IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 16522 of 2004 Shreedhar Narain Choudhary, son of late Rajendra Narain Choudhary, Resident of village – Khirhar, P S – Khirhar (Harlakhi), District – Madhubani - Petitioner V e r s u s 1 The State of Bihar 2 The Collector, Madhubani 3 The S D O, Benipatti, District – Madhubani 4 The Circle Officer, Benipatti, District – Madhubani 5 Anup Ram, son of Genai Ram 6 Yogendra Ram, son of Anup Ram 7 Raj Kumar Ram, son of Dukhi Ram 8 Lakhan Ram, son of Dukhi Ram 9 Ram Bilash Ram, son of Dukhi Ram 10 Lakshuman Sadai, son of Rajan Sadai 11 Sita Ram Sadai, son of Tetar Sadai 12 Aghnu Sadai, son of Tetar Sadai 13 Pancha Sadai, son of Bikan Sadai 14 Sukan Sadai, son of Rupan Sadai 15 Janak Sadai, son of Rebi Sadai 16 Hirai Sadai, son of Mahit Sadai 17 Chaitu Ram, son of Gyan Chand Ram 18 Budhu Ram, son of Gyan Chand 19 Genu Raut, son of Sunder Raut 20 Kamal Mandal, son of Khur Khur, all residents of village – Kesuli, P S – Benipatti, District – Madhubani - Respondents WITH C W J C No 10023 of 2005 1 Jhulphi Sadai, son of late Rajan Sadai 2 Bhogi Ram, son of Sri Anup Ram 3 Ram Prasad Ram, son of Sri Dukhi Ram 4 Jhapsu Ram, son of late Gyan Chan Ram 5 Mangal Ram, son of Sri Dukhi Ram 6 Awadh Ram, son of late Tilak Ram 7 Subadh Ram, son of late Tilak Ram 8 Sobhit Sadai, son of late Tetar Sadai 9 Awadh Kamat, son of late Genai Kamat 10 Malhu Pandit, son of late Mauze Pandit 11 Pancha Paswan, son of late Govin Paswan 12 Ramji Paswan, son of late Siyalal Paswan 13 Ramshobhit Paswan, son of late Manager Paswan, all residents of village – Kesuli, P S – Benipatti, District – Madhubani - Petitioners V e r s u s 1 The State of Bihar 2 The District Collector, Madhubani 3 The Subdivisional Officer, Benipatti, District – Madhubani 4 The Circle Officer (Anchal Adhikari), Benipatti, P S – Benipatti, District – Madhubani 5 Sridhar Narayan Choudhary, son of late Rajendra Narayan Choudhary 6 Haldhar Narayan Choudhary, son of late Rajendra Narayan Choudhary 2 7 Giridhar Narayan Choudhary, son of late Rajendra Narayan Choudhary, residents of village – Khirhar, P S – Khirhar (Harlakhi), District - Madhubani - Respondents *** 6 30.06.2011 The two writ petitions are interrelated and, as such, have been heard together. In the first writ petition that is CWJC No 16522 of 2004, private respondent No 19 died. A substitution application is there. The same is allowed. Mr H P Singh appearing for other private respondents states that he has the vakalatnama for the proposed heirs and is filing the same. The same is accepted. As such, respondent No 19 is duly represented. A counter affidavit on behalf of respondents is filed and is on record and a rejoinder thereto is also filed. In the first writ petition, petitioner challenges the order as passed by the Circle Officer, Benipatti, District – Madhubani as partly affirmed by the Collector, Madhubani granting basukit parcha in relation to 29 persons. In appeal, the Collector invalidates 13 such basukit parchas affirming 16. Thus, the writ petition is related to the 16 basukit parchas. The second writ petition being CWJC No 10023 of 2005 is by the 13 persons whose basukit parcha was not affirmed and cancelled by the Collector in those proceedings. It is this that connects the two writ petitions. Heard the parties. With their consent, the writ petitions are being disposed of at this stage itself. Learned counsel for the petitioner submits that the private respondents in the first writ petition and the petitioners in the second writ petition are rank land grabbers who, taking advantage of the law and order 3 situation prevailing then, unauthorisedly entered upon petitioner’s land which was an orchard and then made application to the Circle Officer, Benipatti under the provisions of the Bihar Privileged Persons Homestead Tenancy Act, 1947 for being declared as privileged tenants and for being issued occupancy certificates accordingly known as basukit parcha. Without notice to the petitioner or his co-sharers, a collusive enquiry report was obtained even though it admitted that the land was an orchard on which 29 persons had built their huts. Those were recommended to be declared privileged tenants and basukit parchas accordingly were issued. An appeal was preferred by the petitioner before the Collector. The Collector of the district called for a report from the Circle Officer. The Circle Officer enquired into the matter and sent his report clearly stating that it was an orchard with old fruit trees standing. He also reported that it were land grabbers who, during the period, have entered upon the land and constructed small hutments to show their possession. This is Annexure-2 dated 15.03.2000 to the writ petition. Collector then ordered the Subdivisional Officer to send a report. The Subdivisional Officer asked for a report from Circle Officer, Benipatti which is Annexure-3 dated 25.10.2002 to the writ petition. Here again, the Circle Officer reported that these persons were land grabbers. Out of the 29 persons, 13 did not in fact have any house on the land. Then he gave a list of people who had got their