IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6329 of 2010 1. CHANDRA SHEKHAR PRASAD SINGH, S/O- LATE BASHISHTHA PD. SINGH. 2. NAND LAL PD. SINGH, S/O- LATE RAM NANDAN SINGH, A R/O- VILL.- SAIDPUR RAJAULI, P.S.- HAJIPUR SADAR, P.O.- RAJAULI, DISTT.- VAISHALI :--- PETITIONERS. Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR, VAISHALI AT HAJIPUR. 3. THE ANCHAL ADHIKARI, HAJIPUR. 4. MOSMAT LAKHPATI DEVI, W/O- LATE GONAUR MAHTO, 5. KISHORE MAHTO, S/O- LATE GONAUR MAHTO, BOTH RESIDENTS OF VILL.- SISSUNI, RAJAULI, AT PRESENT- SAIDPUR RAJAULI, P.S.- HAJIPUR SADAR, P.O.- RAJAULI, DISTT.- VAISHALI :--- RESPONDENTS. ----------- 3. 16.04.2010. Heard learned counsel for the petitioners and the State. 2. Petitioners are aggrieved by the order dated 12.12.1996/7.2.1997 passed by the Circle Officer, Hazipur in Basgit Purcha Case No. 8/96-97, whereunder purcha under the Privileged Persons Homestead Tenancy Act (hereinafter referred to as the “Act”) was allowed in favour of one Gonaur Mahto in respect of the lands in- question detailed in paragraph 4 of this application. They are also aggrieved by the order dated 19.2.2010 passed in Misc. Case No. 19/97- 98, Annexure-1, whereunder appeal filed against the order of the Circle Officer dated 12.12.1996/07.02.1997 has been dismissed. 3. It is submitted on behalf of the petitioners that the lands in- question is situate by the side of a road. Gonaur Mahto encroached the flank of the road in front of the aforesaid lands which was removed at the instance of the authorities whereafter Gonaur Mahto raised his hutment over the lands in-question without the consent of the petitioners. Petitioners objected to such raising of the hutment by Gonaur Mahto, whereafter the Circle Officer initiated the Privileged Persons Homestead - 2 - Tenancy Act Case No. 08/1996-97 on 27.11.1996 and from the order dated 27.11.1996 it appears that along with the application of Gonaur Mahto the report and recommendation of the Halka Karmchari/Circle Inspector/Amin was also received. It is submitted on behalf of the petitioners that without conducting any enquiry in terms of the provisions contained in Rule 5 of the Bihar Privileged Persons Homestead Tenancy Rules, 1948 (hereinafter referred to as the “Rules”) the Circle Officer passed order dated 12.12.1996/7.2.1997 granting purcha in favour of Gonaur Mahto without giving any opportunity to the petitioners to establish their case that Gonaur Mahto was earlier encroacher of the public land situate by the side of the road, after removal of the encroachment in a most unauthorized manner, he raised the hutment over the lands in-question and that Gonaur Mahto was neither privileged person as he had his house over Plot No. 240, Khata No. 16 of Village Sisawani Rajauli nor privileged tenant as he had no special contract with the petitioners’ tenant. Those facts could have been discovered by the Circle Officer provided he had undertaken an enquiry in terms of the provisions contained in Rule 5 of the Rules. The enquiry in terms of Rule 5 was not conducted the order for granting purcha was passed stating that Gonaur Mahto had less than one acre of land in the circumstances, the order dated 12.12.1996/07.02.1997 granting purcha is wholly without jurisdiction. The matter was taken in appeal by the petitioners against Gonaur Mahto who died during the pendency of the appeal, whereafter Private Respondent Nos. 4 and 5, the heirs of Gonaur Mahto were substituted in the appeal. The appellate court was requested - 3 - by the petitioners to set aside the order dated 12.12.1996/07.02.1997, as the same is violative of the provisions contained in the Act as also the Rules as neither Gonaur Mahto nor his heirs are either privileged person or tenant and rank encroacher of the land of the petitioners could not have been allowed purcha of the lands in-question. The Collector of the district also did not consider any of the aspect raised in the appeal. Perusal of the appellate order dated 19.2.2010, Annexure-1 also does not indicate that the learned Collector has considered the aspect about the violation of Rule 5 as also the case of the petitioners that Gonaur Mahto having his own house over Plot No. 240 appertaining to Khata N o. 16 of Village- Sisawani Rajauli is not a privileged person and as there is no special contract between him and the petitioners he is also not a privileged tenant and in appreciation of such fact the order dated 12.12.1996/07.02.1997 by which purcha was issued in favour of Gonaur Mahto should have been quashed. 4. Having heard counsel for the petitioners and the State, I am satisfied that neither the Collector under the Act nor the Collector of the district has considered the aforesaid aspect of the matter. In the circumstances, there is no difficulty in concluding that the two orders passed by the Collector under the Act and the Collector of the district is not in accordance with law but before holding so it is necessary to issue notice to the private respondents, which is likely to take time. In order to save time it is directed that petitioners should approach the Collector of the district and impress upon him the contentions which have been noted in this order whereafter the Collector of the district should issue notice - 4 - to the private respondents and after hearing the private respondents, the Collector of the district should confirm whether Gonaur Mahto and after his death the two private respondents are having their house over Plot No. 240 of Khata No. 16 of Village- Sisawauni Rajauli and there was special contract between Gonaur Mahto and petitioners if that be so, pass appropriate orders in accordance with law, after hearing the counsel for the petitioners and the private respondents. In this case one disturbing feature has come to my notice that along with the application of Gonaur Mahto itself the recommendation of the Halka Karmchari, Circle Inspector and the Amin was received. Such practice should be deprecated by the Collector. Learned Collector should ensure completion of the enquiry in the light of this order as early as possible, in any case within three months from the date of appearance of the petitioners before him along with a certified copy of this order. 5. The writ application is, accordingly, disposed of. P.K.P. (V.N.Sinha,J.)