner would come under Sub-clause (a) of Clause (i). The entire purpose of the intention of the legislature is to improve the lot of the weaker section of the society and secure for him a piece of land for their residential purposes. Admittedly the petitioner was a landless 9 person and had no other land, in fact, the petitioner has gone so far has to admit that her husband has 11 decimals of land in the district of Purnea. Besides this 11 decimals he has no other land. The argument is that the person in whose favour the land is settled under the Bihar Privilege Persons Homestead Tenancy Act, 1947 should have been in occupation of the land which has been settled in his favour. I do not find that Sub-section (i) restricts the privilege of granting settlement only to a person who is occupying a piece of land belonging to the State of Bihar for one reason or the other. In fact the argument that the petitioner is a privilege tenant is not applicable in this case at all because a privilege person is a person who holds homestead land under another person and is or to have special contract would be, liable to pay rent for such homestead to such person. The petitioner therefore, is not a privilege tenant as the petitioner does not own any homestead land under anyone. More over, in this case the petitioner had not suppressed 10 the fact that she did not own any land in the district of Katihar and it was on this basis that she claims that settlement should be made in her favour. It has also been stated that the petitioner’s husband is the Sarpanch of the village. There are no foundational facts to even suggest that the petitioner’s husband obtained settlement after he was elected as Sarpanch or that he used his position to obtain the said settlement for his wife. The next issue which troubles the mind of this Court is that Could the Sub- divisional Officer/District Magistrate cancel the settlement in the manner which it was done. If the settlement is to be cancelled there is procedure to be adopted under the law. Section 8 of the Bihar Privilege Persons Homestead Tenancy Act, 1947 deals with the ground on which a privilege tenant may be ejected. Section 8 reads as follows:- 8. Grounds on which a privileged tenant may be ejected. (1)-A privileged tenant shall be liable to ejectment on the 11 following grounds and not otherwise, namely.- (a) on the ground that he has used the holding or any part thereof in a manner which renders the holding unfit for the purposes of the tenancy. (b) on the ground that he has failed to pay the rent of the holding for two years. provided- firstly, that no privileged tenant shall be so ejected except in execution of an order for ejectment passed by the Collector 1[* * *] secondly, that no such order passed on the ground referred to in clause (b) shall be executed, if the full amount of the arrears of rent together with interest, if any; or where there has been a decree for such arrears, the amount payable under such decree is deposited with the Collector within three months from the date on which the order was signed; thirdly, that before executing an order 12 for ejectment, the Collector shall grant such time as he may consider reasonable to the privileged tenant for removing the materials of the building, if any, erected by the privileged tenant on such holding or any part thereof; 1[fourthly, that no privileged tenant shall be ejected unless he holds at least one-tenth of an acre, being land in the village in which his homestead is situate, which is, in the opinion of the Collector suitable for erecting a building for residential purpose. On perusal of Section 8 it would be appear that non of the grounds mentioned in Sub-section (1) of Section 8 are applicable as far as the petitioner is concerned. Petitioner is paying rent to the State of Bihar and is living on the said plot of land after building a hut and, therefore, the petitioner cannot be ejected for the reasons mentioned in the impugned order. Besides the fact that the petitioner could not be ejected, by the impugned order especially on the grounds 13 mentioned in the impugned order, it would be relevant to state that the said order has been passed without giving a show cause notice to the petitioner and in the teeth of principles of natural justice. Undoubtedly, Section 21 of B.P.P.H.T Act empowers the Collector of the district to call for the records and examine them for the purpose of 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-open and disposed of afresh in accordance with the provisions of law. The provision under Section 21 has not been exercised in any manner besides which there is no order of the Collector for ordering for re-opening or re-starting of the proceeding much less has any opportunity being given to the petitioner to appear and file a show cause in the matter. This Court finds that the order 14 impugned is unreasonable, arbitrary and malafide on facts and law and as such the order dated 29.4.2008 is quashed for the reasons mentioned aforesaid. The writ application is allowed. Sanjay/A.F.R. (Sheema Ali Khan, J.)