Remanded

Bhuneshwar Rai v. The State Of Bihar and Ors.

Patna HC1 Jul 2019CWJC/106/2018

Case brief

AI extract

What is this about?

The High Court directed a fresh proceeding under the Bihar Privileged Persons Homestead Tenancy Act due to missing original records from a 1990 case. The court also ordered an enquiry into the disappearance of records and appointed status quo until the final decision.

What did the court decide?

Directions for fresh proceedings under the Act, enquiry into missing records, maintenance of status quo, and appointment of Vigilance Bureau if FIR is registered.

Bhuneshwar Rai Vs The State Of Bihar and Ors. — Land Acquisition | Patna HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.106 of 2018

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Bhuneshwar Rai son of Late Ganga Rai resident of village -Purkhauli, Police Station - Lalganj, District - Vaishali.

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... ... Petitioner

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Versus

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The State Of Bihar through the Principal Secretary, Land Reforms Department, Government of Bihar, Patna.

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The Divisional Commissioner, Tirhut Range, Muzaffarpur.

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The District Magistrate, Muzaffarpur.

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The Circle Officer, Lalganj, Muzaffarpur.

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The Cabinet Vigilance Department through its Principal Secretary, Government of Bihar, Patna.

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Kishori Thakur son of Late Rameshwar Thakur Vill. Post PS - Purkhauli, Lalganj, Muzaffarpur.

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... ... Respondents

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====================================================== Appearance : For the Petitioner : Mr. Anand Kumar Ojha, Advocate Mr. A. K. Karna, Advocate For the Respondent State: Mr. Sajid Salim Khan, SC-25 For the Vigilance : Mr. Deepak Sahay Jamuar, AC for Respondent No. 6 : Mr. Awadhesh Kumar Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

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ORAL ORDER

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9 01-07-2019

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Following is the relief, which the petitioner is seeking

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“i. To call for and quash the entire proceeding under Case No.62/1990-91 under the Bihar Privileged Persons Homestead Tenancy Act (in short BPPHT Act) including the Basgit Parcha dated 22.10.1990 issued in favour of the Private Respondent No. 6 on the ground that the said parcha is issued over the Raiyati Land without any notice to the Petitioner and in a collusive manner showing fraudulent conduct of the private Respondents in connivance with the public servants.

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ii. To hold and declare that the Petitioner has

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committed fraud with the authorities as he is not a privilege person as he owns sufficient land which is apparently ignored and in clandestine manner a basgit parcha is disclosed only recently but the same is shown as issued in the year 1990 apparently by tampering in the records and other fraudulent conduct.

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iii. Issuance of declaration that the proceedings under BPPHT Act is a quasi-judicial proceeding as held by Division Bench of this Hon’ble Court in the Case of Latif Miya vs. State of Bihar reported in 1998(2) PLJR 723 hence the requirement of reasonable procedure having not been followed the so called basgit parcha issued to the private Respondents is a nullity in the eyes of law.

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iv. Issuance of direction to the Authorities to produce the entire record including the original basgit parcha and quashed the same and further direct to restore the Raiyati Land of the Petitioner is the Khata No. 760 Khesra 3180 Area .05 decimal to the Petitioner who is the Raiyati over land residing over the same since long.

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v. Issuance of direction to the Vigilance Department to initiate proceeding and pro the role of the officials and employees of the Circle Office who had aided/abetted commission of fraud by the Private Respondent in a proceeding of which the Petitioner never received any notice.”

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It is the case of the petitioner that the land in question belongs to him and respondent No. 6, claimed himself to be a privileged person by subterfuge and got a Basgit parcha issued in his favour in the proceeding in question in the absence of the petitioner.

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It is the specific case of the petitioner that the entire

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proceeding was conducted so surreptitiously, covertly and in a manner suggestive of collusion of the authorities too. It is his case that as a matter of fact, the respondent No. 6 was allowed by the petitioner to run his business and to reside over the part of the petitioner’s land. In the order passed by the authorities in a proceeding of issuance of basgit parcha, though presence of the petitioner has also been noted, this fact has been completely denied by the petitioner in the present pleadings. It has further been stated that the authorities are reluctant to provide the petitioner, certified copy of the entire records, which he had required for verifying the genuineness of the procedings in question.

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It is the further case of the petitioner that though the basgit parcha was issued in 1990, the petitioner was absolutely incognizant of its issuance in favour of respondent No. 6, in respect of the petitioner’s land and he discovered about the same only on receiving a notice issued by the Circle Officer, Lalganj, dated 18.12.2017, on a complaint made by respondent No. 6. The notice, which has been brought on record by way of Annexure4, according to the petitioner, is collusive and unsustainable.

