Jharkhand High Court
Basanti Devi vs State Of Jharkhand & Ors. on 19 September, 2012
Author: P.P.Bhatt
Bench: P.P.Bhatt
IN THE HIGH COURT OF JHARKHAND,RANCHI.
W.P(C) No. 4935 of 2006
Basanti Devi ................................ Petitioner
Versus
The State of Jharkhand and ors. . . .............................Respondents
CORAM :- HON'BLE MR. JUSTICE P.P.BHATT
For the Petitioner : Mr. R.A. Choubey
For the State-Respondents :- J.C to S.C(L & C)
5/19.9.2012The present petitioner by way of filing this writ petition under Article 227 of the Constitution of India has prayed for quashing of the order dated 13.1.2006 passed by the Deputy Commissioner(Respondent No.2) in Case no. 57 of 2004 whereby the appeal filed by the petitioner against the order dated 28.6.2003 passed by the Respondents No. 4/5 in "
Basgit Parcha" Case No. 10/2002-03/2/03-04 has been rejected. It is further prayed for quashing the order dated 28.6.2003 including the entire proceeding of "Basgit Parcha" Case no. 10/2002-03/2/03-04 passed by the respondents no. 4/5 whereby the said respondents have issued "Basgit Parcha" with regard to Khata No. 27 Plot No. 9177 measuring area 03 decimal.
The learned counsel appearing for the petitioner by referring the impugned order as well as other materials annexed to this petition pointed out that the land in question is a proposed notified area and therefore, under section 3 of the Bihar Privileged Persons Homestead Tenancy Manual Basgit Parcha cannot be allowed in respect of the lands which are vested in the Government or a local authority as provided section 3(a) as well as (b) of the Bihar Privileged Persons Homestead Tenancy Manual. The learned counsel for petitioner by referring Annexure-17 i.e. report submitted by the Additional Collector dated 4.8.2005 as well as Annexure-8 i.e report submitted by the SDO Barhi, Hazaribagh addressed to Deputy Commissioner, Hazaribagh on 5.3.2003 pointed out that Additional Collector as well as SDO have in clear terms submitted the report to the Deputy Commissioner, Hazaribagh that Respondent No.10 is not eligible for the purpose of grant of Basgit Parcha and the said Parcha is required to be cancelled. However, the learned Deputy Commissioner without taking into consideration the recommendation/opinion given in the said report submitted by the SDO as well as Additional Collector Hazaribagh. The learned counsel for the petitioner by referring the order passed in W.P(C) No. 5717 of 2004 (Annexure15) pointed out that the petitioner had also approached this court for quashing the Basgit Parcha as also the order by which the Circle Officer, Barhi Anchal has issued Basgit Parcha in favour of the respondent no. 10 and while disposing of the said writ petition this court by order dated
2.11.2004 directed the Deputy Commissioner Hazaribagh to consider the representation of the petitioner and pass a reasoned order. However, in pursuance to the said order, the learned Deputy Commissioner has not properly considered the provision contained in Section 3 of the Bihar Privileged Persons Homestead Tenancy Manual as well as contain raised with regard to eligibility of the respondent No. 10 in the said writ petition. Therefore, the order passed by the Deputy Commissioner may be quashed/ set aside.
As against that, the learned counsel appearing for the Respondent-State Government by referring the counter affidavit filed by the Circle Officer Barhi pointed out that the issue raised by the present petitioner in this petition and the allegation made against the respondent no. 10 are the disputed question of fact and it cannot be decided in a writ jurisdiction. It is further submitted that the learned Deputy Commissioner Hazaribagh has considered the various issues which have been raised by the present petitioner while passing a reasoned order as directed by this Court on earlier occasion .
The learned counsel appearing for the respondent No.10 did not remain present though sufficient opportunity has been given to him.
Considering the aforesaid rival submissions and on perusal of the impugned order it appears that the learned Deputy Commissioner, Hazaribagh has passed an order after issuance of direction by this Court in W.P(C) No. 5717 of 2004.On perusal of the said order it appears that the learned Deputy Commissioner ought to have considered the basic question with regard to eligibility of allotment of Basgit Parcha as provided under section 3 of the Bihar Privileged Persons Homestead Tenancy Manual. For this purpose section of the Bihar Privileged Persons Homestead Tenancy Manual is required to be referred which is reproduced as under :-
3. Act not to apply to certain lands, buildings or areas-This Act shall not apply to-
(a) any land or building, residential or otherwise-
(i) appertaining to an industrial establishment;
(ii)vested in the Government or a local authority; and
(b)any land situated within-
(i) any area which has been, or may hereafter be, constituted a municipality or notified area under the provisions of the Bihar and Orissa Municipal Act, 1922 ( B & O .Act VII of 1922) or a Union Committee constituted under section 38 of the Bihar and Orissa Local Self-
Government Act of 1985 (Bengal Act III of 1885) [(ii)vested in the Government except homestead deemed to have been acquired by tth State Government under sub- Section(2) of Section 17A, or a local authority;
(iii) any other area which is declared by the State Government by notification issued in this behalf to be a place of business or fair;
[Provided that if any area in which a privileged person or a privileged tenant has acquired any right in his homestead under this Act, is subsequently converted into an area mentioned in sub-clause (1) of clause(b), the privileged person or the privileged tenant, as the case may be, shall not be divested or deprived of his right in the homestead] The question with regard to issuance of Basgit Parcha in favour of the respondent no. 10 is required to be examined and for that purpose the fact figging inquiry is required to be conducted by the competent authority. In the present case it appears that the learned Addl. Collector as well as SDO have submitted their report and expressed their opinion vide Annexure-17 and Annexure 8. However, it appears that the said report/ opinion has not been taken into account/ consideration while passing the impugned order.
Under the circumstances, the allegation made by the present petitioner in Paragraph -22 of the petition which are unanswered in the counter affidavit filed by the Circle Officer needs to be examined by the competent authority by conducting the fact finding inquiry. This exercise is required to be completed within stipulated time so that the grievance of the petitioner can be redressed within a reasonable time.
Hence the impugned order 13.1.2006 passed by the Deputy Commissioner, Hazaribagh(Respondent No.2) in Case no. 57 of 2004 is quashed/ set aside. The learned Deputy Commissioner, Hazaribagh shall pass a de novo order after affording an opportunity of being heard to the present petitioner as well as the respondents including respondent no.10 and the allegation made by the present petitioner in paragraph -22 of the writ petition be considered in light of provision contained in Section 3 of Bihar Privileged Persons Homestead Tenancy Manual. The learned Deputy Commissioner, Hazaribagh shall decide the appeal de novo within a period of three months from the date of the receipt of a copy of this order. The petitioner shall produce the copy of the petition along with documents annexed to it. The learned Deputy Commissioner shall also consider the same before passing a final order.
(P.P.Bhatt,J) SD