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1993 DIGILAW 52 (PAT)

Ram Khelawan Bind v. State of Bihar

1993-02-15

RADHA MOHAN PRASAD

body1993
JUDGMENT Radha Malian Prasad, J. In this writ application the petitioner has prayed for quashing of the order dated 20.8.1991 passed by the Land Reforms Deputy Collector, Bhagalpur (Respondent No.2) in Batai Case No. 11/90-91, as contained in Annexure 3 to the writ petition, whereby and whereunder the petition filed on behalf of the petitioner under section 48E of the Bihar Tenancy Act, 1885 (hereinafter referred to as 'the Act') has been rejected and, further, it has been held that the land-holders, namely, respondents no.3 and 4 are protected under the provisions of section 48C of the Act. 2. The facts of this case lie in a vry narrow compass. The petitioner, who claims to be under raiyat with respect to the land measuring an area of 3 acres 93 ½ decimals appertaining to Khata No.478, when threatened with unlawful ejectment from the samc, filed a petition under section 48E of the Act on 18.1.1991 before the Land Reforms Deputy Collector, inter alia, claiming that he had been cultivating the lands in question on Bhouli basis for more than 40 years and dividing the produce with the father of respondent no.3 and after his death with respondents no.3 and 4. On refusal by the petitioner to pay Salami demanded by respondent no. 3 he was threatened with the ejectment initially by respondent no. 3 and later by rcsponckntno.4 through her husband. Thereafter on 5.2.1991 the petitioner filed another application before the D. C. L. R. for restraining the aforementioned respondents from changing the physical feature of the aforementioned land as, allegedly, they were trying to dispossess him forcibly. 3. On 14.2.1991 the D.C.L.R. admitted the case and directed for issuance of notice to the aforementioned respondents. On another petition filed on behalf of the petitioner, the D.C.L.R. passed an order dated 2.4.1991 for maintenance of status quo with respect to the disputed land. Thus, according to the petitioner, the proceeding under section 48E(1) of the Act stands initiated and the only course left with the D.C.L.R. was to appoint the Board as required under section 48E(3) of the Act but instead of doing so he erroneously allowed the respondents to contest the claim and thereby assumed the jurisdiction of the Board as conferred under section 48E( 4) of the Act. 4. Respondents no.3 and 4 appeared before the. 4. Respondents no.3 and 4 appeared before the. D.C.L.R. and filed their objections wherein they challenged the maintainability of the case besides denying the pleadings of the petitioner claiming cultivation by him over the land in question and also claimed protection under section 48C of the Act. It appears that respondent no.3 also inter alia, contend that he possessed less than 5 acres of irrigated land and that when he wanted to sell the land in question to respondent no.4, the petitioner instituted the present Batai case as he failed in his desire to purchase the same. The petitioner also filed rejoinder to the said objections. A report was called for by the D.C.L.R. from the Anchal Adhikari, Sultanganj regarding the claim of protection of section 48C of the Act of respondents no.3 and 4 and the same was submitted by the Anchal Adhikari on 4.6.1991. It appears that later another report was submitted by the Anchal Adhikari on 20.7.1991, whereafter the D.C.L.R. heard the counsel for the parties and after allowing to lead the evidence in support of their claim passed the impugned order. 5. Mr. Ganpati Trivedi, learned counsel for the petitioner, has raised short question that the D.C.L.R., having initiated a proceeding under section 48E of the Act, had no jurisdiction to hold an enquiry as to whether the petitioner was Bataidar or not. Learned counsel submitted that the the D.C.L.R. after proceeding was initiated as aforementioned had no option but to refer the matter to the Board in view of the provisions contained in section 48E(3) of the Act. It was also submitted by the learned counsel that section 48C of the Act has nothing to do with the initiation of a proceeding under section 48E of the Act. The said provision cannot come in the way of initiating a proceeding under section 48E of the Act. In support of his submissions he has relied upon the decisions reported in A.I.R. 1979 Patna 179 (Kadam Lal Yadav v. The Additional Member, Board of Revenue and others), A.I.R. 1979 Patna 259 (F.B.) : 1979 PLJR 247 (Dhanji Singh v. State of Bihar and others) (Para 10) and also 1988 B. L. J. 993 : 1989 PLJR 333 (Upendra Mandal and others v. State of Bihar & . others) (Para 8). 6. others) (Para 8). 6. Thus, from the submissions made by the learned counsel for the• petitioner two questions arise for consideration, namely, (1) as to whether the proceeding can be said to have been initiated under section 48E of the Act by the order dated 14.2.1991 read with order dated 2.4.1991 directing maintenance of status quo, referred to above, and (2) whether the Collector for the purpose of prima facie satisfaction consider the cases of the parties before constituting the Bataidari Board. So far as the submission that section 48C of the Act has nothing to do with the initiation or a proceeding under section 4SE of the Act, it is true that in the case of Upendra Mandal (Supra) it has been held that whether an under-raiyat can acquire a right of occupancy in terms of section 48C of the Act or not is immaterial for the purpose of maintaining an application under section 48E of the Act, However, in my opinion, in the facts of the present case the said point urged on behalf of the petitioner is not relevant. 7. Mr. P. K. Joshi, learned counsel appearing for respondents no.3 and 4, -has submitted that the petitioner, having participated in the proceeding, is not entitled to raise the objection with regard to the jurisdiction of the D.C.L.R. in this matter. In my opinion, this submission of the learned counsel for the respondent has no substance It is well settled that if a person submits himself to an authority who has no jurisdiction to decide the matter even then he cannot be estopped from raising the point regarding the jurisdiction of that authority in a writ proceeding. 