This Act may be called the Bihar Privileged Persons Homestead Tenancy Act, 1947.

(2) It extends to the whole of the State of Bihar.

(3) It shall come into force on such date]2 as the State Government may, by notification, appoint.

Notes and comments. Whole of the State of Bihar, would mean the earstwhile Bihar when Jharkhand was its integral part. After rearrangements of the States Jharkhand got separate identity.

Object of the Act. The Act is intended by State Legislature to improve status of weaker sections of society, such as, labourers and artisans who have either no land or hold very little land of their own such persons live either in structures built by themselves on lands temporarily or in houses built by landlords on their own land. Provision has been made in Act for fixation of fair and equitable rent payable by such persons. It also provides statutory mechanisms for equitable rent payable to such persons and protection against illegal and unreasonable ejectment of privileged persons and privileged tenants. Baij Nath Upadhya v. State of Bihar, 2007 (4) BBCJ 545 : 2008 (1) PLJR 39.

Since the Act has been enacted to protect interest of weaker sections, proceeding is to be disposed of in a summary manner but it does not mean that it should be done in derogation of laid down procedure. Grant of parcha results in adversely affecting rights of person to whom land belongs and it can not be done without following procedure prescribed in law. Om Prakash Singh v. State of Bihar, 2004 (2) PLJR 621 : 2003 (3) BLJ 12 : 2004 (1) BBCJ 245 : 2003 (2) BLJR 1523 : 2004 AIR (Pat). 95. The procedures have obviously been made to protect the weakers from financial load.

In this Act, unless there is anything repugnant in the subject or context

(a) building includes a house, shed, but and any other structure whether of masonry bricks, wood, mud, metal, bamboo, khar or any other material but does not include the land on which it stands;

(b) Collector includes any officer appointed by the State Government to discharge all or any of the functions of a Collector under this Act;

(c) holding means a parcel of homestead held by a privileged tenant and forming the subject of a separate tenancy;

(d) homestead means any land which is held on lease or used with the consent, express or implied, of the landlord for residential purposes and includes any building erected thereon, together with any Sahan and Bariappurtenant thereto;

Homestead means any land which is held on lease or used with consent, express or implied of landlord for residential purposes and includes any building erected together with any Sahan and Bari appurtenant thereto. Baij Nath Upadhya v. State of Bihar, 2007 (4) BBCJ 545 : 2008 (1) PLJR 39.

(e) industrial establishment means

(i) an industrial establishment as defined in clause (ii) of Section 2 of the Payment of Wages Act, 1936 (IV of 1936), or

(ii) a factory as defined in clause (i) of Section 2 of the Factories Act, 1934 (XXV of 1934)3 or

(iii) a railway as defined in clause (4) of Section 2 of the Indian Railways Act, 1890 (IX of 1890);

(f) mahajan means a person whose business is money lending;

(g) permanent tenancy means a tenancy which is heritable in the same manner as any other immovable property and which is transferable subject to the provisions of this Act;

(h) prescribed means prescribed by Rules made under this Act;

4[(i) privileged persons means a person

(a) who is not a proprietor, tenure-holder, under tenure-holder or Mahajan; and

(b) who, besides his homestead, holds no other land or holds any such land not exceeding one acre;

but does not include any person who has come into possession of the homestead land in contravention of the provisions of Section 20 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 (Bihar Act XIV of 1949) or Section 46 of the Chotanagpur Tenancy Act, 1908 (Bengal Act VI of 1908) or Section 49-C of the Bihar Tenancy Act, 1885 (Act VIII of 1885.)

In the case of Baijnath Upadhyaya the High Court of Patna explained the meaning of the term permanent Tenancy and said, permanent tenancy means a tenancy which is heritable in same manner as any other immovable property and which is transferable subject to provisions of this Act, Baij Nath Upadhya v. State of Bihar, 2007 (4) BBCJ 545 : 2008 (1) PLJR 39.

(j) privileged tenant means a privileged person who holds homestead under another person and is or but for a special contract would be, liable to pay rent for such homestead to such person;

(k) rent means whatever is lawfully payable or deliverable in money or in any other form by a privileged tenant to his landlord on account of the use or occupation of the homestead held by such tenancy; and

(l) all words and expressions used but not defined in this Act and used in the Bihar Tenancy Act, 1885 (VIII of 1885) or in the Chotanagpur Tenancy Act, 1908 (Bengal Act VI of 1908), shall in respect of the areas to which the Chotanagpur Tenancy Act, 1908 (Bengal Act VI of 1908) applies, have the meanings assigned to them in that Act and, in respect of the other areas, the meaning assigned to them in the first mentioned Act.