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A counter affidavit has been filed on behalf of respondent No. 6 stating therein that he belongs to the Scheduled Tribe and was granted basgit parcha in the proceeding of Case No. 16 of 1990-91,

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which was contested by the petitioner. A photostat copy of the certified copy of the order, dated 20.10.1990, has been brought on record by way of Annexure-C/1 to the counter affidavit. With reference to the same, it has been stated that the decision to grant basgit parcha is founded on reports of Halka Karamchari and Circle Inspector, which wee called during the proceedings under the Bihar Privileged Persons Homestead Tenancy Act, 1947 (herinafter referred to as the Act). It has further been stated that the land has been mutated in the name of respondent No. 6, whereafter he is regularly paying land revenue to the Government of Bihar for the land in question. It has also been stated that more than 25 years after the basgit purcha was issued, now, when the land, over which the respondent No. 6 is residing, has become valuable, the writ petitioner has started taking steps for obtaining forceful possession over the land with the help of antisocial elements, which is evident from the report of the local police, submitted to the learned Additional Sessions Judge-cum-Special Court, Vaishali at Hajipur.

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It has further been stated that respondent No. 6 had no other option than to file a Complaint Case No. 72 of 2017 on 14.09.2017 before the learned Additional Sessions Judge-cumSpecial Judge (SC/ST), Vaishali at Hajipur, which has been registered as Lalganj P.S. Case No. 08 of 2018. The averments

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in the writ application have been denied and it has been asserted that as a matter of fact, the petitioner had participated in the proceeding leading to issuance of the basgit parcha .

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A rejoinder has been filed on behalf of the petitioner to the counter affidavit filed on behalf of respondent No. 6, stating that respondent No. 6 has not given the details of the application filed by him nor there is any record of enquiry conducted by the authorities. In such circumstances, the petitioner had requested that the entire records of Case No. 62 of 1990-91 might be called for by this Court from the Circle Officer, Lalganj, Vaishali, so as to verify whether notice was ever issued to the petitioner or not. It has been reiterated in the rejoinder affidavit that the petitioner had no knowledge about the proceeding in Case No. 62 of 1990-91 under the Act and he learnt about it only one year ago, when respondent No. 6 disclosed to some of the villagers that he had received the basgit parcha in his favour in respect of the land in question.

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There is a counter affidavit filed on behalf of the State respondents also. It has been stated in the counter affidavit, based on the photostat copy of certified copy of the order-sheet of the record that the petitioner had appeared before the Circle officer, Lalganj, and raised his objection, which is being wrongly denied by him. Based on the said photostat copy of the certified copy, the State of Bihar has controverted the stand of

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the petitioner that he did not have any knowledge about the proceeding under the Act. It has further been stated that after receiving a complaint from respondent No. 6 alongwith a certified copy of basgit parcha , the Circle Officer, Lalganj, had issued notice on 08.12.2016, asking the petitioner to submit his reply.

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It is noteworthy that when the matter was taken up on 29.03.2019, in the background of the stand taken on behalf of the petitioner, this Court had directed learned counsel for the State of Bihar to produce before this Court the original records of the proceeding in question under the Act. In the counter affidavit filed on behalf of the State of Bihar, it has been stated that the case records could not be traced despite sincere and rigorous search of the same and that the records might have got damaged due to “dampness and termites”, and, therefore, the State respondents are helpless, with no hope, to find out the original case records of the said basgit parcha and produce it before this Court, as directed by order dated 29.03.2019. A rejoinder has been filed on behalf of the petitioner in resonse to the counter affidavit filed on behalf of the State of Bihar also. In the rejoinder affidavit, the petitioner has alleged that conflicting stands are being taken on behalf of the State of Bihar, to defeat the petitioner's cause.

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I have heard Mr. Anand Kumar Ojha, learned counsel

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appearing on behalf of the petitioner, Mr. Sajid Salim Khan, learned Standing Counsel No. 25, appearing on behalf of the State respondents and Mr. Awadhesh Kumar Singh, learned counsel appearing on behalf of respondent No. 6.

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Mr. Anand Kumar Ojha, learned counsel appearing on behalf of the petitioner, has relied on a Supreme Court’s decision, in case of Bharat Singh v. State of Haryana ( AIR 1988 SC 2181 ) with reference to paragraph No. 13 thereof, to submit that an affidavit, not supported by the connected documents, deserves to be rejected at the threshold. Reliance has also been placed on another Supreme Court’s decision in case of Union of India Vs. Ibrahimuddin , reported in 2013(1) PLJR (SC) 49, referring to paragraph Nos. 6 to 17 thereof, to contend that this Court should draw an adverse inference against the State of Bihar and private respondent No. 6 for the failure on their part to produce the original records.