8. Mr. Joshi has further submitted that merely because the application under section 48E of the Act filed on behalf of the petitioner is stated to have been 'Angrikit', it would not amount to initiation of a proceeding under section 48E of the Act. According to him, in the present case the Collector has simply proceeded to find as to whether the petitioner has been able to make out a prima Jade case for initiating the proceeding under section 48E of the Act and refer the same to the Board for adjudication. According to him, in the present case the Collector has simply proceeded to find as to whether the petitioner has been able to make out a prima Jade case for initiating the proceeding under section 48E of the Act and refer the same to the Board for adjudication. It was also submitted that merely because the Collector in the impugned order has found the claim of the land-holder under section 48C of the Act to be correct in addition to the fact that he was not prima facie satisfied to initiate a proceeding under section 48E of the Act and thereby declined to refer the matter to the Board, would not vitiate the order. 9. It is no doubt that after the decision of the Full Bench in Dhanji Singh's case (Supra) a question that section 48E of the Act docs not conceive two enquiries, one preliminary and other the final is no longer res integra. In the said decision their Lordships have held that if the Collector is satisfied on the basis of the materials produced or on the in formation received by him, he may initiate a proceeding - without waiting for the landlord and that no hard and fast rule can be laid down in relation to the satisfaction of the Collector. In the said decision it has also been held that in some cases where the claim of the under tenant has been made by suppressing the material facts the landlord may bring to the notice of the Collector that the claim of the applicant lacks bona fide. The relevant portion of the said decision is quoted hereunder : "In my opinion, from the scheme of S. 48- E it is clear that it docs not conceive two enquiries, one preliminary and other the final. If the applicant satisfies the Collector on the basis of the materials produced before him or the Collector is satisfied on the information received by him, then without waiting for the landlord he can initiate the proceeding. If the applicant satisfies the Collector on the basis of the materials produced before him or the Collector is satisfied on the information received by him, then without waiting for the landlord he can initiate the proceeding. Or course, in some cases where the' claim on behalf of the under-tenant has been made by suppressing the material facts, like an order under S. 145 of the Code of Criminal Procedure between the same parties, upholding the claim of the landlord and negativing the claim of possession made by the under tenant, or a recent delivery of possession having been effected in favour of the landlord over the lands In question, then the landlord may being to the notice of the Collector that the claim of the applicant lacks bona fide. But, the landlord cannot be permitted at that stage to convert the initiation of the proceeding, a mini trial or a parallel enquiry. He has to wait till the matter is placed before the Board." 10. In the present case, by order dated 14.2.1991 the Collector had simply 'Angikrit' the application under section 48E of the Act and directed to issue notice to the landlord. Later, by order dated 2.4.1991 on the petition for interim order filed on behalf of the Bataidar, he passed an order for maintenance of status quo in respect of the land in question and for sending a copy of the said petition to the concerned Officer-in-Charge of the Police Station and to the Circle Officer. He also ordered to place the matter for further hearing on the date fixed. The word 'Angikaran' means adoption, the reception and the word 'Angikrit' means adopted. The meaning of the word 'initiation' is to originate, set on foot; admit. Thus, in my opinion, it cannot be said that by the aforementioned order dated 14.2.1991 the Collector initiated the proceeding on the application filet; on behalf of the petitioner under section 48E of the Act. It is not in dispute that the Board as contemplated under sections 48E(3) and (4) of the Act was not constituted. 11. Thus, in my opinion, it cannot be said that by the aforementioned order dated 14.2.1991 the Collector initiated the proceeding on the application filet; on behalf of the petitioner under section 48E of the Act. It is not in dispute that the Board as contemplated under sections 48E(3) and (4) of the Act was not constituted. 11. Thus, in the facts and circumstances aforementioned, I do not find any illegality committed by the landlord in bringing the relevant facts to the notice of the Collector in order to show that the claim of the Bataidar was not bona fide and there is no error on the part of the Collector in having decided the same at a stage before the proceeding was initiated and/or before the matter was referred to the Board. In my opinion, the Collector is fully empowered to hear the parties after giving due notice to them under section 48E of the Act, However, he can also proceed ex parte in the cases of emergency before a formal order of initiating a proceeding under the said provision is passed, only whereafter he has no option but to refer the matter to the Board to be appointed by him. 12. In the present case, as already mentioned above, the notice was given by order dated 14.2.1991 to the land-holder, who appeared and the matter was heard and then the impugned order was passed. The said order, which is a long one and appears to have been passed after an enquiry, is, in fact, not so. The Collector under the Act has simply discussed the submission made on behalf of the parties and as no material/evidence in support of the claim of the Bataidar was placed before him by the petitioner, he was not prima facie satisfied with his claim and, accordingly, he declined to initiate the proceeding and appoint the Board under section 48E of the Act. Incidentally, he also took into consideration the fact that the claim of the landlord under section 48C of the Act was justified, but, in my opinion, that will not vitiate the order. 13. As it is well settled that unless the Collector is prima facie satisfied that the application filed by the Bataidar under section 48E of the Act is bona fide, the same cannot be said to be maintainable. 13. As it is well settled that unless the Collector is prima facie satisfied that the application filed by the Bataidar under section 48E of the Act is bona fide, the same cannot be said to be maintainable. The Collector under the Act, has, therefore, jurisdiction to consider the cases of the parties for the aforesaid purpose before initiating a proceeding and/or before constituting the Bataidari Board. 14. Accordingly, I do not find any merit in this application and the same is dismissed, but without costs.