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2005 DIGILAW 467 (PAT)

Mukhlal Ram v. State Of Bihar

2005-04-29

MRIDULA MISHRA

body2005
Judgment Mridula Mishra, J. 1. The petitioner, in this application, has questioned the legality of an order, dated 30.9.2002, passed by the Deputy Collector, Land Reforms, Bikramganj, Rohtas, in purported exercise of power u/s. 48-E of the Bihar Tenancy Act (hereinafter referred to as, the Act) in Bataidari Case No. 1 of 1982-83 (Annexure-3). 2. Petitioner filed an application on 3.6.1982 before the Anchal Adhikari, Dinara, Rohtas, for giving him protection from the unlawful ejectment by the original land holder, Kashi Sah, father of respondents 4 and 5. This application was forwarded by the Anchal Adhikari to the Deputy Collector, Land Reforms, Sasaram, who was the Collector under the Act. Petitioner claimed his bataidari right with respect to the lands of village Mahraur appertaining to khata No. 159 measuring 2.70 acres. Bataidari Case No. 1 of 1982-1983 was registered and a notice to the original land holder was issued to show cause as to why the claim of the petitioner be not accepted u/s. 48-E of the Act. The land holder appeared and filed his objection regarding the initiation of the proceeding with respect to all three plots, impleading him only as a party respondent. Kashi Sah stated that he is recorded land holder of only one plot and other two plots are recorded in the name of Radha Krishna Sah (respondent No. 4). He also stated that he owns less than ten acres of unirrigated land as such proceeding under Sec. 48-E should be dropped. The Deputy Collector, Land Reforms, Sasaram, after holding full enquiry dropped the proceeding by order, dated 14.8.1982. This order was challenged by the petitioner by filing CWJC No. 843 of 1983 which was dismissed by order, dated 5.12.1994. Petitioner preferred L.P.A. No. 9 of 1995 against the order passed in the writ application which was allowed by order dated 23.8.1996. The case was remitted to the Court of the Deputy Collector, Land Reforms, with a direction to constitute the Board in terms of Sub-sec. (3) of sec. 48-E of the Act and to refer the matter to Conciliation Board. By that time the area within which the disputed plots are located came under the jurisdiction of Deputy Collector, Land Reforms, Bikramganj, as such, petitioner filed his application before the Deputy Collector, Land Reforms, Bikramganj, to constitute a Batai Board in the light of an order and direction of this Hon ble Court. By that time the area within which the disputed plots are located came under the jurisdiction of Deputy Collector, Land Reforms, Bikramganj, as such, petitioner filed his application before the Deputy Collector, Land Reforms, Bikramganj, to constitute a Batai Board in the light of an order and direction of this Hon ble Court. Petitioners grievance is that in complete violation of the mandate of Rule 2(a) to 2(f) of the Bihar Tenancy Rules, the Deputy Collector, Land Reforms, directed the Circle Officer, Dinara, to obtain the name of panches from land lord, respondents 4 and 5, and their father. No notice was given to the petitioner in terms of Rule 2 of the Rules for raising objection regarding appointment of Circle Officer, Dinara, as Chairman of the Batai Board. Batai Board was not constituted fully even after passage of more than six months and the petitioner filed a petition for constitution of another Board. By order, dated 11.7.2000, another Board was constituted, Circle Officer, Bikramganj, was appointed as the Chairman of the Batai Board and he was directed to obtain names of panches from both sides which was illegal as the Deputy Collector, Land Reforms, himself should have constituted the entire Board instead of directing the Chairman of the Batai Board to collect the names of panches from the parties. More than six months passed but the so called Board did not submit its report, hence, another petition was filed by the petitioner for withdrawing the proceeding from Anchal Adhikari, Bikramganj. Thereafter, another Board was constituted by which Anchal Adhikari, Dinara, Rohtas, was appointed as Chairman. This time also the panches from both sides were not appointed by the Collector under the Act as such, the constitution of the Board was not in compliance of the provision u/s. 48-E and Rule 2 of the Act. The Anchal Adhikari, Dinara, Rohtas, in capacity of the Chairman of the Board, submitted his report without making any endeavour for amicable settlement between the parties and without complying with the requirement of the provisions of the Act. The Constitution of the Board was in complete violation of the mandate of Sub-sec. s (3) and (4) of sec. 48-E of the Act and Rules 2(a) to 2(f) of the Batai Rules. The Constitution of the Board was in complete violation of the mandate of Sub-sec. s (3) and (4) of sec. 48-E of the Act and Rules 2(a) to 2(f) of the Batai Rules. The Deputy Collector, Land Reforms, on receipt of the report, submitted by the Chairman of the Batai Board, passed his final order, dated 30.9.2002, rejecting the claim of the petitioner on patently misconceived notion of law. The impugned order has been challenged by the petitioner on the ground that the Batai Board was never constituted in accordance with the mandate of the Act and Rules. No endeavour was made for amicable settlement in between the parties, the so called report submitted by the Chairman of the Board was in flagrant violation of the provisions u/s. 4(6) of the B.T. Act as it was individual report of the Chairman and not of the Board. The order was passed by the Deputy Collector, Land Reforms, on the basis of such report without considering the facts and the law involved in the case. 3. Counter affidavit has been filed by respondent No. 5 stating that claim of the petitioner being an under raiyat of respondent No. 5 is absolutely false and baseless. He has never been in cultivating possession of the land. The grounds on which the petitioner has questioned the impugned order is unfounded and baseless. The provisions of Rules 2(d), 2(e) and 2(f) have fully been complied and no prejudice has been caused to the petitioner. 