Judgment S. N. Jha. J, J. 1. This writ petition arises out of an order marked Annexure-6 by which the Deputy Collector, Incharge Land Reforms, Biharsharif (D. C. L. R.) exercising the powers of the Collector has rejected the application of the petitioner for initiation of proceeding under Sec.48-E of the Bihar Tenancy Act (the Act in short) and restraint order against respondent No.3, Gokhulpur Trust Committee. The relevant facts are as follows 2. The petitioner claiming under-tenancy rights, in common parlance bataidari rights, with respect to O.40 acre of plot No.869 and O.63 acre of plot No.875 situate in Village Gokhulpur within Harnaut Anchal of nalanda district filed the petition on 30-6-1990 stating that he apprehended dispossession by the landlord, respondent No.3. The petition was registered as Case No.85 of 1990-91. On 3-8-1990 the D. C. L. R. passed an interim restraint order and issued notice. Respondent No 3 appeared on 10-10-1990. He, however, filed his show cause only a year after on 30-10-1991. In the meantime, respondent Nos.4 and 5 had filed separate petitions on 15-12-1990 and 14-1-1991 claiming under-tenancy rights with respect to plot Nos 875 and 869, respectively giving rise to Case Nos.94 and 95 of 1991. Respondent No.3 filed show cause accepting the claim of respondent Nos.4 and 5 in Case Nos.94 and 95 of 1991. The petitioner, who had in the meantime nominated his Panch on 30-8-1991 filed petition stating the mala fides of respondent No.3 on 7-3-1992. The D. C. L. R. by impugned order dated 28-4-1992 allowed the claim of respondent Nos.4 and 5 with respect to the lands in question and, thus, rejected the claim of the petitioner observing that no land was available with respect to which his claim could be considered. The order has been passed in Case No.94 of 1991 but made applicable to Case Nos.85 and 95 of 1991 as well. 3. Mr. Nawal Kishore Singh, learned counsel for the petitioner, submitted that the D. C. L. R. having taken cognizance of the dispute, issued notice and also passed interim restraint order, was obliged to refer the dispute to the Board for settlement of the dispute. 3. Mr. Nawal Kishore Singh, learned counsel for the petitioner, submitted that the D. C. L. R. having taken cognizance of the dispute, issued notice and also passed interim restraint order, was obliged to refer the dispute to the Board for settlement of the dispute. It was pointed out that at the stage of the initiation of the proceeding the Collector has only to prima facie see the existence of dispute and he is not supposed to hold a full-fledged enquiry, take evidence and decide the dispute himself. Reliance was placed on Dhanji Singh V/s. State of Bihar and others, (AIR 1979 Patna, 259) Mr. Sidheshwar Prasad Singh, learned counsel for respondent No.4, submitted that the Collector is entitled to see that the dispute sought to be raised is bona fide. It was pointed out that denial of jurisdiction to hold enquiry at the preliminary stage would result in false frivolous claim at the instance of unscrupulous persons in order to harass the landlord. Reliance was placed on Sukhdeo Paswan and ors. V/s. The State of Bihar and on.1993 (2) PLJR 211. 4. As broad proposition of law, I have no hesitation in accepting the submissions of Mr. Sidheshwar Prasad Singh to be correct. The question for consideration, hewever, is whether the procedure adopted by the d. C. L. R. to find out the existence of bona fide dispute was correct in law and warranted on facts. Sec.48-B, in so far as relevant for the purpose of this case, may be noticed first :- "48-E. Prevention of threatened ejectment of under-ratyat and restoration to possession under-raiyat unlawfully ejected.-If an under-raiyat is threatened with unlawful ejectment from his tenancy or any portion thereof land, crop or produce thereof either on the ground of non-existence of relationship of landlord and tenant between them or otherwise or if an under-raiyat is or has been ejected from his tenancy or any portion thereof within twelve years before the commencement of proceedings under this Section in contravention of the provisions of Sec.89 the Collector may, of his own motion or on application made in this behalf by the under-raiyat, initiate a proceeding for preventing the landlord from ejecting the under-raiyat or for settlement of the said dispute or for restoration to possession under-raiyat unlawfully ejected from his tenancy or portion thereof. (2) xx xx xx (3) When a proceeding is initiated under sub-section (1) the collector may refer the matter (hereinafter referred to as "dispute") to a Board to be appointed by him, for promoting the settlement or the dispute between the under-raiyat and the landlord. " 5. The point at issue is covered by a Full Bench decision of this Court in Dhanjt Singhs case (supra) wherein N. P. Singh, J. , who delivered the leading judgment, after considering the relevant provisions of the Act and the case law on the point held :- "i have no hesitation in holding that a proceeding under Sec.48-E can be initiated only after the Collector is satisfied that one of the three requisite conditions exists. On what materials and in what manner the Collector shall be satisfied existence of one or the other requisite conditions for initiation of the proceeding, no hard and and fast rule can be laid down. It will depend on the facts and circumstances of each case. While dealing with the argument put forward on behalf of the landlord