SONE LAL SAHNI AND ANOTHER Vs. THE STATE OF BIHAR AND OTHERS

JUDGEMENT

(1.) This is an application under Articles 226 and 227 of the Constitution of India in which a prayer has been made for issuance of a writ of certiorari quashing Annexure -1 dated 9.11.1979. Annexure -1 is a letter by the District Magistrate, Muzaffarpur, to the Block Development Officer, Gaighat directing him to give vacant possession of plot nos. 467 and 468 area 11 decimals with the help of armed force after removing the petitioners who were found illegally occupying 7 decimals of land. These plots originally belonged to one Shambhal Laheri, who was the recorded tenant in the cadastral survey khatian. It is stated in the petition that one Jamuna Singh the ancestor and predecessor -in -interest of petitioner no. 2 purchased the said lands from Shambhal Laheri. Jamuna Singh died issueless leaving behind his two brothers Jagdev Singh and Jageshwar Singh, father of petitioner no. 2. It is further stated sic a family partition between the two brothers plot no. 467 fell in the share of Jageshwar Singh: On the death of Jageshwar Singh petitioner no. 2 Awadheshwar Singh is said to have come in possession over the said plot. On 18.1.1979 petitioner no. 1 claims to have purchased the said plot from petitioner no. 2 and further claims to have constructed his residential house. The petitioners' case is that they had no knowledge about any proceeding under the Bihar Privileged Persons Homestead Tenancy Act, 1947 (hereinafter referred to as the Act) or under the Consolidation proceeding in respect of plot no. 467. It is further stated that respondent no. 5 fraudulently obtained some order with respect to plot no. 467 and moved the District Magistrate for possession over the same and the District Magistrate without any authority of law passed the impugned order.

(2.) A counter affidavit has been filed on behalf of respondents 1 to 4, the State of Bihar and its officers. In the counter affidavit statements made in paragraph I have been denied. It has been stated in paragraph 4 that respondent no. 6 Sharda Devi wife of Dilawar Baitha is the owner of plot no. 467 area 7 decimals and plot no. 468 area 4 decimals who has constructed a house over plot no. 468 and is living there. It is further stated that in plot no. 467 area 7 decimals respondent no. 6 has her Bari, Sahan and court -yard etc. Both the plots are amalgamated. It is then stated that "Purcha was granted in the name of respondent no. 6 in this year 1970. The Block Development Officer made a spot enquiry to verify the sic and possession of respondent no. 6 was confirmed vide enquiry report dated 5.8.1979". In paragraph 6 it has been stated that in the Consolidation proceeding a direction has been given to enter the name of Dilawar Baitha, husband of respondent no. 6 in respect of plot no. 467 as will appear from Annexure -A to the counter -affidavit. In paragraph 7 of the counter affidavit it has been stated that writ petitioner no. 1 Sone Lal Sahni purchased 5 decimals of land from petitioner no. 2 without the permission of the Consolidation Officer and on that ground the purchase was null and void. The petitioners' possession over the plots in question has been denied and it has been further stated that purcha was issued in the name of respondent no. 6 under the Privileged Persons Homestead Tenancy Act in respect of the disputed plot after due notice to the persons concerned by the authorities. It is further stated in the counter affidavit that after the purcha was granted the petitioners have illegally occupied some portions of the disputed plots and in such a situation the District Magistrate had to direct the concerned authorities to get the illegal occupation vacated.

(3.) Learned counsel for the petitioners had submitted that before passing the impugned order and directing the authorities to remove the petitioners from the plots in question, the procedure laid down in Rule 5 of the Bihar Privileged Persons Homestead Tenancy Rules, 1948 (hereinafter referred to as the Rules) should have been followed. His submission is that no enquiry as contemplated under rule 5 of the Rules was made nor any notice was given to the petitioners before passing the impugned order.