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Learned counsel appearing on behalf of respondent No. 6, on the other hand, has placed reliance on a decision of this Court in case of Bishwanath Das and Ors. Vs. The State of Bihar and Ors. , reported in 2015(4) PLJR 869, to contend that the petitioner cannot question the legality of basgit parcha issued on 22.10.1990, after 28 years, by filing present writ application. He has contended that this writ application deserves

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to be dismissed on the ground of delay alone as the justification furnished on behalf of the petitioner in the writ application is imaginary and untenable, which are based on incorrect facts. It has further been argued that the impugned order of the Circle Officer has specifically dealt with the nature of objection taken on behalf of the petitioner, which cannot be said to be manipulated.

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Learned Standing Counsel No. 25, appearing on behalf of the State of Bihar, has submitted that it cannot be believed that the petitioner would not be knowing about basgit parcha, issued 28 years ago.

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After having perused rival pleadings on record on behalf of the parties and considered rival submissions advanced on their behalf, it is easily discernible that there is no dispute on certain facts. The petitioner has taken specific plea of complete lack of knowledge about the proceeding of Case No. 62 of 1990-91 before the Circle Officer, Lalganj, leading to passing of an order dated 22.10.1990 and subsequent issuance of basgit parcha . A copy of certified copy of the said order, dated 22.10.1990, has been brought on record by way of AnnexureC/1 to the counter affidavit filed on behalf of respondent No. 6. On perusal of the said order, it can be easily noticed that the

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order refers to the appearance of the petitioner in the said proceeding and his objection to the petitioner’s claim for issuance of basgit parcha . The original records of the said proceeding having, however, not been produced, despite this Court’s order, on the plea that the records are missing, I find it difficult to out right reject the plea on behalf of the petitioner that he had not participated in the proceeding under the Act before the Circle officer. This Court cannot record a finding, in the absence of original records or any other relevant document(s), on the core issue, as to whether the petitioner had participated in the said proceeding or not. In such circumstance, I am left with no other option but to interfere with the impugned order, dated 22.10.1990, issued by the Circle Officer.

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In the facts and circumstances of the case, however, I direct that let a fresh proceeding be initiated under the Act on the basis of a fresh application to be filed by respondent No. 6. The claim of the petitioner will be decided as if he was raising his claim in 1990 based on which basgit purcha was issued in his favour and lead his evidence accordingly. It will also open for him to establish his claim of a privileged tenant on the basis present state of affairs. Learned counsel appearing on behalf of respondent No. 6 states that he will be making appropriate

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application within one month from today with relevant documents, under the Act. Learned counsel appearing on behalf of the petitioner states that the petitioner shall appear in the proceeding under the Act before the Circle Officer, if the same is instituted by respondent No. 6 within one month from today, even if he does not receive any formal notice thereof. It is directed that the Circle Officer will, thereafter, be required to proceed to determine the rival claims of the parties in this regard on the basis of evidence adduced by them in the proceeding under the Act. The proceeding must conclude within six months from the date of appearance of both the parties. The Court further expects that the parties shall cooperate in the proceeding before the Circle Officer. If there is any non-cooperation on behalf of either of the parties, they shall be at liberty to approach this Court and may file an affidavit in the present matter, for issuing necessary direction/order.

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Before I part with the present judgment and order, I must record that disappearance of the original records of proceeding in Case No. 62 of 1990-91 under the Act is a matter of serious concern, which has made it impossible for this Court to adjudicate upon rival claims of the parties. It is because of the absence of the original records that the Court, in peculiar

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circumstance, has to issue such directions, as noted above.

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This Court is of the, prima facie , view that disappearance of such records cannot be accidental and result of inadvertent mistake or negligence. Prima facie , it appears that the disappearance of the records has been deliberately caused to augment the case of either of the parties. I direct, the District Magistrate, Vaishali, therefore, to cause an enquiry into disappearance of records and if he is of the opinion that disappearance of the records is deliberate, he will be obliged to get instituted a First Information Report immediately thereafter. In the event any First Information Report is registered, it is further directed that the same shall be investigated by Vigilance Investigation Bureau under the direct supervision of the Additional Director General, Vigilance.

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In the meanwhile, it is directed that the parties shall maintain status quo till a final decision is taken by the competent authority.

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This writ application stands disposed of with above observations and directions.

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(Chakradhari Sharan Singh, J)

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Pawan/-

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Bhuneshwar Rai v. The State Of Bihar and Ors.

Case brief

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Bhuneshwar Rai v. The State Of Bihar and Ors.

Case brief

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