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2006 DIGILAW 432 (PAT)

Sheonath Sah v. State Of Bihar

2006-05-08

S.K.KATRIAR

body2006
Judgment S.K.Katriar, J. 1. This writ application arises out of a proceeding u/s. 48E of the Bihar Tenancy Act 1885 (hereinafter referred to as the Act). The four petitioners have joined this writ petition seeking to challenge the appellate order dated 21.11.2000 (Annexure 2), passed by the learned Additional Collector, East Champaran, in Bataidari Appeal No. 3/98-99 Anutha Sahni V/s. Anadi Nath Dev, whereby he has dismissed the appeal preferred by the bataidar (the present petitioners) in purported exercise of the appellate power conferred on him under Sec. 48F of the Act. The learned appellate authority upheld the order dated 16.11.1998 (Annexure 1), passed by the learned Land Reforms Deputy Collector, Raxaul, in Bataidari Case No. 486/98 and 484/98, whereby the application of the present petitioners u/s. 48E(i) of the Act for declaration of their bataidari rights with respect to the land In question and for protection of unlawful ejectment from their tenancy, was rejected. 2. According to the writ petition, Petitioner No. 1 (Sheonath Sah) filed Batadari Case No. 486/98 with respect to land bearing plot No. 487, covering an area of 2 katha 16 dhurs, khata No. 72; pilot No. 489, covering an area of 7 kathas 5 dhurs, khata No. 72, plot No. 485, covering an area of 1 katha 1 dhur, and plot No. 541 covering an area of 3 katha, 1 dhurs and in all a total area of land covering 19 kathas and 3 dhurs. Petitioner No. 2 (Motilal Sah) filed Bataidari Case No. 484/98 with respect to plot No. 474, covering an area of 3 katha 4 dhurs, khata No. 72 and plot No. 482, covering an area of 3 katha 14 dhurs and plot No. 483, covering an area of 2 katha 6 dhurs, and Khata No. 15, plot No. 377 covering an area of 9 katha 8dhur, plot No. 379 covering an area of 5 katha, the total being 1 bigha, 3 katha 12 dhurs. All the lands are situate in village Lakshmipur, PS Adapur, District East Champaran. Both the applications along with similar applications were rejected by order dated 16.11.98 (Annexure 1), passed by learned LRDC, Raxaul. The present petitioners preferred statutory appeal in terms of sec. 48F of the Act which has been rejected by the impugned order. 3. All the lands are situate in village Lakshmipur, PS Adapur, District East Champaran. Both the applications along with similar applications were rejected by order dated 16.11.98 (Annexure 1), passed by learned LRDC, Raxaul. The present petitioners preferred statutory appeal in terms of sec. 48F of the Act which has been rejected by the impugned order. 3. While assailing the validity of the impugned action, learned Counsel for the petitioners submits that the two authorities have passed the impugned orders without complying with the mandatory provisions of sec. 48E(iii) of the Act, whereby it is incumbent upon the learned first authority to refer the matter to the Board. He relies on the judgment of a Division Bench of this Court reported in 1979 PLJR 82 : 1979 Patna 169 Lakshmi Prasad V/s. State of Bihar. He further submits that rejection of an earlier bataidari application u/s. 48E of the Act is no bar to the filing of a fresh bataidari application. He relies on a Full Bench judgment of this Court reported in 1979 PLJR 247 Dhanji Singh V/s. State of Bihar. 4. Learned Standing Counsel has supported the impugned action. He submits that the learned first authority is entitled to determine a prima facie case for reference to the Board in terms of sec. 48E(iii) of the Act for promoting the settlement of disputes between the landlord and under-raiyat. He relies on the judgment reported in 1999 (2) PLJR 167 Parmanand Oraon V/s. State of Bihar. 5. Learned Counsel for respondent No. 4 (the landlord, has supported the impugned action. He submits that the learned first authority is entitled to determine the question whether or not the bataidars have made out a prima facie case and/or have filed a bondfide application to initiate kthe proceeding and refer it to the Board. If yes, a proceeding can be initiated for reference to the Board to bring about an amicable settlement and repdort He relies on the following reported judgments: (a) 1979 PLJR 247 (FB) Dhanji Singh V/s. State of Bihar (b) 1992 (2) PLJR 747 (DB) Brijendra Kr. Narain Singh V/s. State of Bihar (c) - Lakshmi Pd. Bhagat V/s. State of Bihar (d) - Shankar Mandal V/s. DCLR (e) 2000 (3) PLJR 79 Jalpa Soren V/s. State of Bihar (f) 1995 BBCJ 39 Mukh Lal Ram V/s. State of Bihar 6. Narain Singh V/s. State of Bihar (c) - Lakshmi Pd. Bhagat V/s. State of Bihar (d) - Shankar Mandal V/s. DCLR (e) 2000 (3) PLJR 79 Jalpa Soren V/s. State of Bihar (f) 1995 BBCJ 39 Mukh Lal Ram V/s. State of Bihar 6. I have perused the materials on record and considered the submissions of learned Counsel for the parties. The Full Bench judgment of this Court in the case of Dhanji Singh V/s. State of Bihar (supra) deals with the entire scope and sweep of sec. 48E of the Act. It