Provisions of Act do not apply to any land situated within Municipality or Notified Area provided that if any area in which a privileged person has acquired any right under the Act, is subsequently converted into an area under Municipality or Notified Area, he shall not be divested or deprived of his right in homestead. No suit can be filed to vary or set aside any such order except on ground of fraud or want of jurisdiction. Yasoda Devi v. Ramanand Sah, 2010 (4) PLJR 491.

Thus, the High Court made it clear that no doubt the land situated within Municipal Area is exempted from operation of this Act, but if the municipality itself is created after the privileged tenant acquires some right under this Act then the provisions of exemption will not apply. The intention of provisions is, therefore, clear that the exemption clause will not defeat any right already acquired.

In the case of Lal babu Sidiqui the Patna High Court made it clear that once appellant-defendant claimed title as a privileged tenant in terms of provisions, relationship of landlord and tenant came to an end. It was obligatory on part of plaintiff landlord to file a suit in terms of Section 18. In absence of a decree passed in terms of a suit filed u/s. 18 which would lie only on a limited ground for want of jurisdiction or fraud, respondent-plaintiff was not entitled to have a decree in his favour, Mehar Chand Das v. Lal Babu Siddique, 2007 (4) BBCJ 119 : (2007) 14 SCC 253 : AIR 2007 SC 1499.

Issuance of Basgit Parcha, Karamchari has no power to conduct enquiry. Enquiry can be conducted only by Collector or by an Officer not below the rank of Circle Officer. Impugned order quashed, Baij Nath Upadhya v. State of Bihar, 2007 (4) BBCJ 545 : 2008 (1) PLJR 39.

Petitioner not using land as his homestead but using it for commercial purpose. Petitioner obtained order from Anchal Adhikari which was set aside on merit by Collector. Though Collector has no jurisdiction to decide matter on merit but if his order is set aside an illegal order will be restored. Since petitioner is not a privileged person hence order of Collector is not set aside. Petition dismissed. Narayan Sah v. State of Bihar, 2004 (2) BLJ 299 : 2004 (3) BBCJ 104 : 2004 (3) BLJR 1748 : 2004 (3) PLJR 424.

Obviously the High Court took care that illegality should not be perpetuated and for that purpose refused to interfere in the order of the Collector.

In the case of Shyambihari Prasad the High Court held, a person who is having a number of shops in market, he cannot be treated as a privileged person and is not entitled to receive Parwana from the State. Defendant had no authority to continue in possession of the land. Shyam Bihari Prasad v. Kalawqti Devi, 2002 (3) PLJR 197 : 2002 (2) BBCJ 375.

Faced with rival claims Anchal Adhikari is required to adjudicate where both sides claim status of privileged tenant and deny status of landlord. Once it is found that person alleged to be a landlord is really in same position as person who claims to be privileged tenant, then benefit of Act is not available to privileged tenant. Gopal Pandit v. State of Bihar, 2000 (3) PLJR 324.

In order to claim protection under Act, a person must be a privileged person first and if he is proprietor or tenure holder or under tenure-holder or Mahajan, he cannot be privileged person. Om Prakash Singh v. State of Bihar, 2004 (2) PLJR 621 : 2003 (2) BLJ 12 : 2004 (1) BBCJ 245 : 2003 (2) BLJR 1523.

Privileged person and privileged tenant. Order passed by Collector without any proper enquiry as required under law nor notices were issued to land-holders. Collector, under the Act, before granting Parcha has to find out whether claimant was a privileged person as defined under Section 2(i) and privileged tenant as defined under Section 2(j). In absence of due observance of statutory requirements, order granting Purchas has to be declared illegal and without jurisdiction. Surya Narain Mishra v. State of Bihar, 1998 (2) BLJ 94 : 1998 (2) BLJR 924 : 1998 (1) PLJR 561.

Cancellation of Basgit Parcha granted in favour of petitioner by Aanchal Adhikari. Under the Act a difference has been brought between two expressions Collector and Collector of district . Impugned order passed by Aanchal Adhikari in exercise of power u/s. 21 was ultra vires provisions of the Act and without jurisdiction and quashed. Mohd. Quayain v. State of Bihar, 1996 (2) BLJ 670 : 1997 BBCJ 282.

Privileged person. A person already in possession of a homestead cannot claim or acquire right in another land as a privileged person. Privileged person is a person who has homestead and excluding it either holds no land or holds land not exceeding one acre. Nagina Sah v. Rajpati Devi, 1979 BBCJ 245 : 1979 BLJ 236.

5[2-A. Act to apply notwithstanding contrary to provisions in other enactments. The provisions of this Act shall have effect, notwithstanding anything contained to the contrary in any law for the time being in force.]

The Supreme Court made it clear that the Act is self contained. Even if some provisions are found somewhere to the contrary then in that case the law contained in this Act shall prevail. See also AIR 1951 SC 115.

