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1997 DIGILAW 202 (PAT)

Gulabi Devi v. State Of Bihar

1997-03-11

S.N.JHA, SUDHANSU JYOTI MUKHOPADHAYA

body1997
Judgment S. N. Jha, S. J. Mukhopadhaya, JJ. 1. This letters patent appeal arises from the judgment and order of a learned Single Judge of this Court in cwjc No.6575 of 1994. The appellants, 31 in number, along with others had filed applications under Section 48e of the Bihar Tenancy Act (hereinafter called, the Act) which were rejected by the Deputy Collector Land reforms (DCLR), Teghra exercising the powers of the Collector under the Act. They came to this Court in the aforesaid writ petition. The challenge to the order of the DCLR having gone in vain before the learned Single Judge they have come in appeal before the Division bench. 2. The order of the DCLR seems to have been assailed before the learned single Judge on the ground that at the stage of initiation of the proceeding under Sec.48e (1) of the Act, the collector is not required to hold a fullfledged trial, he is merely required to refer the dispute to the Conciliation board. The DCLR however issued notice to the landlord and went in to the merits of the case and ultimately rejected the applications without following the procedure laid down under section 48e and the rules framed in that regard. Such a course, according to the appellants, was not in accordance with the Full Bench decision of this court in dhanji Singh V/s. The State of Bihar, AIR 1979 Patna 259 : 1979 BBCJ ; 1979 BLJ 621 521 (F. B.) identical submissions were made before us as well. The only point for consideration is whether the impugned order of the DCLR is in accordance with law. In other words, whether the order of the learned Single judge dismissing the writ petition, of the appellants required any modification. 3. N. P. Singh, J. who delivered the leading judgment in the case of Dhanji singh (supra) after considering the relevant provisions of the Act and the case law on the point observed: "i have no hesitation in holding that the proceeding under Sec.48e 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 about existence of one or the other requisite conditions for initiation of the proceeding, no hard and fast rule can be laid down, It will depend on the facts and circumstances of each case. On what materials and in what manner the Collector shall be satisfied about existence of one or the other requisite conditions for initiation of the proceeding, no hard and fast rule can be laid down, It will depend on the facts and circumstances of each case. " Counsel for the appellants contended that, firstly, the DCLR ought not to have issued notice to the landlord, for such a course is not warranted in view of the decision in the aforesaid case. Secondly, the DCLR having issued notice to the landlord, he must be deemed to have been taken cognizance of being prima facie satisfied about the existence of dispute. The proceeding within the meaning of Sec.48-E (1)therefore must be deemed to have been formally initiated. It was thereafter not open to him to enter upon the dispute himself and decide the same without referring it to the Conciliation Board. Reliance in support of the contention has placed on Kailash Prasad V/s. The state of Bihar, 1994 (1) PLJR 632 1994 (2) BLJ 259 Counsel also referred to the following observations in Dhanji singhs case. "the Sub-divisional Officer as Collector has not only heard both the parties but he has looked into the documents and as considered the respective contentions advanced on behalf of both the parties at the stage of initiation of the proceeding. Admittedly, this case is not one of those cases where the landlord at his own initiative appeared before the Collector, has produced such a material which established the malafide 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 respective 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 the impugned order has been passed by adopting a procedure which is not sanctioned by law. " 4. The learned Single Judge has, instead, relied on Sukhdeo Poswan V/s. The State of Bihar, 1993 (2) BLJR 958 ; 1993 (2) BLJ 353 ; 1993 (2) PLJR 211 and Brijendra Kumar Narain Singh V/s. The State of Bihar, 1992 (2) PLJR 747 ; 1993 (1) BLJ 607 . 5. " 4. The learned Single Judge has, instead, relied on Sukhdeo Poswan V/s. The State of Bihar, 1993 (2) BLJR 958 ; 1993 (2) BLJ 353 ; 1993 (2) PLJR 211 and Brijendra Kumar Narain Singh V/s. The State of Bihar, 1992 (2) PLJR 747 ; 1993 (1) BLJ 607 . 