JUDGMENT : Hari Lal Agrawal, J. 1. This application under Articles 226 and 227 of the Constitution of India has been filed by the petitioner for quashing the ORDER :dated 3-2-1976 (Annexure 5) passed by the Additional Collector, East Champaran, Motihari (Respondent no. 2) in purported exercise of his appellate power under Section 48F of the Bihar Tenancy Act. By this ORDER :the Additional Collector has set aside the ORDER :of the Deputy Collector, Land Reforms, Sikraha, dated 7-6-1975 (Annexure 4). The Deputy Collector by his said ORDER :has held that the claim of Bijuli Singh (Respondent no. 7) as the Bataidar of the petitioner, was false and baseless. Mr. Kailash Roy, appearing in support of this petition; has advanced two main grounds for setting aside the ORDER :of the Additional Collector, namely, (1) the Additional Collector while writing an ORDER :of reversal has not considered all the reasons and grounds taken into consideration by the Deputy Collector for rejecting the claim of the Bataidar and (2) in any event, no endeavour having been made to bring about amicable settlement of the dispute between the parties at any stage, the entire proceeding was vitiated. 2. Now I may state the relevant facts in brief. The proceeding was initiated on an application of respondent no. 7 by the Deputy Collector in the year 1974. A Bataidari Board was then constituted with the Sarpanch of Bakhri Gram Panchayat as its Chairman (respondent no. 4) in spite of the objections raised by the petitioner. The Sarpanch then submitted his report on 16-1-1973 (Annexure 2) to the Deputy Collector recommending the case of the Bataidar. The petitioner's Panch filed an objection to the report of the Sarpanch before the Deputy Collector, who heard the parties and by his ORDER :dated 7-6-1975 (Annexure 4) rejected the claim of the Bataidar as already said above. The main findings recorded, by the Deputy Collector may be noted which are as follows:-- (i) The Bataidar was not a settled raiyat of the village. (ii) It was not clear whether attempts to bring about any amicable settlement were made by the Board and, if not, whether the Sarpanch heard both the parties by a proper notice at the time of taking evidence of the witnesses. (ii) It was not clear whether attempts to bring about any amicable settlement were made by the Board and, if not, whether the Sarpanch heard both the parties by a proper notice at the time of taking evidence of the witnesses. (iii) It was apparent that extraordinary haste had been shown in submitting the report inasmuch as the Board took action on 8-1-75 and submitted the final report only on 16-1-75 i.e., within nine days. (iv) The witnesses examined by the Bataidar were not competent and reliable. 3. On appeal being taken by the Bataidar, the Additional Collector recorded the following findings in disagreement with the Deputy Collector. (a) The Chairman had made endeavour to bring about an amicable settlement. (b) The Bataidar was resident of the village in question. (c) The witnesses examined by the Bataidar were quite competent and reliable. (d) No irregularity was committed in following the procedure by the Board. On these findings, as already said earlier, the Additional Collector set aside the ORDER :of the Deputy Collector and accepted the case of the Bataidar as correct. 4. Sitting in writ jurisdiction I do not propose to discuss the case of the rival parties on their merits in the sense of appreciating the evidence adduced by them in support of their respective cases; rather the finding of the appellate court that the claim of the Bataidar was acceptable on the evidence cannot be interfered with. I, therefore, proceed to examine the correctness of the second point advanced by Mr. Kailash Roy, namely, the alleged failure on the part of the Bataidari Board to make an endeavour for an amicable settlement between the parties. The contradictory findings recorded by the two authorities have already been noticed above. The only material that is available on the record and was relied upon by learned counsel for both the parties is the relevant ORDER :sheet of the Bataidari Board contained in Annexure 8. After receipt of the record on 8-1-1975 the neat date fixed in the case was 10-1-75. The ORDER :sheet of this date states that the Chairman along with two Panches went to village Champapur where both the parties were sent for and were told to come to an amicable settlement, on behalf of all the Panches (Apas men maitripurn samjhauta karne ko sabhi Panchon ki taraf se kaha gaya). The ORDER :sheet of this date states that the Chairman along with two Panches went to village Champapur where both the parties were sent for and were told to come to an amicable settlement, on behalf of all the Panches (Apas men maitripurn samjhauta karne ko sabhi Panchon ki taraf se kaha gaya). On this the petitioner told them that he would give his reply subsequently (Baad men bichar karke sulah ka jawab denge). The Board then went to the disputed land and examined the witnesses. The parties were also asked to bring their own witnesses on the next day. The ORDER :-sheet of the next day, i.e.; 11-1-1975 states that on a petition of the petitioner which was also recommended by his Panch, further proceedings were postponed. The next ORDER :is dated 16-1-75 and that simply states that neither party took any further step in the matter and, therefore, according to the direction of the Deputy Collector the inquiry report was forwarded. It is, perhaps, on the basis of the aforesaid ORDER :of the Board dated 10.1.1975 that the Additional Collector has held that the endeavour was made for settlement. 