This Act shall not apply to

(a) any land or building, residential or otherwise

(i) appertaining to an industrial establishment;

(ii) vested in the Government or a local authority; and

(b) any land situated within

(i) any area which has been, or may hereafter be, constituted a municipality or notified area under the provisions of the Bihar and Orissa Municipal Act, 1922 (B. & O. Act VII of 1922)6 or a Union Committee constituted under Section 38 of the Bihar and Orissa Local Self-Government Act of 1885 (Bengal Act III of 1885);

7[(ii) vested in the Government except homestead deemed to have been acquired by the State Government under sub-section (2) of Section 17A, or a local authority;]

(iii) any other area which is declared by the State Government by notification issued in this behalf to be a place of business or fair;

8[Provided that if any area in which a privileged person or a privileged tenant has acquired any right in his homestead under this Act, is subsequently converted into an area mentioned in sub-clause (1) of clause (b), the privileged person or the privileged tenant, as the case may be, shall not be divested or deprived of his right in the homestead.]

Restrictions on application of the Act. Certain restrictions have been imposed on application of this Act, but those restrictions are with respect to status of the property and the person. Therefore, definition of the privileged person has not been affected by Section 3. According to this section provisions of Act do not apply to any land situated within Municipality or Notified Area provided that if any area in which a privileged person has acquired any right under the Act, is subsequently converted into an area under Municipality or Notified Area, he shall not be divested or deprived of his right in homestead. No suit can be filed to vary or set aside any such order except on ground of fraud or want of jurisdiction. Yasoda Devi v. Ramcuumd Sah, 2010 (4) PLJR 491.

Formerly, the Act did not apply to municipal area. By virtue of Act 9 of 1970 it was extended to also to the property vested in the Government except homestead deemed to have been acquired by the State Government under sub-section (2) of Section 17A, or a local authority.

Provided that if any area in which a privileged person or a privileged tenant has acquired any right in his homestead under this Act, is subsequently converted into an area mentioned in sub-clause (1) of clause (b), the privileged person or the privileged tenant, as the case may be, shall not be divested or deprived of his right in the homestead.

Subject to the payment of such rent as may be agreed upon between a privileged tenant and his landlord, or where there is no contract or no valid contract in respect of rent or where the rent contracted is alleged to be unfair or inequitable, such rent as may be fixed by the Collector under the 9[proviso to sub-section (3) of Section 17-A], a privileged tenant shall have a permanent tenancy in the homestead held by him at any time continuously for a period of one year.

Grant of Parcha. Halka Karamchari cannot conduct any enquiry. Enquiry should be conducted by Collector himself or by an officer not below the rank of Circle Inspector. Suryadeo Yadav v. State of Bihar, 2005 (2) BLJ 160.

The requirement of the Act is that the Collector is empowered to grant parcha. Enquiry is not the intendment of the provisions, nor is it an end. Enquiry is a mere mode to reach a particular conclusion.

(1) if any privileged tenant has been ejected by his landlord from his homestead or any part thereof, within one year before the date of the 10[commencement of the Bihar Privileged Persons Homestead Tenancy (Amendment) Act, 1952 (Bihar Act XXIII of 1952)] otherwise than in due course of law, such tenant shall, for the purposes of Section 4, be deemed to have held such homestead or part thereof, as the case may be, continuously for a period of one year before the 10[commencement of the Bihar Privileged Persons Homestead Tenancy (Amdt.) Act, 1952] and he may apply to the Collector for the restoration of his possession over the homestead or part thereof from which he has been so ejected.

11[(2) The Collector may, on receipt of an application under sub-section (1) or on his own motion, after making such enquiry as he deems fit, order that the Privileged tenant shall be put in possession of the homestead or part thereof, from which he has been so ejected.]

Grant of Parcha Halka Karamchari cannot conduct any enquiry. Enquiry should be conducted by Collector himself or by an officer not below the rank of Circle Inspector. Suryadeo Yadav v. State of Bihar, 2005 (2) BLJ 160.

Who can apply. The provisions under Sub-section (2) was for the first time inserted by the Bihar Privileged Persons Homestead Tenancy (Amendment) Act, 1952 (Bihar Act XXIII of 1952) According to this provision proceeding under the Act cannot be initiated on the basis of application of a third party who is nothing more than a busy body. Order granting Parcha in favour of respondent under Section 5(1) cannot be entertained in cases of ejectment after 7.12.1952. Thakur Girja Natulan Sinha v. State of Bihar, 1985 PLJR 415.

6. [Deleted by Amdt. Act 11 of 1989.]

Suit can be entertained in terms of Section 18 of the Act on limited ground of want of jurisdiction or fraud on part of the Collector. Collector is a necessary party in such suit. Mehar Chand Das v. Lal Babu Siddique, 2007 (4) BBCJ 119 (SC) : (2007) 14 SCC 253 : AIR 2007 SC 1499.