4. Considering the fact that the first Bataidari Board constituted by the Deputy Collector, Land Reforms, Bikramganj, remained unfunctional as such, on application filed by the petitioner, another Board was constituted and Anchal Adhikari, Dinara, was appointed its Chairman, petitioner, nominated his panches and original land lord, Kashinath Prasad, also nominated his panches. Endeavour was made for amicable settlement in between the parties but it was not successful for the reason that respondent No. 5 did not recognise the petitioner as Bataidar of plots No. 622 and 1435 of khata No. 159 of mauza Mahraur. This land exclusively belonged to Radha Krishna Prasad (respondent No. 4). Respondent No. 4 was adopted by his uncle, Banarsi Sah. These two plots were transferred by respondent No. 4 in favour of Mukhlal Ram and Ramji Sah through registered sale deeds, dated 24.6.1987 and 18.12.1986. This land exclusively belonged to Radha Krishna Prasad (respondent No. 4). Respondent No. 4 was adopted by his uncle, Banarsi Sah. These two plots were transferred by respondent No. 4 in favour of Mukhlal Ram and Ramji Sah through registered sale deeds, dated 24.6.1987 and 18.12.1986. Purchasers came in cultivating possession of the same, got their names mutated with respect to these lands and are paying rent to the State of Bihar. In this view claim of petitioner being Bataidar of these two plots not admitted by respondents and petitioner was not recognised as Bataidar. The Chairman of the Board failing in his attempt for amicable settlement, asked the parties to adduce their evidence and also examined the boundary raiyats of all three plots, who did not corroborate the claim of the petitioner. Two witnesses who were examined by the petitioner were not boundary tenants. Btaidari Board on the basis of the evidence as well as the local inspection, submitted its report before the Deputy Collector, Land Reforms, Bikramganj, who after hearing the parties and examining the records of the case, including the finding of the Board, rejected the claim of the petitioner by the impugned order. 5. Mr. B.P. Verma, counsel for the petitioner, has submitted that the impugned order has been passed in complete violation of the provisions of sec. 48-E Sub-sec. s (4) and (6) of the Act as well as Rules 2(a) to 2(f) of the Rules. Under sec. 48-E Sub-sec. (4), the Collector has to appoint a Board in the prescribed manner for settlement of the dispute between the under raiyat and the land holder. The Collector has to appoint the Chairman and two members to represent the parties to the dispute and the person appointed as a panch to represent any party shall be appointed on the recommendation of that party. In the present case, the Collector under the Act only appointed the chairmen of the Board. So far members representing the parties are concerned, they were not appointed by the Collector. The Chairman of the Board was asked to collect the names of the members which is in complete violation of the provisions under Sub-sec. (4) of sec. 48-E of the Act. Under Sub-sec. 6 of sec. So far members representing the parties are concerned, they were not appointed by the Collector. The Chairman of the Board was asked to collect the names of the members which is in complete violation of the provisions under Sub-sec. (4) of sec. 48-E of the Act. Under Sub-sec. 6 of sec. 48-E of the Act, the Chairman of the Board in under obligation to give written notice to the parties and to make endeavours to bring about an amicable settlement of the disputes. In the present case no written notice was given to the parties in the prescribed manner and no endeavour was made to bring about an amicable settlement of the dispute. Under Sub-sec. (7) in the case of failing in bringing about an amicable settlement of the dispute enquiry is to be made by the Board but individually the local inspection was not made by the Board but by the Chairman of the Board, in this view, the finding recorded by the so called Bataidari Board, is the finding of the Chairman only, in total disregard of Sub-sec. (7) of sec. 48-E of the BT Act. Further, it has been argued that under Rule 2 of the Rules also it is provided that if a proceeding is initiated under Sub-sec. (1) of sec. 48-E of the BT Act, the Collector will nominate a person to be the Chairman of the Board and simultaneously ask the Chairman of the Board and the under raiyat to indicate within three days of the order, their objection in the nomination of the Chairman. In case of an objection, the Collector will nominate another person as the Chairman, on expiry of three days period, from the date of the order by which Chairman has been appointed. The Collector will appoint another person as the Chairman of the Board. Under