Allowed

Mahesh Kumar Prasad Narayan Singh v. The State Of Bihar and Ors.

Patna HC12 Dec 2019CWJC/572/2019

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the issuance of purcha to respondents. The court held that the respondents failed to prove status as privileged tenants due to lack of consent and that the authority failed to issue statutory notice or conduct a proper enquiry. Consequently, the orders granting purcha and related building permissions were set aside and the matter remitted.

What did the court decide?

Orders dated 10.08.1989 and 01.09.2018 were set aside; matter remitted to Circle Officer for enquiry after hearing parties.

Mahesh Kumar Prasad Narayan Singh Vs The State Of Bihar… — Landlord and Tenant | Patna HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.572 of 2019

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Mahesh Kumar Prasad Narayan Singh Son of Late Shiv Charan Prasad Narain Singh, resident of Village Rajaura Rajwara, P.S.- Barauni, District- Begusarai.

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... ... Petitioner/s

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Versus

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The State of Bihar

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The Commissioner, Munger.

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The District Magistrate, Begusarai.

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The District Land Reforms Collector, Begusarai.

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The Circle Officer, Barauni, District- Begusarai.

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The Circle Karamchari, Barauni, District- Begusarai.

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The Circle Amin, Barauni, District- Begusarai.

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Ram Chandra Rajak, Son of Late Ramautar Rajak.

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Permila Devi, Wife of Late Ram Nandan Rajak

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Bambam Kumar Rajak, Son of Late Ram Nandan Rajak

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Shiv Nandan Rajak, Son of Late Ramautar Rajak.

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Dev Nandan Rajak, Son of Late Ramautar Rajak. All residents of Village Rajaura, Bhitta, P.S.- Barauni, District- Begusarai.

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... ... Respondent/s

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Appearance :

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For the Petitioner/s : Mr.Suresh Kumar Ishwar For the Respondent/s : Mr.Raj Kishore Roy -Gp18

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CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA ORAL ORDER

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6 12-12-2019

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Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for respondent no.8 to 12.

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Petitioner filed this writ petition to quash the order dated 10.08.1989 passed by Circle Officer, Barauni, DistrictBegusarai (respondent no.5) in Purcha Case No.19 of 1988-89 (Annexure 8) by which the Circle Officer issued purcha to respondent nos.8 to 12 under the Bihar Privileged Persons Homestead Tenancy Act on the land of the petitioner bearing

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Patna High Court CWJC No.572 of 2019(6) dt.12-12-2019 2/8

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khata no.24, keshra nos.839, 840 and 841 area 1 katha 12 dhurs and also for cancellation of Jamabandi opened in the name of respondent nos.8 to 12 vide Jamabandi Nos.23 vol.25 and 67 of Vol.6 and further to quash the order dated 01.09.2018 for construction of building under the Prime Minister Houses Scheme over the lands of the petitioner (Annexure 11).

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Learned counsel for the petitioner submits that khesra nos.839, 840 and 841 of khata no.24 and other lands of Tauzi no.9013 of Mauza Rajaura was purchased by Ramrati Kumari (ancestor of the petitioner) on 06.08.1942. Jamabandi of the said land was standing in the name of the ancestor of the petitioner vide Jamabandi No.85, Vol.5 and rent receipt was issued. Ramrati Kumari was the wife of Baidyanath Prasad Narayan Singh. In partition between Baidyanath Prasad Narayan Singh and his own brother Shivcharan Prasad Narayan Singh (father of the petitioner), the land fell in the share of the father of the petitioner. The father of the petitioner sold total 12 dhurs of land (from khesra no.840 of khata no.24, 6 dhurs and from khesa no.841 of khata no.24, 6 dhurs) to Ramautar Rajak (father of respondent nos.8, 11 and 12) and the husband of respondent no.9 in the year 1967. By virtue of such sale deed executed in favour of Ramautar Rajak and the husband of respondent no.9,

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Patna High Court CWJC No.572 of 2019(6) dt.12-12-2019 3/8

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the respondents remained in possession of 1 katha 12 dhurs of the land. Rest land remained in possession of the petitioner. The respondents have got their own khatiyani land.

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Learned counsel for the petitioner further submits that the respondents filed application before the Circle Officer for giving purcha over the lands of plot nos.839, 840 and 841 of khata no.24 of Mauza-Rajaura with regard to 7 decimals of land on the assurance that they are landless persons. The Circle Officer (respondent no.5) called for a report from the Revenue Clerk and the Circle Inspector, who reported that respondent nos.8, 11, 12 and the husband of respondent no.9 are landless persons and without issuing any notice to the petitioner, purcha was issued in their favour.

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Learned counsel for the petitioner further submits that respondent nos.8, 11, 12 and the husband of respondent no.9 are not privileged persons and they never remained in possession or constructed any house with the permission of the petitioner as privileged tenant. No notice was served on the petitioner before issuance of purcha, therefore, the issuance of purcha in favour of respondent nos.8, 11, 12 and the husband of respondent no.9 is illegal and without jurisdiction. The subsequent order for creating Jamabandi in their favour is also

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Patna High Court CWJC No.572 of 2019(6) dt.12-12-2019 4/8

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illegal and the respondent authority illegally ordered for construction of house on the lands of the petitioner.

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A counter affidavit is filed on behalf of respondent nos.3 and 5. Respondent nos.8 to 12 also filed counter affidavit.

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Learned counsel for the State submits that the Bihar Privileged Persons Homestead Tenancy Act provides appeal before the Collector against the order of issuance of purcha or to file suit on the ground of fraud or for want of jurisdiction, but it appears that respondents did not controvert the statement with regard to issuance of notice to the petitioner. The State respondent has also not controverted the facts about the execution of the sale deed with regard to 12 dhurs of land in question by the father of the petitioner in favour of Ramautar Rajak (father of respondent nos.8, 11 and 12) and the husband of respondent no.9.

