PRASAD MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Articles 226 and 227 of the Constitution against the order of the Circle Officer, Majorganj (Annexure C), which was approved by the, Sub -divisional Officer of Sitamarhi, directing the settlement of Basbitta Hat with opposite party No. 3 Ganandeo Singh, who is the Mukhiya of Basbitta Gram Panchayat, for the year 1966 -67 on a jama of Rs. 1,000/ -.

(2.) The Basbitta Bazar in Majorganj Thana of Sitamarhi subdivision is held regularly in survey plot Nos. 708 and, 710 appertaining to Touzi No. 3244. There is controversy between the parties as to whether the Hat extends also over two other plots, namely, 281 and 283, of village Maspasirpal. But it is unnecessary to consider this dispute here. There were several casharer landlords of the said touzi, of whom one Jhingoor Mahto was one. The petitioner. Sheo Prasad Mahto claims to be another co -sharer landlord having one -fifth share in the proprietary interest of the intermediaries. In 1961 the Basbitta Hat was settled by the authorities with Sri Jhingoor Mahto for a period of three years in pursuance of Section 7 -C of the Bihar Land Reforms Act (hereinafter referred to as the Act) read with Rule 7 -P of the Bihar Land Reforms Rules 1951(herein -after referred to as the Rules). The settlement with Jhingoor Mahto was later on extended upto the 31st March, 1966, on a reserve lama of Rs. 1,000/ -. When the question of settlement for 1966 -67 came up before the authorities, the Anchal Adhikari Majorganj, published a notice to the effect that the Hat will be settled by public auction on the 21st February, 1966. An objection was filed by the ex -proprietors on the ground that the settlement of the Hat should not be made by public auction but that it should be made with one of them as required by the Act. This petition was, however, rejected and then the Hat was settled for 1966 -67 with the Mukhiya of the Gram Panchayat for Rs. 1,000/ -. Opposite party No. 2 is alleged to be a lessee of the Mukhiya.

(3.) The main question for consideration here is whether the authorities were bound to give first preference to any one of the ex -intermediaries in making the settlement of the Hat for the year l,96667. For a consideration of this question it is necessary to refer to certain provisions of the Act and the Rules. Section 7 -C of the Act says that whenever it is intended to settle at any time after the first day of January; 1960, any hat or bazar or mela, on any land which, belonged to the exintermediaries, the prescribed authority shall, subject to the rule made in this behalf in the first instance invite application for the purpose from the outgoing intermediary or his heirs whose names have, been registered in the office of the Collector. The Explanation to that, Section says that if there are two or more such intermediaries or heirs, the prescribed authority may settle the Hat with such of them as appear to be most suitable. Sub -section (2) of Section 7 -C expressly says that the prescribed authority may settle the Hat with any other person only if any of the ex -intermediaries either fails to apply for settlement or refuses to take the settlement in accordance with the conditions and terms offered to him. The scheme of this Section is very clear. In Section 7 -B the Legislature expressly stated that the right to hold Hat on the lands of the intermediaries shall vest in the State but by way of concession to these ex -intermediaries Section 7 -C gave them the right of first refusal. The authorities were required to register their names and offer the settlement of the Hat to them in the first instance and the right to settle with any other person arises only when the ex -intermediaries do not take such' settlement. It is true that Section 7 -C says that the settlement shall be made in accordance with the rules made under the Act but no provision in the Rules can take away the right of the ex -intermediary to claim first preference as regards the settlement of the Hat. The Rules should be so construed as to effectuate the primary purpose for which Section 7 -C was insetted.