has, inter alia, been held that the order of reference to the Board does not follow automatically on submission of the bataidari application. The learned first authority has to apply his judicial mind to the proceeding. He can hear the landlord at that stage without converting it into a mini trial and decide the question whether or not it is a fit case for reference to the Board in terms of sec. 48E(3) of the Act. In appropriate cases, opportunity may be given to the landlord at the time of initiation of the proceeding itself in order to prove that the case is frivolous and malafide. The learned first authority has to find out a prima facie case and in appropriate cases in finding out the prima facie case, he cannot shut out the landlord from appearing before him and showing that the proceeding sought to be initiated is malafide and baseless. It was further held that once such a prima facie case is held to have been made out, then it is incumbent on the part of the learned first authority to initiate a proceeding u/s. 48E and refer the matter to the Board for settlement. 6.1 A Division Bench of this Court in the case of Lakshmi Prasad V/s. State of Bihar (supra) held that the expression "may" occurring in sec. 48E(3) of the Act means that if the learned first authority, on being satisfied about the existence of any of the three conditions prescribed by sec. 48E of the Act, initiates a proceeding, he must refer the dispute to a Board for promoting the settlement of the dispute between the under-raiyat and the landlord. 48E(3) of the Act means that if the learned first authority, on being satisfied about the existence of any of the three conditions prescribed by sec. 48E of the Act, initiates a proceeding, he must refer the dispute to a Board for promoting the settlement of the dispute between the under-raiyat and the landlord. There is, therefore, no escape from the conclusion that once the proceeding is initiated, the learned first authority under the Act has no jurisdiction to decide the matter itself without constuting a Board in the first instance, and he is bound to constitute the Board for promoting settlement of the dispute. 6.2 A Division Bench of this Court in Brijendra Kr. Narain Singh V/s. State of Bihar (supra) held that initiation of a proceeding u/s. 48E of the Act is a quasi judicial matter and it is open to the landlord to show to the learned first authority, prima facie that the dispute raised is malafide and baseless and meant to harass him. Initiation of a proceeding u/s. 48E of the learned first authority depends upon the satisfaction that a prima facie case has been made out. Where no such case is made out, initiation of such a proceeding is not permissible. It was further held that, therefore, where various earlier proceeding under different enactments did not prima facie show the claimant as under-raiyat, it can be said that prima facie case is not made out requiring the learned first authority to initiate proceeding under Section 48E of the Act. 6.3 Another Full Bench of this Court in Shankar Mandal V/s. DCLR. Supaul (supra), held that sec. 48E of the Act applies to agricultural holdings only. The applicant has to prove the existence of holdings of under-raiyat within the meaning of the Act. The application cannot be entertained in the absence of these pleas. 6.4 A learned single Judge of this Court held in Jalpa Soren V/s. State of Bihar (supra) that the learned first authority is not duty bound to refer all the cases in a routine way to the Board. He may refer for amicable settlement of the dispute only when a prima facie case is made out. Rejection of a vexatious claim under the garb of a land-grab movement by the learned first authority is not assailable. He may refer for amicable settlement of the dispute only when a prima facie case is made out. Rejection of a vexatious claim under the garb of a land-grab movement by the learned first authority is not assailable. 6.5 Another learned single Judge in the case of Mukhlal Ram V/s. State of Bihar (supra) held that while initiating a proceeding u/s. 48E of the Act, the learned first authority has to be satisfied about existence of the requisite conditions for initiation of a proceeding. He is not bound to initiate a proceeding no sooner an application is filed. Reference of the dispute under the Act before the Board is not automatic. 6.6 The Division Bench Judgment reported in (1997) 2 BLJ 293 Gulabi Devi V/s. State of Bihar as well as the D.B. Judgment reported in 1993 (2) PLJR 211 Sukhdeo Paswan V/s. State of Bihar are to the same effect. 