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2018 Supreme(Jhk) 153
IN THE HIGH COURT OF JHARKHAND AT RANCHI
ANUBHA RAWAT CHOUDHARY, J.
Nita Verma & Ors. – Petitioners
Versus
The State of Jharkhand & Ors. – Respondents
W.P.(C). No.4599 of 2004
Decided On : 20-02-2018
For the Petitioners:Mr. Binod Kr. Dubey, Advocate, Mr. Nawin Kumar, Advocate
For the Respondents:Mr. Vijay Kr. Sharma, Advocate
The main legal point established in the judgment is the requirement for strict compliance with the provisions of the Bihar Privilege Persons Homestead Tenancy Act, 1947 and the Bihar Privilege Persons Homestead Tenancy Rules, 1948, particularly in conducting local inquiries and passing orders.
Headnote:
Bihar Privilege Persons Homestead Tenancy Act - Quashing of Parcha - Section 5 of Bihar Privilege Persons Homestead Tenancy Act, 1947 - Rule 5 of Bihar Privilege Persons Homestead Tenancy Rules, 1948 - Summary of Acts and Sections: The court discussed the provisions of Section 2(i) and Section 2(j) of the Bihar Privilege Persons Homestead Tenancy Act, 1947, and Rule 5 of the Bihar Privilege Persons Homestead Tenancy Rules, 1948. The court highlighted the definition of 'privileged person' and 'privileged tenant' under the Act, as well as the procedure for local inquiry and the Collector's powers under Rule 5.
Fact of the Case:
The writ petitioner filed a petition to quash the parcha issued in favor of the respondent no.5 under Section 5 of Bihar Privilege Persons Homestead Tenancy Act, 1947. The petitioner argued that the order was passed without considering their objections and in disregard of the Act and rules.
Finding of the Court:
The court found that the order and parcha were passed in total disregard of the mandatory provisions of the Act and the rules. The court set aside the impugned order and parcha, remitting the matter back to the Circle Officer for a fresh order in accordance with the law.
Issues: The issues revolved around the jurisdiction of the Halka karmchari to conduct the inquiry, the failure to consider the petitioner's objections, and the lack of compliance with the provisions of the Act and rules.
Ratio Decidendi: The court emphasized the need for strict compliance with the rules and provisions of the Act, particularly in conducting local inquiries and recording proper findings. The court also highlighted the finality of the Collector's order and the protection of privileged tenants from litigation.
Final Decision: The impugned order and parcha were set aside, and the matter was remitted back to the Circle Officer for a fresh order within three months.
Heard Mr. B.K. Dubey, counsel appearing on behalf of the petitioner.
2. Heard Mr. Vijay Kr. Sharma, counsel appears on behalf of the respondent no.5.
3. No body appears on behalf of the respondent-State.
4. This writ petition has been filed by the writ petitioner for quashing the parcha issued in favour of the respondent no.5 as contained in Annexure-6 to the writ petition pursuant to order signed on 02.04.2004 (although the date of the order a per left column of the order sheet has been mention as 10.12.2003/2.4.2003) (Annexure-5) passed by the Circle Officer, Chatra which in turn has been passed on the basis of report of Halka karmchari pursuant to petition filed by the respondent no.5 as contained in Annexure-4 to the writ petition dated 26.8.2003.
5. Counsel for the petitioner on facts submits as follows:-
(a) An application dated 26.08.2003 as contained in Annexure-4 was filed by the respondent no.5 before the Circle Officer, Chatra. He submits that although the provision of law is not mentioned in the said application but the same is an application under Section 5 of Bihar Privilege Persons Homestead Tenancy Act, 1947. He submits that from the perusal of the application it appears that the basic ingredient of Section 2 (i) and Section 2 (j) read with Section 5 of the said Act is not satisfied.
(b) The counsel for the petitioner submits that application contained in Annexure-4 dated 26.08.2003 was processed by the Circle Officer, Chatra and an enquiry was conducted by the Halka karmchari prior to issuance of notice. It is submitted that the Halka karmchari has no jurisdiction to conduct an enquiry under the provisions of the aforesaid Act. He submits that no notice under ‘Form-F’ as prescribed under the rules have been issued to the petitioner.
(c) He further submits that the petitioner had appeared pursuant to the notice issued vide order dated 24.09.2003 and filed their objection but by the impugned order signed on 02.04.2004, the relief was granted to the respondent no.5 on the basis of the report of Halka karmchari whose enquiry is wholly without jurisdiction.
(d) He further submits that while passing the impugned order the objection filed by the petitioner has not been taken into consideration.
(e) Counsel for the petitioner also submits that the basic ingredients for issuance of “parcha” including the fact as to whether the applicant was holding land less than one acre or not has also not been considered while passing the impugned order and accordingly no finding has been recorded in this regard in order signed on 02.04.2004 passed by the respondent no.4 which is the basis for issuance of “parcha” as contained in Annexure-6 to the writ petition.
(f) Counsel for the petitioner while referring to Annexure-6 of the writ petition submits that in column no. 10 it has been mentioned that the respondent no. 5 is land less although there is no such finding recorded in the order signed on 02.04.2004 on the basis of which Annexure-6 has been finally issued.
(g) Counsel for the petitioners submits that Bihar Privileged Persons Homestead Tenancy Rules, 1948 particularly Rule 5 of the rules framed under the aforesaid Act was totally ignored while passing the impugned order and accordingly the impugned order signed on 02.04.2004 and “parcha” as contained in Annexure-5 and 6 respectively are fit to be set-aside.
(h) Counsel for the petitioner has also relied upon the judgment passed by this court in Judgment reported in 1990 PLJR 35 (Patna), 2006 (1) PLJR 614 (Patna), 2006 (2) PLJR 443 (Patna) and 1978 BBCJ 623 (Patna) and has submitted that the impugned order and “parcha” has been passed in total disregard to the provisions of the aforesaid Act and the rules and in total disregards to the law laid down in the aforesaid Judgments, accordingly the same are fit to be set-aside.
6. Counsel for the respondent on the other side submits that from the perusal of the order dated 24.09.2003, it appears that the Halka karmchari had only scruti
