Mahanth Ram Narain Gir v. State Of Bihar — 1978 DIGILAW 24 (PAT)

Judgment K. B. N. Singh, B. S. Sinha, J. 1. In all these 23 writ applications, the petitioner is the same and, as common question of law and fact arises, with consent of parties, they have been heard together and are being diposed of by this common order. 2. Forty-seven under-raiyats claiming bataidari rights in respect of the lands belonging to the petitioner filed an application under section 48-E of the bihar Tenancy Act (hereinafter referred to as the Act) relating to different parcels of jand appertaining to khata no.3, situate in village Sibsona, p. s. Halsi, in the district of Monghyr. The Land Refoms Deputy Collector, Jamui, respondent no.3, who has the power of a Collector for the purpose of section 48-E ana before whom the application was filed, constituted a Board under sub-section (3) of section 48-E of the Act and referred the dispute to it for settlement between the claimants (under-raiyats) and the petitioner. The Board, by a common order, dated the 4th May, 1975, found the claim of the under raiyats, in respect of fortyseven cases, to be false. A copy of the Boards report has been filed as Annexure i to the writ applications. On receipt of the recommendation of the Board, respondent no.3, by order dated the 24th May, 1975, issued directions for the hearing of the parties and for examination of the witnesses. On the 26th august, 1975, a petition was filed on behalf of the petitioner-landlord for local inspection. Thereafter, the D. C. L. R. (respondent no.3) held local inspection and also examined a number of witnesses and, finally, by his order dated the 26th december, 1975. found that the claim of the bataidars in respect of eight cases, viz. Betaidari Case nos.28, 42, 49, 20, 57, 37, 26 and 41 of 1974-75, was false,. with regard to the remaining forty cases, the D. C. L. R. (respondent no.3)accepted the claim of the bataidars, in disagreement with the finding of the Board, and declared their right of bataidari in respect of those cases. A copy of the common order passed by the D. C. L R. is Annexure 3 to all these writ applications. The petitioner filed an appeal against the aforesaid common order of the d. C. L. R. under section 48 E before the appellate authority in respect of twenty-four cases. A copy of the common order passed by the D. C. L R. is Annexure 3 to all these writ applications. The petitioner filed an appeal against the aforesaid common order of the d. C. L. R. under section 48 E before the appellate authority in respect of twenty-four cases. They were heard by the Additional Collector, who dismissed them by separate orders, dated the 20 th luly, 1977, which are more or less in the same terms. A copy of the order is Annexure 4 in each of the writ applications. The petitioner thereafter filed twenty-four writ applications out of which only twenty-three have been placed for hearing, the remaining one not being ready for hearing. 3. Shri Jugal Kishore Prasad II, learned counsel appearing for the petitioner, has urged the following points in support of the writ application: (i) The area of the plots being such larger than the area claimed by the bataidars, and there being no mention about the direction from which they laid claim, the identity of the land was vague and no valid or legal order could be passed in view of the vagueness of the area claimed. (ii) Respondent no.3 has not recorded any reason for the prima facie difference with the Boards finding before entering upon an inquiry in terms of sub-section (8) of section 48-E of the Act. (iii) Even in the final order passed by respondent no.3 or that passed by the Collector on appeal under section 48-F, no reason has been assigned for taking a different view than the one taken by the board for rejecting the claim of the bataidars. 4. The last two points raised by Shri Prasad may be taken up first. In order to appreciate the submission of learned counsel certain provisions of section 48-E of the Act may usefully be quoted. 4. The last two points raised by Shri Prasad may be taken up first. In order to appreciate the submission of learned counsel certain provisions of section 48-E of the Act may usefully be quoted. Where the Board fails in its endeavour to bring about an amicable settlement of the dispute between the parties, it has to follow the procedure as provided in sub section (7) of section 48-E, relevant portion of which reads as follows:- " (7) Where a Board does not succeed in bringing about an amicable settlement of the dispute, it shall make enquiry into the same, receive such evidence as it considers necessary, record its findings on the disputes and transmit the entire record of the proceeding forthwith to the Collector who may dispose of the proceeding in accordance with the terms of the findings. Where the Collector does not accept the finding of the Board, under sub section (7) he has to follow the procedure laid down in sub-section (8), and, on being satisfied about the under-raiyati claim, pass any of the orders mentioned under the three clauses (i), (ii) or (iii ). Relevant portion of sub-section (8), without the three clauses, may usefully be reproduced : (8) In case of disagreement with the report or the findings of the Board the Collector shall, after recording his reasons for such disagreement and after giving the parties concerned a reasonable opportunity of being heard, make such enquiry, if any, as he thinks necessary and on being satisfied that sub-section (9) lays down the modality of disposing of the matter under sub-sections (6), (7) or (8) of section 48-E of the Act by the Collector. It is in the following terms : (9) The order of the Collector under sub-section (6), (7) or (8) shall be in writing, and shall state the grounds on which it is made and specify the period which shall not exceed six months from the date of the order within which his order shall be carried out. " 5. It is manifest from the aforesaid provisions that where the Board does not succeed in bringing about a settlement of the dispute, it has to inquire into the matter and submit its finding together with the records of the proceeding to the Collector who "may dispose of the proceeding in accordance with the terms of the findings. " 5. It is manifest from the aforesaid provisions that where the Board does not succeed in bringing about a settlement of the dispute, it has to inquire into the matter and submit its finding together with the records of the proceeding to the Collector who "may dispose of the proceeding in accordance with the terms of the findings. " There cannot be any dispute that at this stage also the collector has to hear the parties before disposing of the proceeding, even if he is inclined to agree with the finding of the Board, as it is the parties who can point out legal intervening in the findings. A Bench decision of this Court in jai Ram Das Bhaiia V/s. State of Bihar, AIR 1977 Patna 315) has held : "the principle of natural justice, however, demands that even before the Collector chooses to dispose of the proceeding in agreement with the findings of the Board, the parties should