IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10048 of 2007 RAM KAWAL GOND, Son of Deo Kishun Gond Resident of Village – Dhankadha, PO Dhawdar, PS Sasaram, District Rohtas, Sasaram ……. Petitioner Versus 1. THE STATE OF BIHAR 2. The Additional Collector, Rohtas, Sasaram 3. The LRDC, Sasaram, Rohtas 4. The SDO, Sasaram. Rohtas 5. The Anchaladhikari, Anchal Sasaram, PO Sasaram, PS Sasaram, District Rohtas 6. Sheo Nath Kumar Prajapati, S/o Late Panchan Kumar 7. Yogeshwar Kumhar, S/o Late Roopchand Kumhar 8. Shree Shankar Kumhar, Son of Late Sohar Kumhar -All residents of vill – Kanchanpur, PO Kanchanpur, PS Sasaram, District Rohtas …….. ……… Respondents ----------- 02- 17.02.2009 Heard Mr.Surendra Prasad Singh for the petitioner, and Mr. Sanjay Kumar No.I, learned Govt. Pleader no.14 for respondent nos. 1 to 5. We have not felt the necessity of issuing notices to respondent nos. 6 to 8 in view of the nature of the order that I am going to pass. This writ petition is directed against the order dated 10.4.2007 (Annexure 2), passed by the learned Additional Collector, Rohtas at Sasaram, in Misc. Appeal No.4/2006-07 (Shiv Nath Kumar Prajapati vs. Ram Kawal Gond), whereby he has allowed the appeal preferred by respondent nos.6 to 8 herein, and has recalled the settlement of the lands in question in favour of the petitioner. It is with respect to settlement of the following lands belonging to the State of Bihar:- Mouza Thana No. Khata Khesra Rakwa Kanchanpur 235 236 229 0.68 235 2. A brief resume of facts essential for the disposal of the writ petition may be indicated. The petitioner filed an application - 2 - before respondent no.5, for settlement of the aforesaid land on the ground that he is a landless person, and is a member of the Extremely Backward Caste. The Halka Karmachari conducted a local inspection and submitted his report. Respondent no.3 recommended the petitioner’s case for settlement of 68 decimals of land in his favour, was also recommended by respondent no.3, and was finally approved by respondent no.4. Respondent nos. 6 to 8 filed appeal before respondent no.2, which has been allowed by the impugned order, and the order for settlement in favour of the petitioner has been cancelled. It has in substance been held that the entire proceedings before the authorities were an act of fraud and collusion between the petitioner and the authorities. 3. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the learned Anchal Adhikari had issued the final order of settlement on 16.1.2004 (Annexure 1), and the appeal was filed in 2006. It was, therefore, hit by delay. He next submits that the revision was preferred in terms of Section 21 of the Bihar Privileged Persons Homestead Tenancy Act 1947 (hereinafter referred to as `the Act’), which can be disposed of only by the Collector of the district, whereas the impugned order has been passed by the learned Additional Collector. He relies on the judgment of a learned Single Judge of this Court in the case of Chandreshwar Singh vs. State of Bihar [2008 (4) PLJR 138] . He lastly submits that, in view of the indigent condition of the petitioner, minor irregularities in the process of settlement may be overlooked. - 3 - 4. Learned Government Pleader has supported the impugned order. He has pointed out various irregularities in the proceedings for settlement which fully establishes fraud and collusion. He also submits that the question of delay was not raised before the learned appellate authority. He next submits that, if the petitioner’s case is that the settlement has been taken under the Act, then the same is hit by the bar engrafted in section 3 of the Act which prohibits settlement of government lands. Relying on the judgment of this Court in the case of Bikrama Thakur v. State of Bihar [2004 (2) PLJR 265, Para 11], he further submits that this Court may not set aside an order on the ground of minor procedural irregularity, but is correct on merits, and will result in revival of an illegal order. He lastly submits that jurisdiction of the Collector or the Additional Collector to pass the order is a minor issue in the present case, and the primary issue is the validity or otherwise of the order of settlement. He relies on the decision of this Court in the case of Rajendra Sah v. State of Bihar [2006 (2) PLJR 443] (paras. 15-16). 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. I would first of all like to deal with the question relating to jurisdiction of the learned Additional Collector to pass the impugned order. The materials on record nowhere indicate that the impugned settlement was made, or the impugned order was passed, under the provisions of the Act. Therefore, the question whether or not the Collector of the district alone had the jurisdiction to deal with the revision application in terms - 4 - of Section 21 of the Act becomes wholly irrelevant, because neither the settlement had taken place thereunder nor the revision application was filed therein. Before I proceed further, I must clarify that respondent nos. 6 to 8 had moved the learned Additional Collector by preferring appeal and the impugned order also describes the same as appeal. The expression `revision’ has occurred because the learned counsel for the parties had advanced this part of their submission during the course of their submissions before us on a plain reading of Section 21 of the Act which, if invoked before the learned authority below, would give rise to a revision application. Learned counsel for the petitioner has also produced before me a plain copy of the memo of appeal which also does not create any impression at all that the provisions of Section 21 of the Act was invoked. This, therefore, disposes of the submission on behalf of learned counsel for the petitioner that the learned Collector of the district alone had the jurisdiction to dispose of the matter. 