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Judgment
Nobody appears on behalf of the petitioners.
Heard Mr. Jay Shankar Tiwary, counsel appearing for the respondent no. 5.
Heard Mr. Ashish Kr. Thakur, counsel appearing for the respondent nos. 1 to 4.
This writ petition has been filed for the following reliefs:
"(a) For issuance of appropriate writ(s)/order(s)/direction(s) from this Hon'ble Court for quashing the order dated 20.05.08 passed by the Deputy Commissioner, Palamu (respondent no. 2) in Basgit Appeal No. XV/30 of 2006-07 whereby and whereunder the appeal preferred on behalf of the petitioners against the order dated 28.02.05 passed by the Circle Officer, Satbarwa (respondent no. 3) in Basgit Case No. 2 of 2004-05 has been dismissed holding that in view of the fact that the respondent no. 5 is a landless tribal lady and is in possession of the land in question, the Basgit Parcha has been issued by the Circle Officer (respondent no. 3) and that the order passed by the Circle Officer can only be challenged before the learned Civil Court under the provisions of section 18 of the Bihar Privileged Persons Homestead Tenancy Act and no appeal or revision lies.
(b) For issuance of further writ(s)/order(s)/direction(s) for quashing the order dated 28.02.05 passed by the Circle Officer, Satbarwa (respondent no. 3) in Basgit Case No. 2 of 2004-05 whereby and whereunder the respondent no. 3 has been pleased to pass an order to issue Basgit Parcha in favour of the respondent no. 5 appertaining to the land of Khata No. 88, Plot No. 1401, Village Dulsulma, Anchal Satbarwa measuring an area of 0.10 Acres in the district of Palamau only on the basis of the enquiry report submitted by the respondent no. 4 over which land the petitioner no. 1 has admittedly got occupancy right being a settled raiyat and has been in possession of said land since 1932."
From the perusal of the writ petition, it appears that the petitioner no. 1 claims to have inherited the property involved in this case from one Keshar Sao who is said to have obtained the property by way of auction in a certificate case being Auction Case No. 494 of 1932 and thereafter the petitioner has been paying rent in connection with the property to the State of Bihar.
So far as the petitioner no. 2 is concerned, he claims a portion of the property by virtue of an agreement of sale dated 17.06.2004 entered into between the petitioner no. 1 and petitioner no. 2 in favour of the petitioner no. 2 on payment of consideration amount.
Further case of the petitioners is that an application was filed by the private respondent no. 5 herein for issuance of Basgit Parcha under the provisions of Bihar Privileged Persons Homestead Tenancy Act, 1947 and thereafter, the Circle Officer, by an order dated 28.02.2005 passed in Basgit Parcha Case No. 2 of 2004-05, issued Basgit Parcha in favour of the private respondent no. 5. The specific case of the petitioners is that the Basgit Parcha was issued without giving an opportunity of hearing to the petitioner no. 1. Accordingly, the petitioners preferred appeal against order dated 28.02.2005 passed by the Circle Officer which was numbered as Basgit Appeal No. XV/30 of 2006-07 before the Deputy Commissioner, Palamu, who by impugned order dated 20.05.08, dismissed the appeal by holding that the order passed by the Circle Officer can only be challenged before Civil Court under the provisions of Section 18 of the aforesaid Act and no appeal or revision lies.
From the perusal of the impugned order as contained in Annexure-6 to the writ petition, it appears that the petitioners had taken specific ground that no notice of hearing was ever served upon the petitioners and the procedure for issuance of Basgit Parcha has not been followed. It further appears from the impugned order that this aspect of the matter has not been considered by the revisional authority and the authority has held that the property involved in this case is government land and has further held that as per the provisions of Section 18, the order passed by the Circle Officer can be challenged only before the civil court and the appeal or revision is not maintainable.
Counsel for the private respondent, during the course of argument, has submitted that the procedure for issuance of Basgit Parcha has been followed in this case and therefore, there is no illegality in grant of Basgit Parcha to the private respondent and the private respondent are in physical possession of the property. He submits that the property belonged to government and accordingly, the Basgit Parcha has been rightly issued under the provisions of Bihar Privileged Persons Homestead Tenancy Act, 1947. He submits that as per Section 18 of the aforesaid Act the order passed by the Circle Officer is final and no suit shall lie in any Court to vary or set-aside such order, except on ground of fraud or want of jurisdiction.