Circle Officer has no power to review his own order granting a Parcha in favour of a privileged tenant. Act and Rules lay down procedure to be followed and necessary enquiries to be made, before a Parcha can be issued. Proceedings were in nature of a quasi judicial proceeding. If that order was held to be illegal and was quashed, it would result in revival of order, which was also illegal. No infirmity in order passed by Writ Court. Latif Mian v. State of Bihar, 1998 (3) BLJ 517 : 1998 (2) PLJR 723.

7. [Deleted by Amdt. Act 11 of 1989.]

(1) A privileged tenant shall be liable to ejectment on the following grounds and not otherwise, namely

(a) on the ground that he has used the holding or any part thereof in a manner which renders the holding unit for the purposes of the tenancy.

(b) on the ground that he has failed to pay the rent of the holding for two years:

Provided

firstly, that no privileged tenant shall be so ejected except in execution of an order for ejectment passed by the Collector 12[x x x]

secondly, that no such order passed on the ground referred to in clause (b) shall be executed, if the full amount of the arrears of rent together with interest, if any; or where there has been a decree for such arrears, the amount payable under such decree is deposited with the Collector within three months from the date on which the order was signed;

thirdly, that before executing an order for ejectment, the Collector shall grant such time as he may consider reasonable to the privileged tenant for removing the materials of the building, if any, erected by the Privileged tenant on such holding or any part thereof;

13[fourthly, that no privileged tenant shall be ejected unless he holds at least one-tenth of an acre, being land in the village in which his homestead is situate, which is, in the opinion of the Collector suitable for erecting a building for residential purpose.

(2) The following shall not be deemed to render any holding unfit for the purposes of the tenancy, namely

(a) the planting of trees and bamboos and growing of crops on a portion of the holding;

(b) the manufacture of bricks and tiles for domestic purposes of the privileged tenant and his family; and

(c) the digging of wells intended to provide supply of water for drinking or for domestic purposes of the privileged tenant and his family.

(3) & (4) [Deleted by Amdt. Act 11 of 1989.]

(5) If a privileged tenant has been ejected by his landlord 14[or any other person] from his homestead or any part thereof, otherwise than in accordance with the provision contained in sub-section (1), then the tenant may apply to the Collector for restoration of his possession over the homestead or part thereof from which he has been so ejected.

15[(6) The Collector may on receipt of an application under sub-section (5), or on his own motion, after making such enquiry as he deems fit, order that privileged tenant shall be put in possession of the homestead or part thereof from which he has been so ejected.]

16[(7) If a privileged tenant is threatened with unlawful ejectment from his tenancy or any portion thereof by his landlord, the Collector may, of his own motion or on application made in this behalf by the privileged tenant initiate a proceeding for preventing the landlord from ejecting the privileged tenant, and may, after hearing the parties, for which due notice shall have been given to them or even after ex-parte hearing in cases of emergency, by an order, giving reasons therefor in writing, restrain the landlord from ejecting the privileged tenant;

Provided that where an ex-parte order has been made, the Collector shall, as soon thereafter as possible hear, the parties after giving due notice to them and may, for reasons to be recorded in writing confirm the order but, if after such hearing he finds that there is no reasonable grounds for such owner he will set aside the same and reject the prayer.

(8) If the person against whom an order has been made under sub-section (6) fails to carry out the order of the Collector within such time, if any, as may be specified in the order: or if the person against whom an order has been made under sub-section (7) disobeys that order, he shall be punishable with imprisonment which may extend to six months or with fine which may extend to one thousand rupees or with both.

(9) An offence under sub-section (8) shall be cognizable for which any Police office may arrest without warrant.

(10) No court shall take cognizance of an offence punishable under sub-section (8) except with the previous sanction of the Collector.

Explanation. For the purpose of sub-sections (5) and (7) landlord includes the person under whom the privileged tenant held his homestead prior to its acquisition by the State Government under sub-section (2) of Section 17A.]

Under Sub-section (1) the Acts provides for ejectment of the privileged tenant. It provides that a privileged tenant may be evicted only on the two grounds enumerated under Section 8. It includes ground of default in payment of rent by the tenant. The grounds of default have been put to certain restrictions. The fourth proviso was inserted by the Amendment Act 23 of 1951.

Sub-letting of the tenancy. A privileged tenant can sub-let its holding to A from the privileged tenancy privileged person to use it for residential purpose. Change in use The Act is to protect a residential tenancy. Therefore, parcha holder who has constructed shops has no right to stay on the land. He comes out of the definition of a privileged tenant. The Collector will realize rent if due. Petition dismissed with direction to Collector to realize arrears of land revenue. Rajendra Sah v. State of Bihar, 2006 (3) BLJ 1 : 2006 (3) BBCJ 253.