5. In Brijendra Kumar Narain Singh (supra) a Division Bench of this court held after extensively quoting the passages from Dhanji Singhs Judgment that from the ratio of the decision it is clear that the initiation of a proceeding under the Act is a quasi Judicial matter and it is open for a landlord to show to the Collector, prima facie, that the dispute raised is malafide and baseless and has been raised to harass him. In sukhdeo Paswan (supra) another division Bench of this court held again after noticing the judgment in Dhanji singhs case, that it is for the Collector to arrive at a satisfaction as to whether prima facie case for entertaining the application under Sec.48e exists or not. In that case the Collector had issued notice to the landlord and allowed him to file documents and thereafter came to the conclusion that the writ petitioners had failed to make out a case that they are bataidars of the landlord. The Division Bench held that the Collector did not commit any illegality, irregularity or irrationality in dismissing the applications filed under Sec.48e (1) 6. In the present case the DCLR on consideration of the materials produced before him came to the conclusion that the appellants were never in touch to the disputed land prior to june 1993. It was only thereafter that they tried to disturb the peaceful possession of the land-holders on the provocation of a political party. On the basis of the findings that the concerned applicants are not under raiyats within the meaning of Sec.48e of the Act and there is no relationship of landlord and tenant, he rejected the applications. It was only thereafter that they tried to disturb the peaceful possession of the land-holders on the provocation of a political party. On the basis of the findings that the concerned applicants are not under raiyats within the meaning of Sec.48e of the Act and there is no relationship of landlord and tenant, he rejected the applications. In such a situation we put a question to the counsel for the appellants that even assuming that the procedure adopted by the DCLR was not in accordance with the observations of the Full Bench in dhanji Singhs case, quoted hereinabove, in view of the nature of the findings recorded by the DCLR, which do not appear to be erroneous or unwarranted, would it have been appropriate exercise of jurisdiction for the learned single Judge to quash the order of the DCLR? Counsel for the appellants merely reiterated his submissions that the merit of the claim has to be considered by the Conciliation Board. We are unable to accept the submission, in the facts and circumstances of the case. The DCLR cannot be said to be a stranger to the process of adjudication. The application seeking declaration of bataidari rights is to be made before him and subject to appeal, it is he who has the last word in the matter, so far as the proceeding under Sec.48-E is concerned. Even where the Concitation board has been constituted, he has right to differ from its findings. And where the Board fails to submit its finding within the stipulated period, the DCLR can assume jurisdiction and proceed to decide the case on merit himself. Therefore, simply because the DCLR committed an error of procedure (assuming it to be so) in writ jurisdiction this court may not like to interfere, if the conclusions reached by him are intended to serve the ends of justice. 7. Counsel for the appellants contended that had the dispute been referred to the Conciliation Board the appellants would have led evidence in support of the claim. We see no force in the argument. It was open to them to adduce evidence documentary or even oral before the DCLR. There is no averment that they were prevented from doing so. 8. Counsel for the appellants contended that had the dispute been referred to the Conciliation Board the appellants would have led evidence in support of the claim. We see no force in the argument. It was open to them to adduce evidence documentary or even oral before the DCLR. There is no averment that they were prevented from doing so. 8. From the records it appears that as many as 43 applicants had filed separate applications at about the same time before the DCLR, only 31 of them preferred writ petition and are appellants before us. In Sukhdeo Paswans case, the Division Bench while upholding the order of the DCLR took notice of the fact that "a horde of applications" numbering 114 had been filed which was suggestive of the fact that attempt was being made in a planned manner to usurp the lands of the landlord. More or less similar situation prevails in this case. The fact that 43 applicants could file applications at about the same time seeking bataidari rights in respect of substantial area of lands, does suggest, in our view that the claim was not bona fide. 9. In the facts and circumstances of the case and for the reasons stated above, we do not find any error in the order of the learned Single Judge dismissing the writ petition of the appellants. This appeal is accordingly dismissed. Appeal Dismissed.