Rule 2(d) the Collector will ask the party to the dispute to nominate their representative to the Board and on receipt of the nomination. Under Clause (d) the Collector will issue a notice to the person appointed as Chairman and nominees to indicate within three days from the date of the notice whether their services will be available. Under Rule 2(d) the Collector will ask the party to the dispute to nominate their representative to the Board and on receipt of the nomination. Under Clause (d) the Collector will issue a notice to the person appointed as Chairman and nominees to indicate within three days from the date of the notice whether their services will be available. If within the time stipulated under Clause (a) no reply to the notice is received or no valid reason is shown by the nominees and the Chairman to serve in the Board then the Collector will appoint the Board, the Chairman and the nominees of the parties to the dispute. In the present case the Collector, under the Act, constituted the Board in total violation of the provisions under the Act as well as the Rules. The finding recorded by the Chairman was not even signed by its Board, as such, it can not be said to be finding of the Board. 6. Considering the fact that, relying on finding and the report submitted by the so called Board, the Deputy Collector, Land Reforms, Bikramganj, has passed the impugned order, the order is illegal and without jurisdiction, as such, fit to be quashed. It has also been stated by the counsel for the petitioner that the direction which was issued by this Court in L.P.A. No. 9 of 1995 has also been violated by the Deputy Collector, Land Reforms, Bikramganj. The contention of the petitioners counsel is that the impugned order should be quashed and the matter should be remanded to the Deputy Collector to constitute a Board afresh in compliance of the provisions under Sub-sec. s (4), (6) and (7) of Section 48-E of the Act as well as under Rule 2(a) to 2(f) of the Rules. 7. On perusal of the pleadings of the parties and hearing their submissions, it transpires that on remand of Batai Case No. 1 of 1982-1983, the Deputy Collector, Land Reforms, who is the Collector under the Act, has proceeded in compliance of the direction of this Court in L.P.A. No. 9 of 1995 as well as the provisions u/s. 48-E Sub-sec. s (4), (6) and (7) and Rule 2(a) to 2(f) of the Rules. The Board was constituted by the Collector, panches were also nominated but the Chairman as well as the nominated members failed to proceed in the matter. s (4), (6) and (7) and Rule 2(a) to 2(f) of the Rules. The Board was constituted by the Collector, panches were also nominated but the Chairman as well as the nominated members failed to proceed in the matter. When this fact was brought in the notice, the Deputy Collector Land Reforms, again constituted a Board appointing the Circle Officer, Dinara, as its Chairman, parties were asked to nominate their panches and they nominated their panches, efforts were made for amicable settlement, which could not succeed. 8. The original land holder refused his claim over the disputed plots as a land holder, as such, respondents No. 4 and 5 were impleaded as party. Respondent No. 4 stated that the lands have been transferred by him in the year 1986-1987 itself and the purchasers are in peaceful cultivating possession of the land. The petitioner was not recognised as Bataidar by respondent No. 4 of the disputed plots. Endeavour was made for amicable settlement of dispute. Failing in its attempt to bring amicable settlement, an enquiry was conducted by Board regarding the possession of the petitioner as Bataidar over the land. Boundary raiyats of the disputed land were examined as witnesses who stated that the purchasers are in cultivating possession of the land, none of them supported the claim of the petitioner being in cultivating possession. The Board recorded its finding against the claim of the petitioner as Bataidar. The objection raised by the petitioner that the report was not signed by the members, as such, it was not a report of the Board, rather it was a report submitted individually by the Chairman is not of much value as under Sub-sec. (6) of sec. 48-E of the Act it is mentioned, that failure on the part of any member of the Board to sign the report shall not affect the validity of the report. Even though members did not sign the report its validity can not be questioned and for all practical and legal purposes it will be deemed to be a report submitted by the Board. The Deputy Collector, Land Reforms, on consideration of the material on records, the submissions made by the parties as well as report submitted by the Bataidari Board, came to this conclusion that the petitioner is not an under raiyat of the lands under dispute. The Deputy Collector, Land Reforms, on consideration of the material on records, the submissions made by the parties as well as report submitted by the Bataidari Board, came to this conclusion that the petitioner is not an under raiyat of the lands under dispute. He is not in cultivating possession of the land and there is no apprehension of threatened ejectment from the cultivating possession by the land holder. 9. Considering the fact that there is no procedural illegality as well as the finding recorded by the Deputy Collector, Land Reforms, is based on the material brought on record, the impugned order needs no interference. 10. This application is accordingly dismissed.