IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3033 of 2003 SHEOJI MISHRA, SON OF RAM AUTAR MISHRA, RESIDENT OF VILLAGE NUAON, P.S. – BUXAR, DISTRICT – BUXAR. ……….. PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE COLLECTOR OF BUXAR. 3. THE LAND REFORMS DEPUTY COLLECTOR, BUXAR. 4. THE ANCHAL ADHIKARI, BUXAR. 5. BITTAN SAH. 6. SHEO SHANKAR SAH. RESPONDENTS NOS. 5 AND 6, BOTH SONS OF LATE BALGOBIND SAH. 7. KEDAR SAH, SON OF JIUT SAH. 8. RAGHUNATH GOND, SON OF KRIPAL GOND. 9. SHANKAR AHIR, SON OF MANI AHIR. 10. MANAGER AHIR, SON OF HEMRAJ AHIR RESPONDENT NOS. 5 TO 10 RESIDENT OF VILLAGE NUAON, P.S. – BUXAR, DISTRICT – BUXAR. …………… RESPONDENTS. ----------- For the petitioner :- Mr. Mathura Nath Roy, Advocate. Mr. Prabhat Kumar, Advocate For the State :- Mr. S. K. Giri, A.C. to S.C. V. For the Respondent Nos. 5 to 10 :- Mr. Rang Nath Choubey 4 23.07.2009 Heard Mr. Mathura Nath Roy, learned counsel for the petitioner and Mr. Rang Nath Choubey appears for the private respondent nos. 5 to 10. State is represented by Mr. S. K. Giri, A.C. to S.C. V. The petitioner is aggrieved by order dated 26.07.2002 passed by the Collector, Buxar in Case No. 3 of 1998 under the Bihar Privileged Persons Homestead Tenancy Act, 1947. It would be necessary to portray certain essential facts as under. In Settlement Case No. 19 of 1966-67, an area of 28 decimals of land appertaining to khata no. 30, plot no. 275 in village Nuaon, within Buxar Anchal of then District Shahabad (now district Buxar) was settled with the petitioner by order dated 26.12.1967 passed by 2 the respondent no. 4 Anchal Adhikari, Buxar which was followed by delivery of possession. A Title Suit No. 41 of 1968/163 of 1975 was filed by the petitioner for declaration of his title over the encroached portion of land in dispute plot no. 275 land in dispute as above and for removal of encroachment by the defendants including Balgobind Sah (father of respondent nos. 5 and 6), Jiut Sah ( father of respondent no. 7), Kripal Gond (father of respondent no. 8), Hemraj Ahir (father of respondent no. 10) and others. Suit was decreed in favour of the petitioner and defendants were directed to remove the encroachment by the court. Thereafter a Title Appeal No. 12 of 1976 was preferred by the defendants and due to the initiation of consolidation operations in the area concerned the appeal as well as suit and decree abated under Section 4 (C) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. Thereafter, the petitioners moved before the Consolidation Officer, Buxar in the matter and the claim of the petitioner was allowed as per the order which is contained in Annexure 7 of this writ application. Subsequently, the respondents filed a petition before the DCLR, Buxar for annulling the aforesaid settlement and issuance of homestead parcha in their favour as they claim that they are having their homestead thereupon. It was contended in the aforesaid application, which is contained in Annexure – 3, that the settlement done in favour of the petitioner in the year 1965 is posing problem for them, therefore, the same be cancelled and homestead parcha should be issued in their favour. This application was filed in the year 1993. It appears that the Anchal 3 Adhikari, Buxar passed an order for issuance of homestead parcha in favour of the concerned respondents. Aforesaid order was challenged by filing a writ application and the writ application was allowed by order dated 8.8.1994 as contained in Annexure – 6 directing the authority concerned to redecide the matter afresh. However, the finding of the concerned Anchal Adhikari that the respondents are privileged persons within the meaning of Section 2 (i) of the Act was not disturbed. The matter again traveled to this court in CWJC No. 601 of 1996 and by order dated 28.01.1998 the Collector was directed to decide the issue. Thereafter, the Collector, Buxar on observing that the records were not available in his office directed for fresh spot verification local inspection. Relying thereupon, he had passed the impugned order dated 26.7.2002 upholding the earlier order of the Anchal Adhikari, Buxar, holding that the private respondents were residing upon the land in dispute after constructing a hut. As a result, he directed for issuance of homestead parcha in favour of the respondents concerned. Learned counsel for the petitioner submitted that the order is patently illegal as the same has been passed without appreciation of the relevant fact. Learned counsel drew the attention of this court towards the application itself which was filed by the private respondents as contained in Annexure – 3, wherefrom it is manifest that it was filed for the purpose of cancelling the settlement in favour of the petitioner and also for settling the land in favour of the applicants therein. However, without annulling the earlier settlement 4 of the year 1965 by adopting a proper procedure of law, the homestead parcha has been issued in favour of the private respondents. Secondly, from the order passed by the Consolidation Officer, it is manifest that the claim of opposite parties therein was that on the land in dispute, their “Nad” and “Khuta” exists as well as their ingress and egress is also through the aforesaid land. The Consolidation Officer had rejected the contention of the opposite party and had ordered for entry of the name of the petitioners in the relevant records. It is contended that it is also manifest from the aforesaid order that the private respondents had their house besides the plot in dispute and they claimed only passage through the aforesaid land. No counter affidavit refuting such allegations has been filed by the private respondents. The learned counsel for the respondents failed to demonstrate that all the issues have been considered and decided by the Collector, Buxar at the time of passing the order dated 26.7.2002. In view of the above, I am constrained to hold that the order dated 26.07.2002 passed by the Collector, Buxar in Case No. 3 of 1998 is liable to be quashed as the same has not been passed upon consideration of the facts of earlier settlement as well as the decisions of the various authorities including the Consolidation Officer and also the points raised by the petitioners. As a result, this writ application is allowed the order dated 26.7.2002 as contained in Annexure 13 is set aside and the matter is remitted back to the Collector, Buxar to decide the issue afresh upon 5 consideration of all the relevant facts after hearing the parties. There will be no order as to costs. kundan (Dr. Ravi Ranjan, J.)