as to whether the Collector should hear the landlord if he appears of his own and intervenes at the time of initiation of the proceeding the learned Judge observed that in cases where the claim on behalf of the under-tenant is made by suppressing material facts like an order under Sec.145, cr. P. C , between the same parties upholding the claim of the landlord and negativing the claim of possession of under-tenant, recent delivery of possession in favour of the landlord over the lands in question and so on, it is open to the landlard to bring to the notice of the Collector that the claim of the applicant was not bona fide. However, a note of caution was struck in these words :-But the landlord cannot be permitted at that stage to convert the initiation of proceeding a main trial or a parallel enquiry. He has to wait till the matter is placed before the Board. B. P. Sinha, J. observed that in order to find out whether prima facie case is made out or not the Collector should not shut out the landlord from appearing before him and showing that proceeding sought to be initiated is mala fide and baseless. He has to wait till the matter is placed before the Board. B. P. Sinha, J. observed that in order to find out whether prima facie case is made out or not the Collector should not shut out the landlord from appearing before him and showing that proceeding sought to be initiated is mala fide and baseless. He, however, agreed with the conclusion of n. P. Singh, J. that Sec.48 E does not conceive of to enquiries. It was said that how it be done will depend upon facts of each case. P. S. Sahay, j. , who also agreed with N P. Singh, T. , observed that Sec.48-E of the act is intended to safeguard the interest of the under-tenant who belong to weaker class and if landlords are allowed to appear in all cases intinitial stage then the object of the under-tenants to secure appropriate order in the proceeding may itself be defeated on account of the time consumed in such an enquiry. 6 The D. C. L R. having issued notice to the respondents and also passed interim restraint order in terms of sub-section (2) of Sec.48-E must be deemed to have taken cognizance of the dispute on being prima facie satisfied about the existence of a dispute. The proceeding within the meaning of Sec.48-E (1) must be deemed to have been formally initiated on 3-8-1990. What he did afterwards is difficult to appreciate. He considered the claims of respondent Nos.4 and 5 in their cases and allowed the same on concession of respondents No.3. So far as the claim of the petitioner is concerned, the same was rejected not on the basis of any finding that it is false and frivolous but on the ground that after allowing the claim of respondent Nos.4 and 5 no land was left with respect to which the claim of the petitioner could be considered. The landlord did not appear in the proceeding of his own. He had appeared pursuant to the notice in terms of an order passed under sub-sections (1) and (2) of Section 48-E, that stage it was not open to the D. C L. R. to decide the claim, so far as the petitioner is concerned. This had to be done in the first instance by the Board. He had appeared pursuant to the notice in terms of an order passed under sub-sections (1) and (2) of Section 48-E, that stage it was not open to the D. C L. R. to decide the claim, so far as the petitioner is concerned. This had to be done in the first instance by the Board. It may be stated here that this Court has consistently held that after initiation of the proceeding the dispute has to be referred to the Board for settlement. Instead of citing the decisions on the point i would better quote the relevant portion of the judgment in Dhanji Singhs case (supra) which runs as follows : - "in my view, although sub-section (3) of Sec.48-E uses the expression may, it has to be held that once a proceeding is initiated under sub-section (1) of that section, the dispute has to be referred to the Board to be constituted by the Collector. " 7. In my opinion, the case of the petitioner stands on a much better footing than the case of the under-tenant in Dhanji Singh (supra), whose claim was rejected, in the words of the learned Judge :- "the Sub-divisional Officer as Collector, has not only heard both parties but he has looked into the documents and has considered the respective advanced on behalf of both the parties at the stage initiation of the proceeding. Admittedly, this case is not one of these cases where the landlord at his own initiative having appeared before the Collector has produced such a material which established the mala fide nature of the application filed on behalf of the petitioner. The impugned order itself shows that the Sub-divisional Officer has purported to adjudicate the claims of the parties and has negatived the claim of the petitioner after recording a finding. In such a situation, I am left with no option but to hold that impugned order has been passed by adopting a procedure which is not sanctioned by law. " If the claim of an applicant were to be considered on the basis of counter-claims of others it will result into a most unjust situation. It will give a rope to an unscrupulous landlord to set henchmen and conceding to an imaginary and non-existent claim pre-empt the enquiry in respect of even genuine claims at the very threshold stage. " If the claim of an applicant were to be considered on the basis of counter-claims of others it will result into a most unjust situation. It will give a rope to an unscrupulous landlord to set henchmen and conceding to an imaginary and non-existent claim pre-empt the enquiry in respect of even genuine claims at the very threshold stage. Such a course will neither serve the object underlying the provisions under Sec.48-E nor is sanctioned by law. it may be stated that so far as the landlord is concerned, the law provides him adequate opportunity to meet claim of the applicant both in the conciliation proceedings before the Board and before the collector after receipt of the report under sub-section (8 ). I have no manner of doubt that the impugned order is wholly erroneous and without jurisdiction and fit to be set aside. 