5. Question arises as to whether the so called attempt can be said to be a due compliance of the requirement of law and, if not, then what should have been the further procedure to be followed by the Additional Collector in the matter. In ORDER :to answer the above question posed by me, I would do better to refer to some of the relevant provisions of Section 48E of the Act. In ORDER :to answer the above question posed by me, I would do better to refer to some of the relevant provisions of Section 48E of the Act. According to the provisions of Sub-section (3) "when a proceeding is initiated under Sub-section (1), the Collector may refer the matter (dispute) to a Board to be appointed by him, for promoting the settlement of the dispute between the under-raiyat and the landlord." And then under Sub-section (5), the Chairman of the Board to whom the dispute is referred after giving written notices to both the parties "shall make endeavors to bring about an amicable settlement of the dispute and when an amicable settlement of the dispute is brought about, the Board shall forthwith submit a report containing the terms on which settlement had been brought about, to the Collector, who may dispose of the proceeding in accordance with the terms of the report." Then according to Sub-section (7), where a Board does not succeed in bringing about an amicable settlement of the dispute, it shall make-enquiry into the same and then transmit the record to the Collector who may dispose of the proceeding in accordance with the terms of the findings of the Board or may disagree with the Board and may make such enquiry, as he thinks necessary, and after recording his reasons for such disagreement, may make his own ORDER :stating the grounds for the same [vide the provisions contained in Sub-sections (7), (8) and (9)]. Sub-section (10) fixes a time limit of six months for the Board to complete its proceedings and if it falls to complete its work within the said period, then the Collector may withdraw the proceeding from the Board and decide the dispute himself according to the provisions of this section. 6. A Division Bench of this Court to which I was also a party, in the case of (1) Rasik Lal Singh and another V. State of Bihar and others (1979 B.B.C.J. 10) has held that the Collector acting under Sub-section (10) of Section 48E has to follow all the provisions of this section and, therefore, he also is required to make endeavors to bring about an amicable settlement of the dispute between the parties, and if he does not make such an endeavour his ORDER :is illegal. There are some other cases also in which the ORDER :of the Collector based upon the report of the Board, where there has been a failure to comply with the requirement of Sub-section (6), was held to be illegal. The situation in this case, however, is somewhat different and that is that if the so called endeavour by the Board appearing from the ORDER :dated 10.1.1975 is held to be not the due compliance of the provisions of Sub-section (6) and where the Collector is acting under Sub-section (8) in disagreement with the Board's finding, then is he bound to act in the same manner and follow the same procedure when he is acting under Sub-section (10), or he can act independent of the same. 7. Mr. Rewati Raman Saran, appearing for the Bataidar, contended that if the ORDER :dated 10-1-1975 is not held to be the due compliance of the requirement of law in regard to promoting the settlement of the dispute between the parties, then it should be held that the Collector who acted under the powers conferred upon him under Sub-section (8), was not bound to follow the same procedure as in Sub-section (10), inasmuch as there was no such direction in Sub-section (8) similar to in Sub-section (10) enjoining upon the Collector to "decide the dispute himself according to the provisions of this section". Where a Collector has to act under Sub-section (10) and decide the dispute himself, there may be two positions (1) where the Board has not at all proceeded in the matter and (2) where the proceeding has reached almost at its conclusion but the report is not prepared or is not submitted within the prescribed period. In the second situation a Board might have also complied with the requirement of Sub-section (6) and might have made all endeavours to make an amicable settlement of the dispute or it might have failed to do so. The result obtaining on account of the failure on the part of the Board to complete the proceeding within six months renders the partly conducted proceeding also irrelevant for all practical purpose. In a case where the Collector disagrees with the findings or report of the Board, there may be a situation of non-compliance of the aforesaid mandatory provision of promoting the settlement. In a case where the Collector disagrees with the findings or report of the Board, there may be a situation of non-compliance of the aforesaid mandatory provision of promoting the settlement. An ancillary question was raised in this connection as to whether in such a case where some of the period of six months was still available, the Collector should remit the matter back to the Board for submitting a fresh report in accordance with law, or he was bound to decide the dispute himself. Having examined the provisions of this scheme, I am of the view that once the Board submits its report it becomes functus officio. Therefore, there is no question of remitting the matter back to the same Board. As to whether in such a situation the Collector