Vendor cannot pass on a higher title than what he himself had. The vendees have acquired title to property alongwith encumbrances created by effect and force of order in year 1991. Alienation in favour of vendees is a mala fide act to nullify effect of order passed in year 1991. Md. Sabir Hussain v. State of Bihar, 2002 (4) PLJR 309.

Difference between Privileged person and privileged tenant. Order passed by Collector without any proper enquiry as required under law nor notices were issued to land-holders. It has been held in the case of Surya Narayan Mishra that Collector, under the Act, before granting Parcha has to find out whether claimant was a privileged person as defined under Section 2(i) and privileged tenant as defined under Section 2(J). In absence of due observance of statutory requirements, order granting Purchas has to be declared illegal and without jurisdiction. Surya Narain Mishra v. State of Bihar, 1998 (2) BLJ 94 : 1998 (2) BLJR 924 : 1998 (1) PLJR 561.

Grant of Basgit parcha made without Collector either conducting an enquiry. Grant of Basgit parcha valuable right of landlord is lost. Procedures laid down under Act and Rules framed thereunder have to be followed. Grant of Basgit parcha not being in terms of Rules 5 is set aside. Deoraj Thakur v. State of Bihar, 1993 (2) PLJR 598.

No transfer made by a privileged tenant of his right in his holding or in any portion thereof, by private sale, gift, will, mortgage, lease or any contract or agreement shall be valid to any extent except as provided in Sections 10 to 17.

A privileged tenant may sublet his holding or any portion thereof to any privileged person to use it for residential purposes.

Section 9 imposes conditions against any transfer of the privileged tenancy. It lays down that any such transfer may be made only as per the laws laid down by Sections 9 to 17. It means according to Section 9 Sections 10 to 17 are related to the transfer of the privileged tenancy.

The High Court of Patna has directed two things, viz., 1. A privileged tenant can sub-let its holding to any privileged person, 2 to use it for residential purpose. The Court said, parcha holder who has constructed shops has no right to stay on the land. Petition dismissed with direction to Collector to realize arrears of land revenue. Rajendra Sah v. State of Bihar, 2006 (3) BLJ 1 : 2006 (3) BBCJ 253.

(1) A privileged tenant may enter with any privileged person into a complete usufructuary mortage in respect of his holding or any part thereof for any period not exceeding seven years:

Provided that the mortgage so entered into shall be registered under the Indian Registration Act, 1908 (XVI of 1908).

(2) A privileged tenant's power to mortgage, his holding or any part thereof shall be restricted only to one form of mortgage, namely, a complete usufructuary mortgage.

(3) In this Section the expression complete usufructuary mortgage means a transfer by a privileged tenant of the right of possession in his holding or any part thereof and in any building erected by him thereon, for the purpose of securing the payment of money or the return of grains advanced or to be advanced by way of loan upon the condition that the loan, with all interest thereon, shall be deemed to be extinguished by the profits arising from the land during the period of the mortgage.

Mortgage of the privileged tenancy. Section 11 permits mortgage of such property, but to the following conditions

the mortgage should be usufructuary, the mortgage must be in between two privileged persons, the mortgage may be either be for the whole tenancy or even any portion of it.

the mortgage must be maximum for a period of seven years. In all cases the mortgage must be by registered document, Under Sub-section (3) term mortgage has been defined also which is an ordinary juristic meaning.

A privileged tenant may with the written permission of the Collector transfer his holding or any portion thereof by way of private sale, gift or will to any privileged person to use it for residential purposes.

Sale with permission of the Collector. Section 12 of the Act permits private sale, gift, will but with permission of the Collector, but purpose of the transaction must be for residential purposes.

(1) If the mortgagee of a holding or any part thereof under Section 11 is legally liable to pay the rent of mortgaged property to the landlord and fails to do so, the mortgagor may deposit it with the Collector the arrears of rent together with the costs necessary for the transmission of the same to the landlord and may apply to the Collector for the ejectment of the mortgagee and the restoration of the mortgaged property to the mortgagor.

(2) On receipt of such an application the Collector, after making such enquiry as he thinks fit, may, if he is of the opinion that the mortgagee has wilfully neglected to pay the amount of rent in arrear, eject the mortgagee and restore the mortgaged property to the mortgagor, and the mortgagee shall thereupon be deemed to have terminated.

(3) The Collector shall cause to be transmitted to the landlord any sum deposited under sub-section (1).

No transfer by a privileged tenant in contravention of the provisions of Section 9 shall be registered or in any way recognised as valid by any Court, Civil Criminal or Revenue.