8 Before I close the discussion, I would like to notice two other submissions made on behalf of the respondents marked by their ingenuity. Mr. Sidheshwar Prasad Singh referred to the provisions of Sec.22 of the Bihar Lands Reforms (Fixation of Ceiling Area and Acquisition of surplus Land) Act, 1961 in short the Ceiling Act) submitted that no claim of under-tenancy rights having been made during course of proceeding under the Ceiling Act the claim of the petitioner is not maintainable. The submission is wholly misconceived. Sec.22 merely enables the undertenant to retain the lands, as an occupancy raiyat suoject to fulfilment of certain conditions as mentioned therein. The only consequence of his not making application is contained in sub section (2) which provides that if the under-tenant refuses or fails to make an application within the prescribed period, he shall be liable to be ejected by the Collector. It is not the case of the respondent that by reason of failure of the petitioner to make any application under Sec.22 of the Ceiling Act order has been passed by the Collector for his ejectment. In my opinion, the provisions of Sec.48-E of the Act are not to be read in derogation to the provisions of Sec.22 of the Ceiling Act and, therefore, failure of the under-tenant make application in terms of Sec.22 of the Ceiling Act does not disentitle him claim undue-tenancy rights under Sec.48-E of the act. 9. The second submission, which I would like to take notice, was advanced by Mr. 9. The second submission, which I would like to take notice, was advanced by Mr. Pushkar Narain Shahi, learned counsel representing respondent No.5. He submitted that in the absence of a registered document the claim in respect of under-tenancy rights is barred in view of the provisions of Sec.16 (2) (iii) of Ceiling Act. Sec.16 (2) (iii) prohibits transfers, exchange, lease, mortgage, bequeath or gift except under a registered document. A plain reading of the provisions shows that the bar is applicable to transfer of property in the manner specified therein. Sec.4 (3) of the Bihar Tenancy Act defines under-raiyats to mean tenants holding whether immediately or mediately under raiyat. If a person claims to be holding land under a raiyat (landlord within the meaning of the Act) it does not involve any element of transfer of the raiyats (i. e. landlords) rights or interest. If there is no element of transfer. I do not see how the provisions of Sec.16 (2) (iii) of the Act can have any application. Besides, the Bihar Tenancy Act does not require any documentation for creating under-tenancy rights. The submission of mr. Shahi, accordingly, is also rejected. 10. The decision in the case of Sukhdeo Paswan (supra) relied upon by Mr. Sidheshwar Prasad Singh is no avail to him. As would appear from the judgment "a horde of applications numbering 114 resulting in initiation of 114 cases had been filed and the applications had been rejected on the basis of finding that this was being done in manner so as to usurp the lands of the land-holders. That obviously is not the situation in hand. As noticed above, the claim of the petitioner has been rejected not on the basis of any finding that it is false or frivolous but on the basis of the counter claims of respondent Nos.4 and 5. Prima facie, it appears to me that respondent Nos 4 and 5 were hands in gloves with respondent No.3 and the whole exercise was collusive. 11. For the reasons stated above, the impugned order contained in annexure-6 is set aside and the matter is remitted back for fresh considerain accordance with law. The D. C. L. R. who has passed the impugned order appears to be either in collusion with the respondents or ignorant of law. 11. For the reasons stated above, the impugned order contained in annexure-6 is set aside and the matter is remitted back for fresh considerain accordance with law. The D. C. L. R. who has passed the impugned order appears to be either in collusion with the respondents or ignorant of law. In either case, it would not be safe to permit him to deal with the proceeding on remand. I would, accordingly, direct the Collector of the district to assign the case to any other officer above the rank of Deputy collector authorised to exercise the powers of the Collector under the Act or to deal with the matter himself I make it clear that the observations made hereinabove are intended for disposal of the application and should not be construed as expression of my opinion as regards the claim of either the petitioner or the respondents. 12. This application is, thus, allowed. In the circumstances of the case, the petitioner will be entitled to the cost of this proceeding, assessed at Rs.1000/-, which will be recoverable from respondent No.3. Application Allowed