VIKRAMADITYA PRASAD, J. - (1.) THIS writ application has been filed for quashing Annexure -1 whereby and whereunder Parcha has been directed to be issued in favour of the respondent No. 5 by the Circle Officer in Palamau Case No. 3/90 -91 and for quashing Annexure -3 whereby and whereunder the Deputy Commissioner, Palamau, dismissed the appeal of the petitioner against the order aforesaid in Misc. Case No. 50/91 -92.
(2.) THE points for determination in this writ application are (i) whether an order granting a document creating permanent homestead tenancy without any finding whether the person concerned is a privileged person or privileged tenant is illegal and without jurisdiction and (ii) whether a Circle Officer, without making inspection, can pass an order under Rule 5 of the Privileged Persons Homestead Tenancy Rules, 1948. The aforesaid questions arose out of the short facts that the disputed land over which tenancy was sought by the respondent No. 5 and subsequently granted comprises of 10 Decimal of land in plot No. 355, Khata No. 45 in village Kamta, P.S. Chandwa, District -Palamau. This land is a part of plot No. 355 and had vested in the State of Bihar in the year 1951 -52 along with other lands of ex -proprietor of Tori Estate, namely, late Jagdhartri Nath Shahdeo and demand in Register II was entered in the name of said Jagdhatri Nath Shahdeo and the land was recorded as Gairmajrua Malik land. The father of the respondent No. 5, Bhagirathi Panda, the grandfather of the respondent No. 4, was allowed to use the disputed land for construction of a house for residential purpose in lieu of the service rendered as Pujari of the Thakurbari of the ex -proprietor. It was thus Naukrana land. The said Bhagirathi Panda died in or around the year 1968 -69. Thereafter none of his descendants had any concern with that house, so the respondent No. 4 got the name of the respondent No. 5 recorded in Register II. Thereafter, the respondent No. 4 and 5 filed an application before the Circle Officer, Chandawa, who is the Collector under this Act, for grant of a Parcha for 15 Decimal of land in plot No. 355 on the ground that the respondent No. 5 was a privileged tenant and held that land as naukrana land. That was resisted by the petitioner and without making a local inspection and without holding the respondent No. 5 as privileged tenant and though the respondent No. 5 owned more than one acre of land in the same village, parcha was granted creating homestead tenancy to the respondent No. 5, Annexure -1. The petitioner thereafter moved the Deputy Commissioner in appeal against that order and the Deputy Commissioner, coming to the findings that, "the families are Pujari Families. If any temple is constructed, a Panda is indispensable for a temple according to Sanatan Dharma", dismissed the appeal, vide Annexure -3. Though Annexure -4, which is the continuous khatian in the name of the respondent No. 4, clearly indicates that she held 1 acre and 15 Decimal of land bearing plot No. 647/1606 and this gave a cause of action to the petitioner to file this writ application, challenging the impugned orders at Annexure -1 and 2 on the grounds that (i) the respondent No. 5 having more than one acre of land was not a privileged person and consequently, no parcha could have been issued to her and (ii) the local inspection was made in absence of the petitioner and that was in violation of the Rule 5 of the Bihar Privileged Persons Homestead Tenancy Rules, 1948 (hereinafter referred to as Rules).
(3.) THE respondents appeared and filed counter -affidavit denying the contentions of the petitioner, asserting that the respondent No. 5 was, in fact, after the death of her father, Bhagirathi Panda, had continued to hold that land in the capacity of the cook of the petitioner and the inspection was made by the Circle Officer and Annexure -4, the khatian, has been produced before the writ Court for the first time, which was not produced in evidence by the petitioner before the Circle Officer and the Annexure -4 was prepared in the year 1978 and has not been finalized and has been challenged by one Daya Nidhi Panda in Case No. 177/1994.;