BIKRAMA THAKUR Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD Mr. Shashi Shekhar Dwivedi for the petitioners, Mr. Abbas Haider, JC to GP No.II for respondent nos.1 to 5, and Dr. Alok Kumar Sinha for respondent nos. 6 to 9. This writ petition is directed against the order dated 26.2.2001 (Annexure -1), passed by the learned Collector of the district of Saran at Chapra in Misc. Petition No. 24/ 95 (Tapeshwar Thakur and Ors.vs. Sitaram Thakur and Ors.) in purported exercise of powers under section 21 of the Bihar Privileged Persons Homestead Tenancy Act, 1947 (hereinafter referred to as 'the Act'), whereby the revision petition at the instance of respondent nos. 6 to 9 herein has been allowed, and the settlement of the lands in question in favour of the petitioners has been cancelled. According to the writ petition, it relates to Plot no. 684, appertaining to Khata No. 146, covering an area of 7 1/2 decimals = 2 Kathas, situate at village Shekhpura, district Saran. It is further stated in the writ petition that the total area of this plot is 5 kathas and 2 hours and the said 7 1/2 decimals of which was setlled in favour of the petitioners by order dated 8.9.1992 as is evidenced by Parcha marked Annexure -2 to the writ petition followed by the rent receipts marked Annexure -3 series. Respondent nos.6 to 9 had filed an application before the learned DCLR stating therein that the lands in question are gair -mazarua am lands, being a garha used by members of the general public for purposes of bathing, drinking water, chhath and such other matters, and is being settled year after year for purposes of fishery settlement. The same was disposed of by order dated 27.9.2003, wherein he found that it was a garha being a pond used for the said purposes. He, however, desisted from cancelling the settlement for the reason that he was not authorised to do so. Respondent nos. 6 to 9 thereafter preferred revision application in terms of Section 21 of the Act which has been allowed by the impugned order and the settlement had been cancelled. Hence this writ petition at the instance of the settlee.

(2.) WHILE assailing the validity of the impugned order, learned counsel for the petitioners submits that the aforesaid order dated 8.9.1982, ordering settlement in favour of the petitioners, had become final. He next submits that the revision application was not maintainable because the provision for revision in terms of Section 21 was inserted by Act XI of 1989 with effect from 25.9.1989, much less at the instance of mere busy -body like respondent nos.6 to 9 who claim no personal interest in the matter and have no locus standi to maintain the same. He relies on the following reported judgments in support of his submission that a provision of law inserted at a later date cannot be allowed to be re -opened thereunder unless the same was retrospective in character either by a clear provision of law or necessary intendment: (i) (1997) 5 SCC 536 (Mafatlal Industries Ltd. And ors vs. Union of India and Ors.) (ii) (1998) 8 SCC 469 (K. Kupusamy and Anothers vs. State of Tamilnadu and Ors.) (iii) 2000(2) PUR 133 (Chhangurlal Gupta vs. State of Bihar) and (iv) 2001 (8) SCC 24 (Shyam Sunder and ors. vs. Ram Kumar and Another) 2.1 He next submits that there is no material on record to show that the land in question is gair -mazurua aam lands and a garha and was being used for the alleged purposes as is being claimed by the respondents. He lastly submits that the cause of the respondents is hit by estoppel and acquiescence for the reason that the petitioners have made construction of a double -storeyed house on the land in question, taking the order of settlement to be final.

(3.) I have perused the materials on record and considered the submissions of learned counsel for the parties. Learned Government counsel has taken me through various materials on record to show that the lands in question were recorded in the survey records as gair -mazurua aam, and are being used for the aforesaid purposes, and being settled for fishery purposes year after year. First of all is the report of the Additional Collector, Saran, Chapra (Annexure -6) which says that the land in question is registered as gair -mazurua malik garha and a portion of the land settled in favour of the petitioners is a garha which is settled every year for purposes of fishery. It was so settled at the time of inspection also. He has, therefore, stated that this being a Government land, could not have been settled. It is so recorded at page -62 of the Shairat Register. It has further been noticed in the impugned order that prior to vesting of zamindari, it was recorded as gair -mazurua malik in R S Khatian, and on vesting had come in possession of the State of Bihar which is admitted by all sides before me. The impugned order has also noticed the aforesaid order dated 27.9.1993, passed by the learned LRDC, wherein he states that the Parcha has been illegally granted to the petitioners herein and ought to be cancelled. It is further stated in the order dated 23.6.1997 (Annexure -4), passed by the learned Collector of the district of Chapra in the present Misc. Case No. 24/95 that the petitioners herein are not landless persons. It appears to me on a consideration of the materials on record that the lands in question are Government lands which has a pond therein, which is being settled for the purpose of fishery, and was in fact at the time of impugned order settled in favour of some body. In fact, such are the findings recorded in the impugned order.