Counsel for the respondent -State Mr. Ashish Kumar Thakur has supported the submissions made by the private respondent. The counsel for the respondent- State has also referred to the counter-affidavit filed by the State and in particular referred to para 6(i) of the said counter-affidavit, and submits that as per the records, Basgit Parcha was issued in form-G in which name of the land owner is Adali Sao. He submits that the private respondent was found in possession of the property for the last 40 years.
After hearing the counsel for the parties and after considering the materials on record, this Court finds that the petitioners are claiming title over the property and as per the counter-affidavit, the Basgit Parcha in Form- G was issued in favour of the private respondent no. 5 in which the name of land owner is Adali Sao. It also appears that the Circle Officer had issued Basgit Parcha to the private respondent in Basgit Case No. 2 of 2004-05 vide order dated 28.02.2005 against which, the petitioner filed revision before the Deputy Commissioner, Palamu which was numbered as Appeal Case No. XV/30 of 2006-07 and had raised specific plea that notice was never served upon the petitioner no. 1, who was the land owner of the property involved in this case. The entire order-sheet of the Circle Officer has been annexed by the writ petitioners as Annexure-5 to the writ petition, wherein from the perusal of the order dated 08.01.2005, it appears that notice was directed to be issued to the land owner and also an order was passed for issuance of public notice. From the next order i.e. order dated 28.02.2005, it appears that the publication of general notice has been recorded but so far as service of notice to the land owner is concerned, there is no such service report and there is no such recording indicating the service of notice.
It was a specific case of the petitioners before the revisional authority that petitioner no. 1 was never given an opportunity of hearing by the Circle Officer prior to passing of the order in the Basgit case.
For better appreciation of the case at hand, Section 18 and 21 of the aforesaid Act of 1947 is quoted here-in-below for ready reference:
"18. Orders under this Act to be final.- The orders passed under this Act shall be final, Subject to the provisions of section 21, all orders passed by the Collector in any proceeding under this Act shall be final, and no suit shall lie in any Civil Court to vary or set aside any such order except on the ground of fraud or want of jurisdiction.
Power of the Collector of the District to call for and examine records.- Notwithstanding anything to the contrary contained in any judgment, decree or order of any Court or authority; the Collector of the district may on his own motion or on the application of any party, or on reference being made by any subordinate authority, call for and examine record of any case decided or proceeding taken by the Collector under the Act for satisfying himself as to the regularity of the proceeding or to the correctness, legality or propriety of an order passed by the Collector under the Act in the case or proceeding, and may after, allowing the parties concerned opportunity of being heard, direct that the case or the proceeding be re-opened and disposed of afresh in accordance with the provisions of this Act."
This Court finds that as per the provisions of Section 18 of the aforesaid Act, the order passed under the Act is final, but it is subject to provisions of Section 21. As per the provisions of Section 21, the Collector of the district has been empowered to call for and examine the records on his own motion or on an application by any party for the purposes of satisfying himself as to the regularity to the proceeding or to the correctness or illegality or propriety of the order passed under the Act and has power to direct the case for reopening or disposal afresh after granting an opportunity of being heard.
This Court finds that non-service of notice and not granting opportunity of hearing to the petitioner no. 1 prior to issuance of Basgit Parcha to the private respondent was required to be considered by the authority under the provisions of Section 21 of the aforesaid Act of 1947 and this aspect of the matter has not been considered.
From the records of this case, it appears that the petitioner no. 1 who claims to be the owner of the property was not granted any opportunity of hearing prior to issuance of Basgit Parcha in favour of the private respondent. This aspect of the matter has not been considered by the revisional authority while passing the impugned order and the revisional authority has on the one hand held that the land belongs to the Government and on the other hand, held that the petition itself was not maintainable. This Court is of the considered view that the revisional authority ought to have remanded the matter to the Circle Officer for fresh consideration after giving an opportunity of hearing to the petitioner no. 1 under the facts and circumstances of this case. Accordingly impugned order dated 20.05.2008 passed by the Deputy Commissioner, Palamau in Basgit Appeal No. XV/30 of 2006-07 is hereby set-aside and the matter is remitted back to the Circle Officer, Satbarwa, district- Palamu for passing fresh order after giving an opportunity of hearing to the petitioner no. 1 and the private respondent no. 5.
The Circle Officer is directed to pass a fresh order after giving an opportunity of hearing to the petitioner no.1 as well as the private respondent no. 5 within a period of three months from the date of receipt of a copy of this order.
It is made clear that this Court has not entered into the merits of the rival claim of the petitioners or the private respondent.