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2006 DIGILAW 71 (PAT)

Mojib Ansari v. State Of Bihar

2006-01-19

AFTAB ALAM, NAVIN SINHA

body2006
Judgment Aftab Alam and Navin Sinha JJ. 1. This Letters Patent Appeal at the instance of the landholder arises from a bataidari proceeding under Section 48E of the Bihar Tenancy Act (hereinafter referred to as the Act only). The appeal is directed against the order passed by the learned Single Judge by which the writ petition filed by the appellant challenging the appellate order in the proceeding was dismissed and the order passed by the Collector, declaring respondent no. 6 as bataidar with regard to the disputed land was upheld. 2. The dispute relates to a piece of land measuring 14 kathas 11 dhurs in area being part of a larger plot bearing no. 4882 with the total area of 1 bigha 1 katha 2 dhurs, situate in Village Kulharia in the district of Madhubani. The land was admittedly owned by one Jagdamba Devi. She sold it to one Rajendra Mahtha in the year 1963 who in turn sold it to the present appellant on 7.3.1968. Respondent No. 6 claims to be the bataidar of the land since the time of its original owner Jagdamba Devi, in 1979, he filed two claims under Section 48E in succession. The first claim was made against the legal heirs of Jagdamba Devi and the second claim was made impleading the present petitioner with the clarification that after filing of the first claim he came to learn about the transfers of the land as stated above. 3. The D.C.L.R. constituted a Bataidari Board. From the proceedings of the Board it appears that the Punch of the landholder supported his claim and the punch nominated for the claimant-bataidar supported his claim of bataidari. An attempt was made for amicable settlement but that remained unsuccessful. From that stage it appears that the Board did not function as one body but further proceedings were taken up by the Anchal Adhikari, Jhanjhar-pur (Chairman of the Board) all by himself keeping away the two Punches of the parties. The Anchal Adhikari made a personal visit to the disputed land and found that the claimant-bataidar (respondent no. 6) was in fact in cultivating possession of the land for the past many years. He accordingly, submitted a report that was signed by him alone and not by any other member of the Board (the Punches of the two sides). 4. The Anchal Adhikari made a personal visit to the disputed land and found that the claimant-bataidar (respondent no. 6) was in fact in cultivating possession of the land for the past many years. He accordingly, submitted a report that was signed by him alone and not by any other member of the Board (the Punches of the two sides). 4. The D.C.L.R. disagreed with the report submitted by the Anchal Adhikari and passed an order dated 24.4.1981 rejecting the claim of respondent no. 6. It is a brief order, from which it appears that he found and held that the apelllant was in possession of a total area of only 1 bigha 10 kathas 8 dhurs 11 kanwas of land and hence, no claim of bataidariwould lie against him. The claimant-bataidar (respondent no. 6) filed an appeal against this order before the Collector, Madhubani which was recorded as Case No. 17/1981-82. The appeal was finally allowed by order dated 9.11.1984. Against this order the appellant filed C.W.J.C. No. 5736 of 1984 which was rejected by the writ court by judgment and order dated 24.9.1996. 5. Mr. Wasi Akhtar, Senior Advocate, appearing on behalf of the appellant submitted that the learned Single Judge failed to appreciate that the Collector had declared respondent no. 6 as bataidar of the disputed land relying solely upon the report submitted by the Anchal Adhikari, which in the eye of law was not a report of the Bataidari Board and, therefore, it could not form the basis for such a finding and declaration. We find substance in this submission. We have gone through the order dated 9.11.1984 passed by the Collector as well as the order passed by the writ court coming under appeal before us. It is noted above that from the stage the Bataidari Board failed to make the parties arrive at an amicable settlement the Anchal Adhikari veritably took over the functions of the Board himself. From the proceedings of the Boards and the final report submitted by the Anchal Adhikari it is evident that no enquiry was made by the Board as such and the report too was not by the Board. The report was by the Anchal Adhikari and it was based on an enquiry made by him alone. On the basis of this report, therefore, it was not permissible in law to determine the rights of the parties. 6. Mr. The report was by the Anchal Adhikari and it was based on an enquiry made by him alone. On the basis of this report, therefore, it was not permissible in law to determine the rights of the parties. 6. Mr. Birendra Prasad Verma, learned Senior Counsel appearing on behalf of respondent no. 6, submitted that the order of the original authority was equally illegal and he erroneously mixed-up the provisions of Sections 48C and 48E of the Act. Mr. Verma submitted, and in our view quite rightly, that the provisions of Sections 48C and 48E operate in different spheres and the conditions of Section 48C had no relevance to a proceeding under Section 48E of the Act. But an illegal order passed by the original authority cannot justify another illegality committed by the appellate authority. In case the order passed by the D.C.L.R. suffered from an infirmity of law, the appropriate course would have been to set aside that order and to remit the matter for fresh adjudication, in accordance with law. 7. On the basis of discussions made above, we are clearly of the view that both the appellate order passed by the Collector against the landholder as well as the order passed by the S.D.O., rejecting the claim of bataidari by respondent no. 6 were illegal and unsustainable. We, accordingly, set aside the order of the writ court coming under appeal before us as well as the two orders passed by the Collector and the S.D.O., respectively. The matter is remitted to the S.D.O., Jhanjharpur for proceeding afresh in this matter. The S.D.O. shall constitute a Board in terms of sub-section (3) of Section 48E of the Act and shall proceed in the matter from that stage. 8. Having regard to the fact that the matter has become very old the two sides are directed to appear before the S.D.O., Jhanjharpur alongwith a copy of this order on February 20, 2006. The S.D.O., Jhanjharpur shall constitute the Board without any delay and shall make an effort to conclude the proceeding and pass a final order within six months from the date of the first appearance of the parties. 9. In the result, this appeal and the writ petition from which it arises are allowed, but with no order as to costs.