Shivaji Pandey, J - (1.) HEARD learned counsel for the petitioners and the State.
(2.) IN this writ petition, petitioners have made a prayer for issuance of writ of mandamus or any other appropriate writ or order commanding the respondent-authority not to construct any building, structure or boundary wall under the INdira Awas or Jawahar Rojgar Yojana over R.S. Plot Nos. 5873 measuring 13 decimals, 5874 measuring 16 decimals, 5875 measuring 3 decimals and 5876 measuring 8 decimals. Short facts of the case is that Shriandan Choudhary (deceased) of village Belaur, P.S.Udwant Nagar in the district of Bhojpur had two sons, namely, deceased Bhagwat Choudhary and deceased Buchi Choudhary. Bhagwat Choudhary had only one son, namely, Bansropan Choudhary (Petitioner no.1) and Buchi Choudhary had two sons, namely, Rameshwar Choudhary (deceased) and Onkar Nath Choudhary (petitioner no.2). Petitioner no.2 is the Karta of the joint family constituting heirs of deceased Rameshwar Choudhary. Petitioners are owner of R.S. Plot Nos. 5873 measuring an area of 13 decimals, 5874 measuring an area of 16 decimals, 5875 measuring an area of 3 decimals and 5876 measuring an area of 8 decimals of villager Belaur, P.S.Udwant Nagar in the district of Bhojpur and the land in dispute is Kast Raiyati lands of the petitioners they are recorded jointly in the names of Bansropan Choudhary (Petitioner no.1) and deceased Buchi Choudhary along with others. Prior to the Revisional Survey, the lands in question were also recorded as Raiyati lands of the ancestors of the petitioners. The petitioners as well as their ancestors have been coming in peaceful possession over the same. It has been submitted that at no stage either the respondent-authorities or any other person has disturbed their peaceful possession over the same. The Revisional Survey Khatiyan was also prepared in the year 1970, it was recorded in the name of deceased Buchi Choudhary and Bansropan Choudhary. It has further been averred that at the time of vesting of Jamindari, lands in question were shown in the name of ancestor of petitioners accordingly, they were paying rent to the State of Bihar regularly. On 2nd February 1997, the petitioners were surprised when the B.D.O. arrived in the village Belaur and got bricks, sand and other construction materials stacked on the aforesaid lands. On enquiry, it transpired that the houses will be constructed for the poor people over the lands in question under Indira Awas and Jawahar Rojgar Yojana. Petitioners claimed that the lands belonged to them and they are the valid title holders and they cannot be deprived of the same, unless the same is acquired under the appropriate proceeding. It has been stated that the land has not been acquired by the Government either under the Land Acquisition Act or any other Act nor they have been given any compensation for the same. Petitioners submitted that they cannot be deprived of their lands for implementation of any scheme. The State has filed a counter affidavit and has accepted the fact that the lands belonged to the petitioners but has taken the plea that they were never in possession of the same and it was occupied by the poor people for whom houses are being constructed under the aforesaid schemes of the Government, though this fact has been admitted that the land belonged to the petitioners. It is stated that the lands were settled under the Bihar Privileged Persons Homestead Tenancy Act, 1947 and, as such, the claim of the petitioners cannot be entertained in the writ petition.
(3.) FROM the pleadings of the parties, it is undisputed that the lands belonged to the petitioners and the same have not been acquired by or under any Act. The State has claimed possession of others and on that reason the State wants to construct houses over the same. Petitioners submitted that while issuing Parcha, the authority was required to follow the procedure under the Act but before issuing Parcha, neither the petitioners have been given any notice nor any proceeding was initiated and merely they issued Parcha in favour of poor persons. In this view of the matter, in stead of deciding the issue, with regard to validity of the Parcha the matter is being remanded back to the Collector under the Bihar Privileged Persons Home Tenancy Act to decide the issue as to whether the Parchas which were given to the persons interested have been rightly issued after following the procedure of the Act or otherwise. The Collector will decide all the issues after issuing notice to all the parties concerned, including the persons in whose favour the houses were being constructed. While admitting this petition, this Court vide order dated 3rd April 1997 passed the order in following terms: "During the pendency of the writ petition, further construction shall not be raised on the lands claimed by the petitioners, as stated in Parazgraph-1 of the writ petition." On 29th April 1997, while admitting this petition, the Court has passed order that the possession of the petitioner would not be disturbed till final disposal of the writ petitionl. Since the matter is being remitted back to the Collector, this order of interim relief will continue for one month from to-day. By the time the petitioners will file an application before the Collector under the Act and thereafter the Collector will pass appropriate order, including the interim order, if any. Accordingly, this writ petition stands disposed of with the aforesaid direction and observation. ;