be heard by him. The principle of audi alterant partem has to be followed not as a statutory provision but ex debito justitias. " Where the Collector agrees with the finding of the Board, the matter ends there, but in case he does not agree with the finding, then it is not sub-section (7) which comes into play but sub-ssction (8) of section 48-E of the Act The question is whether before proceeding uuder sub-section (8), for making further inquiry, he has to record his reasons for such disagreement as is contended by Shri prasad Shri Prasad has laid emphasis on the expression "disagreement" and submitted that only after recording his reasons for such disagreement, the collector can inquire into the matter himself and not otherwise. We are unable to accept this contention of learned counsel. What the Collector has to dp after hearing thb parties, [under sub-section (8)] is either to affirm the finding of the Board or, in case of prima facie not being satisfied with the finding, to make such inquiry as he thinks necessary and then dispose of the matter. He may agree even after inquiry with the finding of the Board or he may finally choose to disagree with that finding. He may agree even after inquiry with the finding of the Board or he may finally choose to disagree with that finding. It is at the stage when he finally disagrees that he must record the reasons for his disagreement with the finding of the Board, which may take into account any further materials that may be brought on the record in course of his inquiry under sub-section (8 ). Any other construction may lead to a situation where in the Collector may be passing two contradictory orders. For example, if Shri Prasads contention is accepted, then the Collector, in the first instance, will have to record a finding in disagreement with the Board with reasons and then, after making further inquiry in a given case, he may ultimately agree with the findings of the Board. Thus, there are two kinds of orders passed by the Collector under sub-section (8) ; first, an order of disagreement with the Board and then an order of agreement with the Board. Such a contradictory situation must never have been contemplated by the legislature, although the sub-section is not happily worded. Recording of reasons for disagreement, therefore, is not a condition precedent to embarking on the inquiry and the final order under sub-section (8) cannot be quashed for not recording reasons for his initial difference with the findings of the Board, as urged by Shri Prasad. We are not for. a moment suggesting that the Collector under the Act should not indicate in his order that prima facie he is not agreeing with the report of the Board and wishes to make further inquiry into the matter. We, therefore, reject the first point urged by Shri prasad. 6. There is substance, however, in the third contention raised by Shri prasad that the Collector in his final order (annexure 3), dated 26.12.75, has given no reasons for differing with the finding of the Board. Shri Yogesh chandra Verma appearing on behalf of the respondent-bataidars in all these writ applications has submitted that this objection was not taken by the petitioner in the appeal before the appellate authority. Shri Yogesh chandra Verma appearing on behalf of the respondent-bataidars in all these writ applications has submitted that this objection was not taken by the petitioner in the appeal before the appellate authority. If the order of the Collector under sub-section (8) has not complied with the requirement of the sub-section, the fact that the question has not been raised before the appellate court will not disentitle the petitioner from raising that point inasmuch as the statute specifically requires, the Collector to record reasons for his disagreement with the finding of the Board, and there can be no estoppel against statute. All that the collector has said in annexure 3, while allowing the forty applications of the bataidarsincluding the twenty-three applications with which we are concerned, is as follows: This is hardly any compliance with the provision of sub-section (8 ). What the collector says in the above quoted lines is that, on the whole, the claim of bataidars are, prints facie, proved. He has thus not recorded any final conclusion in the matter. It may also be stated that before the collector a number of witnesses were examined and, at the instance of the petitioner, he also held local inspection of the disputed plots. There is no mention about the evidence of any witness in the entire order of the Collector with regard to these twenty-three cases or about his local inspection, either. Sub-section (9), which has been quoted above, also enjoins upon the Collector that his order under sub-sections (6), (7) or (8) shall be in writing and shall state the grounds on which it is made. It is thus manifest that neither the requirement of sub-section (8) nor sub-section (9) has at all been complied with. The collector was required to consider the documents and evidence put before him and to record his reasons for taking one view or the other of the matter. The revenue authorities should not forget that they are disrharging the functions of a Civil Court while disposing of such proceedings and should not act in an arbitrary fashion in disposing of such proceedings. The revenue authorities should not forget that they are disrharging the functions of a Civil Court while disposing of such proceedings and should not act in an arbitrary fashion in disposing of such proceedings. In the case of Ram narain Singh V/s. State of Bihar (AIR 1975 Patna 276), this Court has clearly laid down : "thus, the procedure to be followed in an enquiry under section 48-E is not much different than the procedure followed in a civil suit of course with this difference that the enquiry in the proceeding will be of a summary nature as the main purpose behind the enactment is to provide speedier remedy to the under-raiyats. Sub-section (9)also requires the Collector to make his order under sub-sections (6) (7) or (8) in writing and to state the grounds on which it is made. This also indicates that the order of the Collector must be like a judgment in a civil suit. " It is rather unfortunate that the appellate court also, while disposing of the appeal as per annexure 4, has committed similar error and has not discussed the materials on which it considered the order of the Collector (annexure 3) to be justified. The orders contained in Annexures 3 and 4, both, have, therefore, got to be quashed. 7 As we propose to remand this proceeding to the Collector for a fresh decision, we do not consider it expedient to give a finding on the third point raised by Shri Prasad. 8. In the result, all these twenty-three applications are allowed and the orders of the Collector and that of the appellate authority, contained in annexures 3 and 4, respectively, are quashed. The matter is remanded back to the collctor who will re-hear the parties and dispose of the matter in accordance with law and in the light of the observations made above. There will be no order for costs. Applications allowed.