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2007 Supreme(Pat) 1380
PATNA HIGH COURT
J.N.Bhatt, J.
Baij Nath Upadhya
Versus
State Of Bihar
Criminal Writ Jurisdiction Case No. 7763 of 1988 ;
Decided On : AUGUST 20, 2007
Headnote:Bihar Privileged Persons Homestead Tenancy Act, 1947-Section 2(i) read with Rule 5 of Bihar Privileged Persons Homestead Tenancy Rules, 1948-lssuance of Basgit Parcha-Inquiry has to be conducted by Collector or by any authority not below the rank of Circle Inspector-Karamchari is not competent to do so under law-There ought to be a finding that person claiming to be privileged person is not a proprietor or tenure-holder and besides his homestead, he does not hold more than one acre of land-Impugned order required to be quashed on both counts. (Paras 12 and 13)
Bihar Tenancy Act, 1885-Section 87-Abandonment of holding-On abandonment of holding, landlord is entitled to resume khas possession-Proceedings u/s 87 are not sine qua non to taking of possession-Ordinarily, landlord should proceed u/s 87, but absence of such proceedings is not an evidence against abandonment-To establish a case of abandonment, a landlord has to prove affirmatively voluntary abandonment by a raiyat of his residence without notice to his landlords, failure on his part to arrange for payment of rent as it falls due, and ceasing to cultivate the holding-Provisions of Section 87 are not exhaustive-They are enumerative. (Para 15)
1978 BBCJ 623 : 1978 BLJ 217-Relied.
J.N.Bhatt, J.
1. The challenge in this writ application under Articles 226 and 227 of the Constitution of India, is against the order of the Anchaladhikari, dated 20.6.1988 (Annexure-1) directing for initiation of proceedings under Section 87(2) of the Bihar Tenancy Act, 1885 (Act 8 of 1885) ("B.T. Act") in respect of 12 decimals of land bearing plot no. 2705/3717, khata no. 747, and also for issuance of a privileged persons homestead raiyati parcha to respondent no. 3 in respect of 3 decimals of land of the said plots out of 15 decimals. A further prayer has been made for cancellation of parcha (Annexure 2).
2. The following facts are virtually no longer in dispute:
(i) the petitioners claimed issuance of parcha (certificate) alleging that he is the purchaser of the disputed property. Therefore, he initiated proceedings, in respect of the disputed land which was opposed by respondent no. 3. The respondent-State claimed that the disputed land belongs to the State of Bihar as the original owner has abandoned the disputed land after vesting of Zamindari and, therefore, it stood vested with the State of Bihar and, thus, the land in question has been a parti piece of the land (uncultivated land);
(ii) the respondent no. 3 was the resident of village Ghaghar and he had two brothers who separated and entire house in village Ghaghar came to the share of his father and brothers and he left the village and came to village Saraiya about 25 years before and began to live with his wife and children in a portion of the disputed land measuring about 3 decimals after constructing a small hut and for his livelihood he was doing tea selling work;
(iii) the respondent no. 3 having no house in village Saraiya or at his village house, had filed an application for grant of parcha under the provisions of the Bihar Privileged Persons Homestead Tenancy Act, 1947 (Bihar Act IV of 1948) ("Act of 1947") before the Anchaladhikari, Barahara;
(iv) the application of respondent no. 3 was sent for inquiry and the Karamchari recommended for grant of parcha in the name of respondent no. 3 in respect of 3 decimal out of the disputed land of the said plot;
(v) in the meantime, the petitioners had filed a petition for mutation of their names on the basis of the sale deed alleged to have been executed by Tarkeshwar Sahu son of Lakshmi Sah of village Saraiya;
(vi) as the respondent no. 3 alleged that the said sale deed was forged and fabricated and was created by setting up fictitious persons, the petitioners were directed by the Circle Officer, by order, dated 7.9.1984, to produce the vendor of the petitioner;
(vii) after local investigation, it was found that the alleged vendor of the petitioners is a fictitious person and is not the real owner and the vendor never sold the land and the sale deed was not reliable. That is how, the petitioners lost and respondent no. 3 succeeded;
(viii) mutation of the name of the petitioners came to be rejected and parcha under the privileged persons came to be granted in the name of respondent no. 3 in case no. 2 of 198687, with respect to three decimals of land out of plot no. 2705/3717 and the rent receipts were, accordingly, granted to respondent no. 3 and the rent was realised with effect from 1982 to 1989 and the remaining 12 decimals of land of the said plot remained in the name of the State of Bihar.
3. The learned counsel for the parties are heard. Factual profile is examined. The impugned orders are evaluated. The relevant provisions of law are also considered.
4. The Act of 1947 aims at to make better provisions on certain subjects relating to the Law of Landlord and Tenant in respect of Homestead held by certain classes of persons in Rural Areas of the State of Bihar. Therefore, this Act is designed to provide certain provisions on certain subjects relating to the Law of Landlord and Tenant in respect of Homestead held by certain classes of persons in Rural Areas of the State of Bihar.
5. It appears from the a