may reconstitute the Board and refer the dispute to it afresh is a question which need not be decided in this case, but this is an important question no doubt. It cannot be disputed that the endeavour by the Board to promote an amicable settlement is a very fundamental duty of the Board, so much so that Sub-section (3) specifically says that the appointment of the Board will be for promoting the settlement of the dispute. Reading the provisions contained in Sub-sections (6) and (7) it is also manifest that if the parties arrive at an amicable settlement, the Board and the Collector both have simply to act, and if I may use the expression, as "post offices" and the proceeding has to be disposed of in accordance with the terms of the settlement between the parties. It is only where the Board does not succeed in bringing about a settlement that it has to make an enquiry in the dispute. It is therefore, obvious that making of an attempt for a settlement and its failure is the sine qua non for exercising the power by the Board to start enquiries and adjudicate upon the dispute in question. Failure to follow the above procedure before proceeding with the enquiry, would amount to usurping a jurisdiction not vested in the Board and, therefore, all actions taken by the Board in such a case would be completely without jurisdiction and invalid in the eye of law. 8. Failure to follow the above procedure before proceeding with the enquiry, would amount to usurping a jurisdiction not vested in the Board and, therefore, all actions taken by the Board in such a case would be completely without jurisdiction and invalid in the eye of law. 8. Now coming to the facts of the case in hand, I find that on 10.1.1975 the Board had asked the parties for a settlement and the petitioner had replied that he would give his reply subsequently. What was the attitude of the under-raiyat is however not knows. The proceeding was completed only within a few days thereafter without even ascertaining the attitude of the landlord. In these circumstances, I am not in a position to persuade myself that the action of the Board amounted to making of an endeavour to bring about the settlement. The Board had simply made the proposal in a most casual and formal manner, but it cannot be said to be an 'endeavour' an expression deliberately used by the Legislature in the sense of making sincere efforts towards the object of achieving a settlement. It is, therefore, not possible to hold that the Board had made an endeavour in the sense it was enjoined upon it and, therefore, its recommendations were invalid in law. This might be a ground for the Collector to disagree with its findings as is also evidenced by the observations made by him (respondent no. 3) in his ORDER :(Annexure 4). 9. This now brings us to the moot question as to whether the enquiry that was then to be made under the provisions of Sub-section (8) should have been an enquiry akin to an enquiry under Sub-section (10) or not. Having given my anxious consideration to the problem, I am of the view that the question posed must have two answers depending upon the two obvious circumstances which may occasion the disagreement with the report or the findings of the Board by the Collector, viz (1) where the proceeding of the Board is although in accordance with the procedure and otherwise lawful, the Collector does not agree with the findings, and (2) where the proceeding of the Board is itself vitiated as in the present case. In a situation as obtaining in the former case, in my view, the Collector is not to decide the dispute from the very beginning in the sense of making a denovo enquiry as in case under Sub-section (10). In such a case all that he is required to do is to record his reasons for his disagreement and hear the parties and state the grounds for making his ORDER :; of course, he is also given the power of making any further enquiry as he might think necessary in the case (see 1979 B.B.C.J. 32: Mahanth Ram Narain Giri V. The State of Bihar). In the other situation where the proceeding of the Board is invalidated on some or the other reason; then there being no report in the eye of law, a Collector while holding an enquiry must be deemed to be acting under Sub-section (10) and he is bound to follow the same procedure, including the requirement of Sub-section (6) for promoting amicable settlement of the dispute between the parties and once this conclusion is reached the ratio of Rasik Lal Singh's case will apply with full force to the facts of the present case. Undisputedly the Deputy Collector in this case has not followed the same procedure. The result of his enquiry culminating in his ORDER :(Annexure 4), therefore, must beheld to be illegal, and similarly the Additional Collector could not have decided the case on merits on an erroneous assumption that the Bataidari Board had followed the procedure with regard to the endeavour of making the settlement: I would accordingly allow this application and set aside the ORDER :of the Deputy Collector contained in Annexure 4, but on an entirely different ground than that of the Additional Collector in his appellate ORDER :. For the same reasons, the ORDER :of the Additional Collector (Annexure 5) must also be set aside. In the result, the ORDER :s contained in Annexures 4 and 5 are here-by quashed and cancelled and the matter is remitted back to respondent no. 3 for a fresh decision of the dispute between the parties in accordance with law after constituting a new Bataidari Board. In the circumstances however, there will be no ORDER :as to costs.