7. On a perusal of the relevant authorities on the point, it is manifest that a bataidars application u/s. 48E of the Act must satisfy the three conditions mentioned in sec. 48E of the Act. He must further satisfy that it is a bonafide application, is not a vexatious and repetitive application and is not an attempt at land- grabbing. Determination of these aspects of the matter in a quasi-judicial proceeding like the present one needs judicial application of the mind. It is open to the learned first authority to afford an opportunity to the landlord at the preliminary stage. The same should be determined without holding a mini trial. In case the learned first authority comes to the conclusion that it does not qualify to be referred to the Board in terms of Sec. 48E of the Act, then he is not bound in law to initiate a proceeding and refer it to the Board. In case he comes to the conclusion that the application does qualify, he is then bound in law to initiate a proceeding u/s. 48E of the Act and refer to the Board for settlement between the bataidar and the landlord and report. After the reference has been made, he must wait for the report of the Board. Law provides for situations where the Board refuses to submit its report. 8. After the reference has been made, he must wait for the report of the Board. Law provides for situations where the Board refuses to submit its report. 8. The learned first authority obviously,d therefore, did not commit an error in law hearing the landlord at the prelimianry stage, in order to determine a prima facie case, whether or not it is a mala fide or vexatious application, whether or not to initiate the proceeding and refer the dispute to the Board. 9. Coming to the facts and circumstances of the present case, it appears that both the authorities have concurrently found that the petitioners have not been able to make out a prima facie case and are not bonafide applicants and has, therefore, refused to Initiate the proceeding and refer the dispute to the Board in terms of sec. 48E(3) of the Act. They have concurrently found that the landlords are a large family none of whom owns more than 10 kathas of land. On the face of it, the very first contention in terms of sec. 48E(3) of the Act. They have concurrently found that the landlords are a large family none of whom owns more than 10 kathas of land. On the face of it, the very first contention in terms of sec. 48C of the Act is not satisfied which reads as follows: 48-C. Acquisition of right of occupancy by under-raiyats.- Every person who, for a period of twelve years, whether wholly or partly before or after the commencement of the Bihar Tenancy (Amendment) Act, 1938 (Bihar Act 11 of 1938), has continuously held land as an unter-raiyat in any village, whether under a lease or otherwise, shall be deemed to have acquired, on the expiration of that period, a right of occupancy in the land which he has so held for the said period: Provided that an under-raiyat shall not, irrespective of the duration of his holding any land as an under-raiyat, acquire any right of occupancy - (i) in such area of the land to be selected and declared by his landlord in the prescribed manner as together with the area of land already held by the landlord under his cultivation does not exceed the following limits, namely: (a) five acres of land irrigated by flow irrigation work, lift irrigation work or tube well owned, constructed, maintained, improved or controlled by the Central or the State Government or by a body corporate constituted under any law or by tube-well owned or maintained by the landlord or; (b) ten acres of other land, or (ii) in the land within the ceiling area fixed by law of a landlord who is a widow or a person suffering from blindness, leprosy or paralysis or is a person of unsound mind or a person in the service of the Army, Navy or Air Force of the Union of India during the period the landlord remains a widow or suffers from blindness, leprosy or paralysis or remains of unsound mind or remains in the service of the Army, Navy or Air Force of the Union of India. 10. Law is well settled that if a land-owner owns land less than the area indicated in sec. 48C of the Act, then the application for bataidari rights is not maintainable which is obviously the position in the present case. 10. Law is well settled that if a land-owner owns land less than the area indicated in sec. 48C of the Act, then the application for bataidari rights is not maintainable which is obviously the position in the present case. It has further been found that between 1978-1992, the bataidars and their agnates have altogether filed 37 similar applications for bataidari rights with respect to the lands in question all of which were rejected. Another vital finding recorded by the learned authorities is that some of the bataidars are less than 30 years of age, and claim to have been in possession and tilling the lands for more than 20 years, which means that they became bataidars when they were less than 10 years of age, and has been taken to be a circumstance against the bataidars. The authorities have, therefore, concluded that the petitioners have raised false, fabricated and baseless claims. No material has been brought to my notice to take a different view on facts. The impugned order cannot be faulted. 11. I, therefore, do not find any merit in this writ petition and is accordingly dismissed. However, in the facts and circumstances of the case, there will be no order as to costs.