(1) If a transfer of his holding or any portion thereof is made by a privileged tenant in contravention of the provisions of Section 9 and if a transferee takes possession of the holding or any portion thereof in pursuance of such transfer, the Collector may, of his own motion or on an application made in that behalf, after recording an order in writing, eject the transferee from the transferred property:

Provided that the transferee whom it is proposed to eject is given an opportunity of showing cause against the order of ejectment.

(2)(a) When the Collector has passed an order under sub-section (1), he shall pass a further order restoring the transferred property to the transferor or to his heir or legal representative.

(b) If the transferor or his heir or legal representative cannot be found within six months from the date of the order of restoration passed under clause (a) or is unwilling to take possession of the transferred property, the Collector may declare, the right of settlement of such property to be vested in the landlord:

Provided that before making such a declaration, the Collector shall grant such time as he considers reasonable to such transferor or his heir or legal representative, as the case may be, for removing the materials of the building, if any, erected by him on such property.

Act is intended to improve lot of weaker sections of society and provide them land so that they can have their own dwellings. Collector has every power to suomotu re-open the matter and cancel a Parcha obtained by practicing fraud. Shila Devi v. State of Bihar, 2002 (1) BLJ 735 : 2002 (1) PLJR 638.

Notwithstanding anything contained in this Act, no decree or order shall be passed by any Court for the sale of the right of a privileged tenant in his holding or in any portion thereof, nor shall any such right be sold in execution of any decree or order except a decree for an arrear of rent which has accrued in respect of the holding.

If an application for the sale of privileged tenant's right in his holding is made in execution of a decree against such privileged tenant in respect of the rent of such holding, the Court executing the decree shall allow the privileged tenant reasonable time in which to pay the amount due, and if an application is made to the Collector under sub-section (1) of Section 13 before the execution of the decree, the Collector shall inform the Court that such application has been made, and the decree shall not be executed until the Collector has disposed of the application.

17[17-A. Privileged tenant having permanent tenancy in his homestead to hold it under the State Government. (1) Subject to the other provisions contained in this Act, a privileged tenant having permanent tenancy in homestead under Section 4 shall hold the homestead under the State Government and the amount of rent payable to the landlord by the privileged tenant in respect of the homestead shall be payable by the privileged tenant to the State Government.

(2) The homestead which a privileged tenant holds under the State Government under sub-section (1) shall, for the purpose of payment of compensation to the landlord under whom he held it, be deemed to have been acquired by the State Government under this Act.

(3) The amount of compensation payable to the landlord by the State Government under sub-section (2) shall be ten times of the rent payable to the landlord by the privileged tenant in respect of the homestead which shall be paid to the landlord by the State Government in cash in one instalment:

Provided that where there is no contract or no valid contract between landlord and his privileged tenant as to the rent payable for the homestead or where the rent contracted is, in the opinion of the Collector unfair or inequitable, the Collector shall settle fair and equitable rent of the homestead after making such enquiry as he may deem fit and after taking into consideration the importance of the area where such homestead is situated and the rent, if any, prevailing in that area for other similar homesteads, before the amount of compensation payable to the landlord by the State Govt., is assessed.

18[(4) The rent settled by the Collector under the proviso to sub-section (3) shall always be in cash and take effect from such date as the Collector may fix;

(5) The rent which was payable to the State Government by the privileged tenant under sub-section (1) or the rent settled by the Collector under the proviso to sub-section (3) shall be the rent fixed in perpetuity;

(6) The Collector on his own motion, or on any information received by him that the rent fixed by the Circle Officer is not proper, may review the orders passed by the Circle Officer regarding the fixation of such rent and may pass such orders redetermining the rent, as he deems fit.

In year 1970 by Amendment Act 9 of 1970 permanent privileged tenancy was kept out of the control of the landlord. The provisions now are that Subject to the other provisions contained in this Act, a privileged tenant having permanent tenancy in homestead under Section 4 shall hold the homestead under the State Government and the amount of rent payable to the landlord by the privileged tenant in respect of the homestead shall be payable by the privileged tenant to the State Government.

In the case of Mehrchand Daas the apex Court said, once appellant-defendant claimed title as a privileged tenant in terms of provisions, relationship of landlord and tenant came to an end. It was obligatory on part of plaintiff landlord to file a suit in terms of Section 18. In absence of a decree passed in terms of a suit filed u/s. 18 which would lie only on a limited ground for want of jurisdiction or fraud, respondent-plaintiff was not entitled to have a decree in his favour. Mehar Chand Das v. Lai Babu Siddique, 2007 (4) BBCJ 119 : (2007) 14 SCC 253 : AIR 2007 SC 1499.

19[ The orders passed under this Act shall be final. Subject to the provisions of Section 21, all orders passed by the Collector in any proceeding under this Act shall be final, and no suit shall lie in any Civil Court to vary or set aside any such order except on the ground of fraud or want of jurisdiction.