5.1) It equally disposes of the objection raised by learned counsel for the petitioner that the proceedings before the learned Additional Collector were hit by delay. Once it is held that the settlement or the proceedings were not under the Act, no prescribed period of limitation applies in the present case. In so far as the question of lapse of time is concerned, it appears that respondent nos. 6 to 8 were not parties to the proceedings before respondent nos. 3 to 5. He may not, therefore, have been aware of the settlement in favour of the petitioner. In any case, the final order of settlement was issued - 5 - by respondent no.5 on 16.1.2004, and the appeal was filed in the beginning of 2006. Therefore, the delay is not enormous, nor is it unexplained. In other words, question of wilful delay does not arise in the present case. 5.2) It equally disposes of the objection raised by learned government counsel that, in view of the prohibition engrafted in section 3 of the Act, government lands cannot be settled in favour of individuals under the Act. In view of the discussion hereinabove that the proceedings were not under the Act, the bar of Section 3 is not applicable to the present case. The objection is overruled. 6. Learned government counsel is right in his submission that the proceeding before respondent nos. 3 to 5 was overtaken by fraud and collusion. A few examples would show that the conclusion is irresistible. The petitioner’s application states that he is a resident of village Dhankadha, whereas the land in question is in Kanchanpur. This on the face of it causes suspicion. Furthermore, the materials on record create a clear impression that the petitioner had applied for, and the settlement was made, for 68 decimals of land, whereas it is manifest from a plain reading of the impugned order that 43 decimals out of the said 68 decimals had already been utilized for creation of National Highway No. II Bypass way back in 2001. Apart from the position that portion of a national highway cannot be settled in favour of an individual, it also shows negligence and non-application of the mind. A photocopy of certified copy of the public notice is at page 15 of the paper book wherein it is stated that interested persons can - 6 - submit their objections upto 20.9.2003. On the other hand, the order dated 5.10.2003 at page 9 of the paper book has been passed by respondent no.5, directing issuance of public notice. It is thus evident that the public notice could not have given 20.9.2003 as the last date for submission of objections in a situation where the order for issuance of public notice was passed on a later date, i.e. 5.10.2003. There are a few orders on record in this connection which are without any date, similarly unexplained, and clearly point towards haste, fraud and collusion. I, therefore, entirely agree with the findings recorded in the impugned order that the entire proceedings for settlement before respondent nos. 3 to 5 were acts of fraud and collusion between the petitioner and the authorities. It is for this reason that the learned appellate authority has directed for action against respondent no.5. Let the proposed action be initiated and carried to its logical conclusion. 7. In view of the foregoing discussion, I do not feel the necessity of discussing the judgments relied upon by learned counsel for the parties, inter alia, for the reason that the ratio of these judgments are perhaps not attracted in the present case. In any view of the matter, the matter can be disposed of without discussing those judgments. 8. Learned counsel for the petitioner submits that the impugned order concludes with a direction to the authorities below him to consider the case of respondent nos. 6 to 8 for settlement of the land in question. He, therefore, submits that his case should also be simultaneously considered. In so far as the petitioner’s claim is - 7 - concerned, law is well settled that the discretionary, prerogative writ jurisdiction is never exercised in favour of persons who have no respect for law and the established procedure. It is, therefore, not possible for this Court to direct consideration of the petitioner’s case. On the other hand, in so far as the case of respondent nos. 6 to 8 is concerned, dismissal of this writ petition should not be taken to be an expression of the views of this Court on the merits of the claim of respondent nos. 6 to 8. We have not considered their case at all. This Court would only like to sound a note of caution that the concluding portion of the impugned order should not be taken to be a direction to the authorities below him to order for settlement in favour of respondent nos. 6 to 8. It can at best be taken to be an observation to consider their case on merits, in accordance with law and the established procedure. 9. In the result, the writ petition is dismissed. ( S K Katriar ) mrl