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2007 Supreme(Pat) 922
PATNA HIGH COURT
Aftab Alam, J.
Ramzan Ali Ansari
Versus
State Of Bihar
Criminal Writ Jurisdiction Case No. 1691 of 1988 ;
Decided On : MAY 9, 2007
The compliance with the mandatory provisions of law, specifically Rule 5 of the Bihar Privileged Persons Homestead Tenancy Rules, is essential for the legality and tenability of the final order.
Headnote:
Bihar Privileged Persons Homestead Tenancy Act - Land Dispute - Rule 5(1) of the Bihar Privileged Persons Homestead Tenancy Rules - The court found that the final order granting Parcha to Gurucharan Ram was passed without following the mandatory provisions of Rule 5(1) of the Bihar Privileged Persons Homestead Tenancy Rules, rendering the grant of Parcha illegal.
Fact of the Case:
The writ petition arises from a proceeding under the Bihar Privileged Persons Homestead Tenancy Act, where the petitioners sought to challenge an order directing for the grant of Parcha to Gurucharan Ram for a disputed land.
Finding of the Court:
The court found that the proceeding was held in complete disregard of the mandatory provisions of law, specifically Rule 5 of the Bihar Privileged Persons Homestead Tenancy Rules, and that the impugned order and the Parcha granted on that basis cannot be sustained.
Issues: The main issue was the non-compliance with the mandatory provisions of Rule 5 of the Bihar Privileged Persons Homestead Tenancy Rules in the proceeding under the Bihar Privileged Persons Homestead Tenancy Act.
Ratio Decidendi: The court held that the compliance with the provisions of Rule 5 is mandatory and any omission to follow the rule would render the final order illegal and untenable.
Final Decision: The writ petition was allowed, and the impugned order and the Parcha granted to Gurucharan Ram were quashed.
Aftab Alam, J.
1. Heard Mr. Alok Kumar Sinha, counsel for the petitioners. No one appears on behalf of respondent no. 3(a).
2. This writ petition arises from a proceeding under the Bihar Privileged Persons Homestead Tenancy Act and the petitioners who are the land-holders seek to challenge the order, dated 5/11.1.1988 passed by the Circle Officer, Dehri in P.P.C. Case No. 3 of 1987-88 directing for the grant of Parcha to Gurucharan Ram who was originally impleaded as respondent no. 3, Gurucharan Ram died during the pendency of the writ petition and was substituted by his heirs and legal representatives.
3. The dispute relates to five decimals out of plot no. 320 with a total area of 17 decimals under khata no. 58, situate in village Manjhiyaon, P.S. Dehri (Dari Hat) in the district of Rohtas. A copy of the order sheet of the proceeding is enclosed as Annexure 3 from which it appears that Gurucharan Ram made an application before the Circle Officer claiming that he was living on the disputed land after constructing a house and prayed for grant of Parcha in respect of the land in question. The Circle Officer noted the contents of the petition in his order, dated 28.8.1987 and directed for issuance of a notice to petitioner no. 1 as also a public notice.
4. On 17.10.1987 a certificate was produced from the Mukhiya of village Chalbila Parhar Panchayat in which it was stated that Gurucharan Ram was a resident of village Manjhiyaon and he was living on the disputed land for a long time. On that date the Circle Officer fixed 5.11.1987 for local inspection. The next order, dated 5/10.11.1987 indicates that he was unable to make the spot inspection on the fixed date and the next date for spot inspection was fixed on 25.11.1987. The next and the final order is, dated 5/11.1.1988. This indicates that no inspection could be held on 25.11.1987 either and the spot inspection was held on 5.1.1988. At the time of inspection the reports given by the Mukhiya, Karmchari and Circle Inspector were found to be correct. It was, accordingly, directed to issue Parcha to Gurucharan Ram on the basis of the reports of the Karmchari and the Circle Inspector. In pursuance of the order, the Parcha was issued in favour of Gurucharan Ram a copy of which is at Annexure 4.
5. The order sheet clearly indicates that the proceeding was held in complete disregard of the mandatory provisions of law. Rule 5 of the Bihar Privileged Persons Homestead Tenancy Rules requires that a notice in Form F must be given to the land holder indicating the date on which the local enquiry would be made. The rule further stipulates that the enquiring officer would make a record of the evidences produced before him. On submission of the report the Collector under the Act is required to pass an order after hearing the parties on all points arising out of the application.
6. By a number of decisions it is now well settled that the compliance with the provisions of rule 5 is mandatory and any omission to follow the rule would render the final order illegal and untenable. For the benefit of the revenue authority the provisions of rule 5 are quoted below:
"5. (1) The Collector shall either himself make local inquiry or have such inquiry made by any responsible officer not below the rank of a Circle Inspector or Welfare Inspector and satisfy himself as to the correctness or otherwise of the contents of such applications.
(2) The enquiring officer shall issue a notice in Form F to all the interested parties intimating the date on which the inquiry shall be made and directing parties to produce all the evidence in their possession in support of or against the application.
(3) The enquiring officer shall make a record of the evidence produced before him and, if he is not the Collector, submit his report to the Collector.
(4) The Collector shall after hearing the parties on all points arising out of the application pass such order as to him seems to be just and proper.
(5) The Collector