Section 18 was substituted by Amendment Act 11 of 1989 which grants finality to the orders passed under the Act. But section 21 gives unfettered power to the Collector of the District to call for any record even after final disposal examination. This power is supervisory in nature.

But the provisions of section will not apply to any land situated within municipal area. In the case of Yaosda Devi the High court said, provisions of Act do not apply to any land situated within Municipality or Notified Area provided that if any area in which a privileged person has acquired any right under the Act, is subsequently converted into an area under Municipality or Notified Area, he shall not be divested or deprived of his right in homestead. No suit can be filed to vary or set aside any such order except on ground of fraud or want of jurisdiction. Yasoda Devi v. Ramanand Sah, 2010 (4) PLJR 491.

Suit can be entertained in terms of Section 18 of the Act on limited ground of want of jurisdiction or fraud on part of the Collector. Collector is a necessary party in such suit. Mehar Chand Das v. Lal Babu Siddique, 2007 (4) BBCJ 119 : (2007) 14 SCC 253 : AIR 2007 SC 1499.

In the case of Viajay Shanker Choubey the High Court held, a parcha issued without jurisdiction becomes non-est in eye of law. When it has been shown that order of issuance of parcha was not only tainted with fraud but also without jurisdiction then it cannot be said that a third case has been found by Appellate Court. Vijay Shankar Choube v. Ram Sewak Kuer, 2002 (1) BLJ 703 : 2001 (4) PLJR 39.

If a declaratory involves any consequential relief, plaintiff must seek this consequential relief, otherwise suit would be barred. Declaration that parcha was fraudulent and issued without jurisdiction by State authority amounted to its cancellation. Neither parcha was filed before Lower Court nor it was proved by any documentary/oral evidence that parcha was ever issued after proper enquiry regarding possession of suit house by defendant. Appellate Court rightly held that suit was not barred. Ramswaroop Tanti v. Sadanand, 2001 (2) BBCJ 374 : 2001 (3) PLJR 159 : 2001 (2) BLJR 1225.

Cancellation of Basgit Parcha granted in favour of petitioner by Aanchal Adhikari. Under the Act a difference has been brought between two expressions Collector and Collector of district . Impugned order passed by Aanchal Adhikari in exercise of power u/s. 21 was ultra vires provisions of the Act and without jurisdiction and quashed. Mohd. Quayam v. State of Bihar, 1997 (2) BLJ 670 : 1997 BBCJ 282.

Once appellant-defendant claimed title as a privileged tenant in terms of provisions, relationship of landlord and tenant came to an end. It was obligatory on part of plaintiff landlord to file a suit in terms of Section 18. In absence of a decree passed in terms of a suit filed u/s. 18 which would lie only on a limited ground for want of jurisdiction or fraud, respondent-plaintiff was not entitled to have a decree in his favour. Mehar Chand Das v. Lal Babu Siddique, 2007 (4) BBCJ 119 : (2007) 14 SCC 253 : AIR 2007 SC 1499.

The provisions of this Act shall have effect notwithstanding anything contained in any other law or anything having the force of law; and anything in any such law or anything having the force of law which is inconsistent with any of the provisions of this Act, shall, to the extent of inconsistency, be deemed to have been repealed.

(1) The State Government may make Rules not inconsistent with this Act for carrying out the purposes of the Act.

(2) In particular and without prejudice to the generality of the foregoing power, the State Government may make Rules with respect to the following matters

(a) the form of applications under sub-section (1) of Section 5, sub-section (1) of Section 6, first proviso to sub-section (1) of Section 8, sub-section (1) of Section 13 and sub-section (1) of Section 15, and the particulars to be contained in such applications;

(b) the procedure to be followed in dealing with applications referred to in clause (a) and in inquiries about matters arising out of such applications.

20[(3) Every Rule made by the State Government under this Act shall be laid, as soon as may be after it is made, before each House of the State Legislature, while it is in session, for a total period of fourteen days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity or anything previously done under the rule.]

21[ Notwithstanding anything to the contrary contained in any judgement, decree or order of any Court or authority; the Collector of the district may on his own motion or on the application of any party, or on reference being made by any subordinate authority, call for and examine record of any case decided or proceeding taken by the Collector under the Act for satisfying himself as to the regularity of the proceeding or to the correctness, legality or propriety of an order passed by the Collector under the Act in the case or proceeding, and may after, allowing the parties concerned opportunity of being heard, direct that the case or the proceeding be reopened and disposed of afresh in accordance with the provisions of this Act.

Powers of the Collector. After the introduction of amendment in Section 21, Collector of a District was conferred supervisory power as well as power to call for and examine record of any case decided by Collector under the Act. Order of Collector under the Act was made subject to order of Collector of district. Collector of District can direct Collector under the Act to reopen a case and dispose it in accordance with provisions of the Act. Chandreshwar Singh v. State of Bihar, 2008 (4) PLJR 138.

