Patna High Court
Latif Mian Ors. vs The State Of Bihar Ors. on 8 July, 1998
Equivalent citations: 1998(3)BLJR1623
Author: B.P. Singh
Bench: B.P. Singh
ORDER
1. This appeal has been preferred by the appellants against the judgment and order of the learned Single Judge of this Court dated 13.1.1989 passed in C.W.J.C. No. 2612/82.
2. It was reported to this Court that appellant No. l. Latif. Mian, is dead By order dated 5.1.1998 we had granted time to the counsel for the appellants to file a substitution petition but the same has not been filed In this view of the matter the appeal of appellant No. l, Latif Mian, abates.
3. The facts of the case are that the appellants herein were granted Parchas under the Bihar Privileged Persons Homestead Tenancy Act, 1947 (in short 'the Act') by the Anchal Adhikari. Appellant No. 1was granted Parcha in respect of 9 decimals of land appertaining to Kheshra No. 20 in Case No. 531 of 1969-70. Similarly appellant No. 2 was granted a Parcha in respect of 10 decimals of land appertaining to Kheshra No. 18 in Case No. 530 of 1969-70. Appellant No. 3 was similarly granted a Parcha in respect of 5 decimals of land appertaining to Kheshra No. 25 in Case No. 532 of 1969-70 The case of the appellants is that they discovered that the Parchas had been granted to them in respect of an area of land less than the land possessed by them and. therefore, on 5.10.1970 they filed a petition before the Circle Officer. Appellant No. 1 claimed 29 decimals of land, appellant No. 2, 24 decimals of land and appellant No. 3, 28 decimals of land. By order dated 7.9,1971 (Annexure 1). the Circle Officer held on the basis of the report received by him from the Anchal Amin and Circle Inspector that appellants were really in possession of a larger area as claimed by them. He, therefore, issued fresh Parchas for a larger area claimed by them and also fixed the rent accordingly. According to the appellants, they had been dispossessed by the opposite party which led them to file a petition before the Collector of the District in Case No. 35 of 1976-77 stating that their possession be restored. The Collector by his order dated 31.5.1979 remanded the case to the Anchal Adhikari, who was the competent authority and a Collector under the Act for appropriate order.
4. On 7.3,1980 the Anchal Adhikari passed the impugned order (Annexure-6) holding that in reality the appellants were In possession of the smaller area in respect of which Parchas had been issued to them originally He did not find any material to Justify the ground for issuance of Parchas in their favour subsequently for larger area, as claimed by them, He found that the grant of Parchas in favour of the appellants for a larger area was not in accordance with law and, therefore, he confined his order to the area which was originally granted to the appellants, namely, 9 decimals, 10 decimals and 5 decimals in Case Nos. 531, 530 and 532 of 1969-70.
5. The appellants were aggrieved by the order of the Anchal Adhikari (Annexure 6) dated 7.3.1980 and filed a writ petition before this Court which was disposed of by the judgment and order dated 22.9.1987. In that writ petition they had impugned the order (Annexure-6) dated 7.3.1980 and it was submitted on behalf of the petitioners that the impugned order was wholly illegal and without jurisdiction inasmuch as the aforesaid respondent before passing the order dated 7.3.1980 did not give any opportunity of hearing to the petitioners. The order was also impugned on the ground that the Circle Officer did not have any power to review the order of his predecessor in office.
6. The learned Single Judge held that the impugned order (Annexure-6) was bad inasmuch as the Circle Officer had no power of review under the Act. Moreover no notice was issued to the appellants before the impugned order was passed. On these and other grounds the learned Judge was pleased to allow the writ petition and quash the order dated 7.3.1980 (Annexure-6)
7. A review petition was filed by the opposite party which was ultimately allowed and the learned Judge by his impugned order and judgment dated 13th January, 1989 modified his earlier judgment dated 22.9.1987. The learned Judge found that initially Parchas were granted in favour of the appellants for smaller areas. But by order dated 7.9.1971 fresh Parchas were granted in favour of the appellants for. larger areas. In doing so the procedure for grant of Paracha, as required under the provisions of the Act, and the Rules framed thereunder was not followed. It was, therefore, held that even the order dated 7.9.1971 (Annexure-1) was wholly illegal and without jurisdiction and that the grant of fresh Parchas by the Circle Officer in lieu of the old Parchas was vitiated. It was, therefore, held that both the orders, namely, Annexure 1 dated 7.9.1971 as well as the later order, Annexure 6 dated 7.3.1980, were bad and deserved to be quashed. The learned Judge, accordingly, quashed both the orders. He, however, recorded the concession made on behalf of respondent No. 5 that if the application for fixation of fair rent in respect of the Parchas which were granted to the petitioners before passing of the order dated 7.9.1971 is granted, he will have no objection thereto, it was. therefore, directed that the Circle Officer concerned may fix fair rent in terms of Section 6(3) of the Act in favour of the appellants in respect of the lands covered by the Parchas originally granted in their favour.
8. Counsel for the parties did not dispute the legal position that under the Act the Circle Officer has no power to review his own order granting a Parcha in favour of a privileged tenant. The Act and Rules lay down the procedure to be followed, and necessary enquiries to be made, before a Parcha can. be issued. The proceeding is in the nature of a quasi judicial proceeding. There is no provision in the Act authorising the Circle Officer to review his order and, therefore, necessarily the order once passed by the Circle Officer can be challenged only in accordance with the provision of the Rules or Act or by filing a writ petition before this Court. It was, therefore, not disputed before us that the Circle Officer has no power of review. That being so the learned Judge was right in holding that the order dated 7.9.1971 (Annexure -1) was an order without jurisdiction inasmuch as by that order the Circle Officer purported to review the order of the earlier Circle Officer who had granted Parchas in favour of the appellants for lesser areas of land. This was sought to be reviewed by the order (Annexure-6) dated 7.3.1980. If the Circle Officer was not vested with the power of review, logically both orders contained in Annexures 1 and 6 suffer from the same vice i.e. want of jurisdiction. Since the Circle Officer had no power of review, rightly both the orders have been quashed but the original Parchas granted in favour of the appellants have been saved.
9. The learned Judge has also noticed that the mere quashing of Annexure 6 without quashing Annexure 1 would result in perpetuation of an illegality. If the order (Annexure 6) is held to be illegal and is quashed, it would result in revival of order (Annexure 1) dated 7.9.1971 which is also illegal. Keeping in view the well settled principle that in exercise of writ jurisdiction the Court will not issue a writ which will perpetuate an illegality, the learned Judge has quashed both the illegal orders. We find no infirmity in the order of the learned Single Judge.
10. In the result, this appeal, being devoid of merit, is dismissed.