Miajan Khan v. State Of Bihar — 1988 DIGILAW 226 (PAT)

Judgment S. B. Sinha, J. 1. This writ petition is directed against an order dated 22-10-1981 passed by the respondent No.3 and as contained in Annexure-3 to the writ petition as also on order dated 27-9-1982/30-9-1982 passed by the respondent no.2 in Case No.175/1981-82 whereby and whereunder the said authorities in purported exercise of their power conferred upon them under Sec.48-E of the bihar Tenancy Act (hereinafter referred to case the Act) dismissed an application filed by the petitioner in terms of Sec.48-E (1) thereof. 2. In view of the points involved in this writ petition it is not necessary to state the fact in details. 3. Suffice it to say that the petitioner filed an application in terms of Section 48-E (1) of the Act inter alia on the ground that the petitioner who claims himself to be an under raiyat of the respondent No.5 had been threatened to be unlawful ejected from the land in question by the said respondent. 4. On the basis of the said application a proceeding was initiated and the dispute was admittedly referred to the Board. From the order-sheet, maintained by the Board, it appears that no effect was made by it in bringing out an amicable settlement of the dispute between the parties. The said report was submitted before the respondent No.3 within a period of six months. 5. However, the respondent No.3 opined that no attempt was made by the board in bringing out an amicable settlement and passed an order dated 22-10-1981 as contained in Annexure-3 to the writ petition. 6. The petitioner thereafter preferred an appeal before the respondent No.2 which was also dismissed by an order dated 27-9-1982. The said appellate order is contained in Annexure-4 to the writ petition. 7. Before proceeding with the case it may be mentioned that no appeal lay before the Collector from the order dated 22-10-1981 passed by the respondent no.3. In this view of the matter in this application I am not considering the legality or otherwise of the order passed by the respondent No.3 dated 22-10-1981. 8. Learned counsel for the petitioner submitted that from the records it would appear that there was no attempt on the part of the Board in bringing about an amicable settlement of the dispute between the parties and as such the same was vitiated in law. 8. Learned counsel for the petitioner submitted that from the records it would appear that there was no attempt on the part of the Board in bringing about an amicable settlement of the dispute between the parties and as such the same was vitiated in law. Learned counsel for the petitioner further submitted that even the respondent No.3 while exercising his power conferred upon him under Sec.48-E (10) of the Act also did not make any such attempt which is mandatory in nature. According to the learned counsel the said order is therefore, vitiated in law. 9. Mr. Krishna Prakash Sinha, lrarned counsel appearing for the respondents, on the other hand, raised two interesting questions :- Firstly, the learned counsel submitted that it was not necessary for the board to record an order mentioning therein that inspite of effects having been made by the Board to bring about an amicable settlement the same has resulted in a failure. Secondly, the learned counsel submitted that in any event if it be held that the Board did not make any attempt to bring about un amicable settlement its report being a nullity in the eye of law, the respondent No.3 was legally competent to withdraw the proceeding from the Board and decide the dispute himself in terms of the provision of subsection (10)of Sec.48-E of the Act. 10. The argument of Sri Sinha although is attractive at the first flash, in my opinion, does not stand a detailed scrutiny. 11. Section 48-E of the Act is a self contained code. In terms of subsection (6)of Sec.48-E of the Act the Board is enjoined with a duty to make endeavour to bring about an amicable settlement of the dispute. If such a settlement is brought about, the Board is required to submit a report containing the terms of settlement to the Collector, who on receipt of such a report is to dispose of the proceeding in terms thereof. However, in the event of failure on the part of the Board to bring about an amicable settlement in respect of the dispute, it shall initiate an enquiry in relation thereto and receive such evidence as it considers necessary in terms of sub-section (7) of Sec.48-E of the Act. 12. However, in the event of failure on the part of the Board to bring about an amicable settlement in respect of the dispute, it shall initiate an enquiry in relation thereto and receive such evidence as it considers necessary in terms of sub-section (7) of Sec.48-E of the Act. 12. There is no doubt whatsoever that before the Board proceeds to receive evidence it has got to record a finding that inspite of its endeavour to bring about an amicable settlement, the same was not possible or has resulted in a failure. 13. This Court on numerous occasions has held that if no effect was made by the Board to bring about an amicable settlement, the report, if any, submitted by it become vitiated. Reference in this connection may be made, to Hari Prasad mandal V/s. Addl. Collector, Monghyr reported in 1978 BBCJ 572 Lakshmi pd. Bhagat V/s. State of Bihar and others, reported in 1979 BLJR 101, Dhanji singh V/s. The State of Bihar and others reported in 1979 BLJR 711: 1979 BLJ 623 as also Prakash Lal Singh V/s. State of Bihar reported in 1979 BBCJ 10 : 1979 blj 206 . 14. In my opinion, therefore, it is incumbent upon the Board to bring the facts on record that it did make an endeavour to bring about an amicable settlement between the parties and in absence of such an order it cannot be presumed that there had been such an endeavour on the part of the Board. The Board or for that matter the Collector under the Act or the Appellate Authority are all creatures of the statute and their duties and functions are statutory in nature. 15. The very purport and object of sub-section (6) of Sec.48-E of the act is to see that a raiyat or an under-raiyat do not litigate unnecessarily and as far as possible the dispute should be amicably settled. 16. The said provision, as mentioned hereinbefore, is mandatory in nature. 