Nature of the Proceeding. Proceeding under the Act is quasi-judicial proceeding. Order passed by Collector of District must be a reasoned order. Collector of District as well as a Circle Officer are required to pass orders in accordance with provisions of Act and Rules. Chandreshwar Singh v. State of Bihar, 2008 (4) PLJR 138.

Illegal granting of Parcha. Even if order impugned is held to be bad or illegal Writ Court may decline to exercise its discretion and let order stand because its setting aside would lead to a situation that is qaite illegal. Rajendra Sah v. State of Bihar, 2006 (3) BBCJ 253.

Cancellation of settlement. Assuming that revision is not provided under Act, even then when a Court in exercise of revisional power set aside illegal order that would not be interfered with by High Court in extra-ordinary writ jurisdiction. Settlement in favour of petitioners was collusive, void and non-est in law. Bikrama Thakur v. State of Bihar, 2004 (2) BLJ 73 : 2004 (2) PLJR 265.

Use of land not for residential purpose. Petitioner not using land as his homestead but using it for commercial purpose. Petitioner obtained order from Anchal Adhikari which was set aside on merit by Collector. Though Collector is has no jurisdiction to decide matter on merit but if his order is set aside an illegal order will be restored. Since petitioner is not a privileged person hence order of Collector is not set aside. Petition dismissed. Narayan Sah v. State of Bihar, 2004 (2) BLJ 299.

Ouster of jurisdiction. Collector cannot decide matter on merit. At the most he can set aside an illegal order and remit the same for fresh consideration. Narayan Sah v. State of Bihar, 2004 (2) BLJ 299.

Provisions. Whether retrospective. Section 21 does not have retrospective application. Validity of proceeding and right of parties have to be determined with reference to date of proceeding and any amendment conferring power u/s. 21 cannot be applied with retrospective effect. Existence of alternative remedy cannot be a ground to non-suit the petitioner. Om Prakash Singh v. State of Bihar, 2004 (2) PLJR 621 : 2004 (1) BBCJ 245 : 2003 (3) BLJ 12 : 2003 (2) BLJR 1523.

Section 21 confers power on Collector to reopen proceeding and remit matter back to Anchal Adhikari for fresh disposal after setting aside order of Anchal Adhikari rather than allowing revision application. Jagdish Rai v. State of Bihar, 2003 (3) PLJR 829.

Cancellation of Basgit Parcha granted in favour of petitioner by Aanchal Adhikari. Under the Act a difference has been brought between two expressions Collector and Collector of district . Impugned order passed by Aanchal Adhikari in exercise of power u/s. 21 was ultra vires provisions of the Act and without jurisdiction and quashed. Mohd. Quayam v. State of Bihar, 1997 (2) BLJ 670 : 1997 BBCJ 282.

The State Government may, from time to time, give to the Collector of the district such directions of general or special nature as the State Government may deem fit.

The powers under this section is the inherent supervisory power of the State. The Board of Revenue is vested the powers of superintendence in all revenue matters in the state. The Apex Court in the case of Surendra Pal Singh clarified that this power in invokable to both functions of the sub-ordinate Revenue Courts Surendra Pal Singh v. Board of Revenue, AIR 1994 SC 1439 : 1994 AIR (SCW) 874 : 1997 (3) Crimes 6 (SC) : (1993) 3 JT 465 : (1993) 2 SCALE 889.

1. This Act received the assent of the Governor-General on the 17th Januaury, 1948, and the assent was first published in the Bihar Gazette of the 18th February, 1948.

2. This Act came into force on 25th February, 1948 vide Notification No. 1591-111-11-48, dated 21.2.1948.

3. Now, see Factories Act, 1948.

4. Subs. by Amdt. Act 11 of 1989.

5. Ins. by Act 42 of 1951.

6. Now, Municipal Act, 2007.

7. Subs. by Act 9 of 1970.

8. Ins. by Act, 13 of 1973.

9. Subs. by Amdt. Act, 11 of 1989.

10. Subs. by Act 23 of 1952 for commencement of this Act .

11. Subs. by Act 33 of 1954.

12. Deleted by Amdt. Act 11 of 1989.

13. Ins. by Act 23 of 1951.

14. Ins. by Amdt. Act, 11 of 1989.

15. Ins. by Act 42 of 1951.

16. Ins. by Act 13 of 1973.

17. Ins. by Act, 9 of 1970.

18. Ins. by Amdt. Act 11 of 1989.

19. Subs. by ibid.

20. Ins. by Bihar Delegated Legislation Provisions Act, 2013 (Act 1 of 2014), vide, Sec. 25 of Bihar Gazette (Ext. Ord.) No. 37, dated 3.1.2014.

21. Ins. by Amdt. Act 11 of 1989.