names entered into khatiyan. This report of the Anchal Adhikari was then forwarded to the Collector of the district by the Subdivsional Officer by his letter dated 09.06.2003. The Collector, acting on the aforesaid reports, cancelled the parchas of 13 persons whereas 4 sustained the same with regard to the rest. Learned counsel for the petitioner submits firstly that the land in question was not a homestead land as, admittedly, all the reports show that in fact it was an orchard (Bagan) and, thus, the provisions of the Act would not apply. He further submitted that the original order, as passed by the Circle Officer and, in particular, order dated 25.07.1992, as contained in Annexure-1, would show how, with a pre-determined mind having already got a report, the proceedings were conducted. It clearly shows that the petitioner was not present and other family members refused to accept the notice. Having noticed this sill the Circle Officer deemed the notices to be duly served and on that day itself passed final orders. He further points out that the proceedings were registered on 27.03.1992 and the next date was fixed on 29.07.1992 but report having been received earlier on 26.07.1992, the same was considered and it was then ordered to be placed on 25.07.1992. On 25.07.1992, orders were passed. All this clearly demonstrates that the entire proceedings were fictitious and only to aid land grabbers. On behalf of the contesting respondents, it is submitted that they were agriculture labourers of the petitioner who were permitted to use petitioner’s land. They do not dispute that it was an orchard. They submit that they have been there for over 20 years and in the proceedings, the Circle Officer rightly ordered issuance of basukit parcha to them which was wrongly interfered by the Collector in relation to some of them. They submit that they are not land grabbers as they had been there since before. Having heard the parties and considering the matter, in my 5 view, the first writ petition must succeed. Firstly, the ordersheet of the original proceedings and the manner it is drawn up would clearly indicate that it was something that was being drawn up to help someone. In such an important matter, which affects the property rights, the Circle Officer conducted himself in a most casual manner. The service report, as noted in the ordersheet itself, shows that service was not duly affected still he proceeded to finalise the proceedings on that very day. What was the nature of land, what was the nature of right of the contesting respondents, nothing was discussed. How the landlord-tenant relationship was established, how was it established that it was homestead land, nothing was discussed. Straightway, as hutments were found there, basukit purchas were ordered to be issued. That was in 1992. The petitioner filed appeal before the Collector, which was registered as Case No 81 of 1997- 98. The Collector called for a report. The Circle Officer sent his report (Annexure-2) clearly mentioning that it was an orchard and these were land grabbers. The Collector then asked for a report again from the Subdivisional Officer who got the matter reenquired by the Circle Officer, Benipatti. Circle Officer, Benipatti this time submitted his report dated 25.10.2002 which is Annexure-3. What he has stated in the report, as was forwarded to the Collector by the Subdivisional Officer, was that having received the parcha, several people have got their names entered in the khatiyan. He did not report that people had their names from before because that was not even the case of the contesting respondents. He also reported that these were set of land grabbers. On basis of these reports, the Collector, without giving any finding whether these lands were 6 homestead land or not, what was the relationship between the petitioner and the contesting respondents, the Collector affirmed the orders in so far as the persons whose names were entered in the khatiyan and rejected the rest. In my view, the Collector ought to have allowed the appeal in toto. There was no material on record brought either by way of report or by the contesting respondents to show that they were tenants of the petitioner. That is the first requisite for application of the Act. Then there has been no material on record to show that these were homestead land. To the contrary, there were materials on the record to show that this was an orchard. In my view, finding, on these two aspects, was a pre-requisite for declaration of contesting respondents as privileged tenants entitling them to basukit parcha. In absence of any material on record, there could not be any finding in that regard and in absence of such a finding not only the proceedings are unsustainable, the orders are liable to be quashed and are quashed as such. Basukit parchas issued in favour of the 29 persons that is 16 private respondents in the first writ petition and 13 petitioners of the second writ petition cannot be sustained and are quashed. The first writ petition is, accordingly, allowed. The second writ petition is dismissed. M.E.H./ (Navaniti Prasad Singh)