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Learned counsel for respondent nos.8 to 12 submits that the ancestor of the respondents and thereafter they are living peacefully over the land for last 70 years and they have constructed kuccha house on some portion of the land. It is further submitted that the respondents are in permissive possession of the entire land and they are privileged persons under Section 2(i) of the Bihar Privileged Persons Homestead

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Patna High Court CWJC No.572 of 2019(6) dt.12-12-2019 5/8

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Tenancy Act. Therefore, purcha has rightly been issued in favour of respondent nos.8, 11, 12 and the husband of respondent no.9.

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Having considered the submissions of both sides, the question arises whether respondent nos.8 to 12 are the privileged persons and the purcha has been issued in their favour in accordance with law?.

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Section 2(i) and (j) provides definition of privileged person and privileged tenant which reads as follows:-

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2(i) Privileged person means a person-

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(a) who is not a proprietor, tenure-holder, undertenure-holder, or a Mahajan; and

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(b) who, besides his homestead, holds no other land or holds any such land not exceeding one acre;

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2(j) Privileged tenant means a privileged person who holds homestead under another person and is or but for a special contract would be, liable to pay rent for such homestead to such person;

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From the definitions of the expressions "homestead", "privileged tenant" and "rent" as defined in Clauses (d), (j) and (k) of Section 2 of the Act it appears that two conditions are contemplated which must exist as a condition precedent before a person can be called a "privileged tenant" within the meaning of the Act. Where the relationship of landlord and tenant exists without any arrangement for payment of rent as such, for example, in cases where the person happens to be an artisan like a carpenter, potter etc. and is allowed to occupy a house on consideration of his rendering service to the raiyat of the landlord concerned, there

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Patna High Court CWJC No.572 of 2019(6) dt.12-12-2019 6/8

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being always an implied contract on the part of the tenants to compensate the landlord for the use and occupation of the land. This implied contract postulates a promise by the occupier to pay the landlord a reasonable amount for the use and occupation. It is, therefore, difficult to accept the argument of the learned counsel for the petitioner, that a person who has entered upon somebody else's land, and although might be a privileged person in the sense that he does not possess any other land, without the consent of the raiyat or the landlord, acquires the right of a privileged tenant. In other words, to put it in a more appropriate way, a trespasser or a squatter cannot acquire the right of a privileged tenant and earn the protections and privileges conferred upon a privileged tenant under the statute.

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Learned counsel for the petitioner has

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specifically stated that the father of the petitioner sold 12 dhurs of land in question in favour of Ramautar Rajak (father of respondent nos.8, 11, 12) and the husband of respondent no.9 and the remaining land of the aforesaid plots remained in possession of the father of the petitioner. Neither the State respondent nor respondent nos.8 to 12 disputed this fact that Ramautar Rajak (father of respondent nos.8, 11 and 12) purchased 12 dhurs of land and they constructed their house thereon. Learned counsel for the petitioner has also stated that in order to grab the remaining land of the petitioner, the respondents concerned filed petition before the Circle Officer (respondent no.5) for issuance of purcha with regard to

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Patna High Court CWJC No.572 of 2019(6) dt.12-12-2019 7/8

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remaining lands of plot no.839, 840 and 841 of khata no.24. The Circle Officer called for a report from the Circle Inspector and the Revenue Clerk, who wrongly reported that respondent nos.8 to 12 are in possession of the land but no notice was issued to the petitioner. The respondents have not denied this fact that any notice was issued to the petitioner in whose name the record of right is standing.

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Rules 4 and 5 of the Bihar Privileged Persons Homestead Tenancy Act prescribed that on receipt of any of the application mentioned in rule 3, the Collector shall start proceedings under the relevant section to which the applications relate and deal with them in the manner provided for land revenue cases. The Collector shall either himself make local enquiry or have such enquiry made by any responsible officer not below the rank of a Circle Inspector or Welfare Inspector and satisfy himself as to the correctness or otherwise of the contents of such applications. The enquiring officer shall issue a notice in Form F to all the interested parties intimating the date on which the inquiry shall be made and directing parties to produce all the evidence in their possession in support of or against the application, but it appears that the Circle Officer after having received the application of respondent nos.8 to 12

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Patna High Court CWJC No.572 of 2019(6) dt.12-12-2019 8/8

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did not hold any enquiry in accordance with the rules prescribed thereunder and simply called for a report from the Circle Inspector and the Revenue Clerk, who reported that respondent nos.8 to 12 are in possession of the land. No notice was ever issued to the petitioner, who is admittedly recorded tenant of the lands. Notice and enquiry are made as safeguard against the arbitrary exercise of wide power conferred to the Collector under the Act and if it is found that the notice in the prescribed form or in any form to the landlord is not issued nor any enquiry as envisaged under the Rules has been held and a purcha is issued in favour of the applicant, such issuance of purcha is illegal. Thus, I find that the purcha issued in favour of respondent no.8 to 12 and Jamabandi created on the basis of issuance of such purcha are illegal and fit to be set aside.

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Accordingly, this writ petition is allowed and both orders dated 10.08.1989 (Annexure 8) and 01.09.2018 (Annexure 11) are set aside. The matter is remitted to the Circle Officer, Barauni (Begusarai) to decide it after hearing all the interested parties and after enquiry in accordance with the rules prescribed thereunder.

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(Prabhat Kumar Jha, J)

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Harish/- U

Mahesh Kumar Prasad Narayan Singh v. The State Of Bihar and Ors.

Case brief

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Mahesh Kumar Prasad Narayan Singh v. The State Of Bihar and Ors.

Case brief

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