Mithilesh Jha vs The State Of Bihar And Ors
2023 Latest Caselaw 165 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Letters Patent Appeal No.1660 of 2016
                                          In
                          CIVIL REVIEW No.247 of 2015
     ======================================================

Mithilesh Jha Son of Bala Kant Jha, aged about 55 years resident of Village- Gandwar, P.S.- Andhera Tharhi, Dist- Madhubani.

... ... Appellant/s Versus

1. The State of Bihar.

2. The Collector, Madhubani.

3. The Additional Collector, Madhubani.

4. The Circle Officer, Madhubani.

5. Most. Jaleshwari Devi wife of Late Vishwanath Singh resident of Village-

Gandwar, P.S.- Andhera Tharhi, Dist- Madhubani.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Ms. Anju Mishra, Adv. For the State : Mr. Anisul Haque, AC to AAG5 For the Resp. No.5 : Mr. B.N. Tiwari, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE SATYAVRAT VERMA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 12-01-2023 Heard Ms. Anju Mishra, learned advocate for the

appellant and Mr. B.N. Tiwary for the respondent no.5 and

Mr. Anisul Haque for the State.

The order under challenge is dated 11.08.2015

passed by the learned Single Judge of this Court in CWJC

No. 6008 of 2009 whereby the order passed by the

Collector, Madhubani in Miscellaneous (Basgit Parcha) Case Patna High Court L.P.A No.1660 of 2016 dt.12-01-2023

No. 25 of 2006-07 / 07 of 2007-08, cancelling the Basgit

Parcha issued to the appellant, has been affirmed.

The learned Single Judge, while affirming the order

passed by the Collector cancelling the Basgit Parcha issued

in favour of the appellant, found that the land in question

belonged to one Mahanth Madan Mohan Das and Uday Kant

Jha, the writ petitioner, was his employee. This was the

relationship between the ancestor of the appellant (the

appellant is the nephew of Uday Kant Jha who has preferred

this appeal after the death of Uday Kant Jha and his wife)

which was the reason for possession of land with the

ancestor of the appellant.

There was no settlement in favor of the writ

petitioner/Uday Kant Jha, which fact was admitted by him in

the writ petition. With the vesting of Zamindari in the

Government and there being no settlement of land in favour

of Uday Kant Jha by the ex-landlord, there did not exist any

relationship of landlord and tenant.

After examining the provisions of Bihar Privileged

Persons Homestead Tenancy Act, 1947 (in short 'the Act'), Patna High Court L.P.A No.1660 of 2016 dt.12-01-2023

the learned Single Judge was of the view that the provisions

contained therein were aimed at preventing a privileged

tenant from being ejected from the homestead land, except

on the grounds mentioned in Section 8 of the Act viz ejection

could only be on the ground that the tenant had used the

holding or any part thereof in a manner which rendered the

holding unit for the purposes of tenancy and on the ground

that the tenant has failed to pay the rent of the holding for

two years and that no privileged tenant would be so ejected

except in execution of an order of ejectment passed by the

Collector and secondly that no such order passed on the

ground of failure of rent was to be executed, if the full

amount of the arrears of rent together with interest if any;

or where there has been a decree for such arrears, the

amount payable under such decree, was deposited with the

Collector within three months from the date on which the

order was signed.

The provision contained in Section 8 regarding the

requirement of an execution proceeding before the Collector Patna High Court L.P.A No.1660 of 2016 dt.12-01-2023

for him to pass an order of ejectment has been deleted by

the Amendment Act of 11 of 1989.

Finding that there was no status of Uday Kant Jha

of a privileged tenant, Basgit Parcha could not have been

issued to him in the first instance. Any land which is vested

in the State of Bihar is not amenable to the beneficent

provisions of Bihar Privileged Persons Homestead Tenancy

Act, 1948.

The issuance of Basgit Parcha thus was found by

the learned Single Judge to be bad in the eyes of law.

Ms. Mishra, learned counsel for the appellant, while

challenging the aforesaid order, has drawn the attention of

this Court to the fact that Section 21 of the Act which

provides the power to the Collector of the district to call for

and examine records, was introduced in the Act only by

Amendment Act 11 of 1989 by which one proviso of Section

8 was deleted. She, therefore, submits that for Section 21 to

be invoked, which is an addition in the Act in the year 1989

only, the transactions had to be post 25.09.1989. In

support of the aforesaid contention, Ms. Mishra has drawn Patna High Court L.P.A No.1660 of 2016 dt.12-01-2023

attention of this Court to the judgment of this Court in Om

Prakash Singh Vs. The State of Bihar & Ors.; 2004 (2) PLJR

621, wherein this argument was raised and was considered

but the case was decided on other grounds.

We also find from the order impugned that when

the Basgit Parcha granted in favour of Uday Kant Jha, the

ancestor of the appellant, was cancelled by the District

Collector by order dated 28.08.2006, the same was

challenged by him in an earlier proceeding in CWJC No. 526

of 2007 on the sole ground of no notice having been issued

to him before cancellation of such Parcha. For that reason,

such cancellation order was set aside and the matter was

remitted to the Collector, Madhubani, for deciding the issue

afresh after giving fresh notice to the parties.

Pursuant thereto, the order by the Collector was

passed, holding that the ancestor of the appellant was not

entitled for Basgit Parcha for the reason that the land

belonged to the Government and not to any Zamindar and

while the time the Zamindari rights remained vested with the Patna High Court L.P.A No.1660 of 2016 dt.12-01-2023

Ex-Zamindar, there was no settlement in favour of the writ

petitioner/Uday Kant Jha.

True it is that provisions of Section 21 of the Act

could be invoked for transaction post the amendment of

1989 i.e. 25.09.1989, but in the present case, the Basgit

Parcha granted to the ancestor of the appellant is non-est in

the eyes of law, as there was no existing jural relationship of

the landlord and the tenant with anybody.

It is axiomatic that a government land cannot be

allowed to be appropriated by any person in the absence of

any specific settlement in favour of such person. Without

invoking the powers under Section 21 of the Act therefore,

the Collector found the order granting Basgit Parcha by the

Circle Officer to be bad in the eyes of law and, therefore, it

was treated as non-est.

Much later, the land in question was settled with

private respondent no.5, which Parcha has not been

questioned by the appellant in any proceeding whatsoever.

Patna High Court L.P.A No.1660 of 2016 dt.12-01-2023

Mere statement of the appellant that he does not

have any idea about such Parcha having been granted to

respondent no.5, would be of no avail to the appellant.

Thus, on the issue of the Basgit Parcha in favour of

the ancestor of the appellant being non-est in the eyes of

law and the land in question having been settled with private

respondent no.5 not having been questioned in any

proceeding whatsoever, we are not persuaded to interfere

with the order passed by the learned Single Judge.

There is no merit in this appeal.

The appeal is thus dismissed but without any order

as to costs.

(Ashutosh Kumar, J)

( Satyavrat Verma, J) rishi/-

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Uploading Date          17.01.2023
Transmission Date