17. It is, therefore, apparent that the Board must not only make an endeavour to bring about an amicable settlement in fact but if such a settlement is arrived at, the only function, that is cast upon the Board, is to transmit the record of the case to the Collector with its findings on the basis thereof. 17. It is, therefore, apparent that the Board must not only make an endeavour to bring about an amicable settlement in fact but if such a settlement is arrived at, the only function, that is cast upon the Board, is to transmit the record of the case to the Collector with its findings on the basis thereof. On the other hand if such a settiement cannot be arrived at, only in such a event it is to receive evidence as may be produced by the parties. It is, therefore, in my opinion, absolutely necessary for the Board to record a finding with regard to the endeavour made by it for bring about an amicable settlement. 18. There cannot be any doubt whatsoever that the Board has to record a finding as to what happended to its endeavour relating to bringing about an amicable settlement of the dispute between the parties. In my opinion, therefore, it was obligatory on the part of the Board to record such facts in its order-sheet and in absence of any such entry in the order-sheet it cannot be presumed that the board has made an endeavour to bring about an amicable settlement or such an attempt resulted in a failure. 19. So far as the second point raised by Mr. Sinha is concerned, in my opinion, the same has also no substance. Sec.48-E (10) of the Act is as follows : - "if the Board fails to record its findings or transmit the records as required under sub-section (7) within a period of six months from the date of its appointment, the Collector may withdraw the proceeding from the Board and decide the dispute himself according to the provisions of this section. " 20. From a perusal of the aforementioned provision it is evident that the power of the Collector to withdraw the proceeding from the Board and to decide the dispute himself can be exercised only in the event of failure on the part of the board to record its findings or transmit the records as required under sub-section (7) within a period of six months from the date of its appointment. 21. In the instant case there is no dispute that the Board in fact recorded its finding. It is also not in dispute that the Board submitted its report within a period of six months. 21. In the instant case there is no dispute that the Board in fact recorded its finding. It is also not in dispute that the Board submitted its report within a period of six months. In this view of the matter the respondent No.3 could not have withdrawn the proceeding from the Board and decide the dispute himself in asmuch as preconditions therefor is a factual failure on the part of the Board to record its finding or transmit the records as required under sub-section (7) of section 48-E of the Act within a period of six months from the date of its appointment. As the Collector is himself a creature of the statute he is bound to act within the four corners thereof. Plainly enough the Collector, could not therefore, withdrawn the proceeding from the Board only if the necessary pre-conditions therefor as laid down under sub-secteon (10) of Sec.48-E of the Act were fulfilled. Such is not the case here. Sub-section (10) of Sec.48-E of the Act does not clothe the Collector with a power to withdraw the proceeding on the ground that the proceeding before the Board was a nullity as it did not make any endeavour to bring about an amicable settlement. 22. Once the dispute is referred to the Board, the Board has the jurisdiction to make the report upon taking necessary evidence therefor, albeit after making an endeavour to bring about an amicable settlement but the Collector cannot exercise his power under sub-section (10) of Sec.48-E of the Act only because the Board has failed to do its duty and decide the dispute himself. 23. The Board, in such an event, cannot be said to be lacking inherent jurisdiction nor its finding can be said to be a nullity. In my opinion a distinction has to be made between the order which is a nullity because there is an inherent lack of jurisdiction in the authority concerned and an order which becomes vitiated in law because offailure on the part of the concerned authority to comply with the mandatory requirements of law. 24. In any event, as mentioned hereinbefore, the Collector himself could exercise his jurisdiction only in the event of fulfilment of the condition as laid down under sub-section (10) of Sec.48-E of the Act. 25. 24. In any event, as mentioned hereinbefore, the Collector himself could exercise his jurisdiction only in the event of fulfilment of the condition as laid down under sub-section (10) of Sec.48-E of the Act. 25. It is well settled principle of law that a statutory functionary must adhere to the procedure laid down under the statute. In the instant case, as held hereinbefore, the respondent No.3 could have exercised his jurisdiction to decide the dispute between the parties only in the event of non-transmission of the report by the Board within a period of six months in terms of sub-section (7) of Section 48-E of the Act. He could not have assumed jurisdiction only because the Board had allegedly, failed to comply with the mandatory provision of law. 26. In my considered view if the Board fails to comply with the mandatory requirement of law as envisaged under sub-section (6) of Sec.48-E of the Act he could have recorded his disagreement with the report or remit the matter back to the Board with a direction that it must make an endeavour to bring about an amicable settlement of the dispute between the parties. 27. In this view of the matter too, I am of the opinion that the respondent no.3 did not have any jurisdiction to withdraw the proceeding before the Board and to proceed to decide the matter. 28. In view of the fact that the Collector could not in the facts and circumstances of the case withdraw the proceeding from the Board the order passed by him must be hold to be illegal. 29. In view of the fact that the mandatory requirement of law has not been complied with in so far as the Board has failed to bring about an amicable settlement between the parties this writ petition has to be allowed. 30. In the result, the order dated 22-10-1981 (Annexure-3) and the order dated 27-9-1982 (Annexure-4) are hereby quashed and the Board is hereby directed to consider the matter afresh in accordance with law. Petition allowed.