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2007 DIGILAW 1885 (PAT)

Prakash Jha v. State of Bihar

2007-12-11

body2007
ORDER 1. Heard learned counsel for the petitioner, learned counsel for the State and learned counsel appearing on behalf of respondent No.5. 2. The petitioner is aggrieved by order dated 4.11.2006 initiating Bataidari Case No. 2/06-07 and constitution of Board on an application made for the purpose by respondent No. 5 and requiring the petitioner to nominate his "Panch". 3. Learned counsel for the petitioner submitted that the petitioners purchased the lands in question by a registered title deed dated 16.12.1977 from one Mahesh Kant Jha. After such acquisition of title by them, on an application by the father of the respondent No.5 claiming his status as an under Raiyat of Mahesh Kant Jha and initiation of a proceeding under Section 48E of the Bihar Tenancy Act on 13.12.1979, the petitioners questioned the same in C.W.J.C. No. 535/80. This Court by order dated 3.12.1980 held hat by virtue of the deed dated 16.12.1977, the title now vested in the petitioners and not in the aforesaid Mahesh Kant Jha. The final orders passed against Mahesh Kant Jha was not binding on the petitioners as they had not been impleaded as parties in the proceedings. The petitioners shall therefore have unrestricted enjoyment on the lands purchased by them. This would, however, not bar a fresh proceeding by the aggrieved person under Section 48E of the Bihar Tenancy Act with regard to the lands in question. 4. The father of respondent No. 5 then signed a disclaimer on 1.12.2004 denying any tenancy rights of himself and his heirs or other rights upon the lands in question. Nonetheless, he made a fresh application for declaration of his tenancy rights. After hearing the parties the proceedings were dropped by an order dated 8.5.2005. This order attained finality when the father of the respondent No. 5 did not question the same. Reliance is further placed on a report of the D.C.L.R. dated 6.9.2006 to submit that there was no occasion for the respondent No. 5 to make any application afresh for grant of Bataidari rights. Nonetheless, an application came to be made on 4.11.2006 by the respondent No. 5 after the demise of his father. 5. Learned counsel for the respondent No. 5 submitted that after an application was made by an under Raiyat, the Collector recording his satisfaction under Section 48E of the Bihar Tenancy Act was required to constitute a board for reconciliation. Nonetheless, an application came to be made on 4.11.2006 by the respondent No. 5 after the demise of his father. 5. Learned counsel for the respondent No. 5 submitted that after an application was made by an under Raiyat, the Collector recording his satisfaction under Section 48E of the Bihar Tenancy Act was required to constitute a board for reconciliation. This is what has been done and the petitioner has been required to nominate his Panch for the purpose. There is no illegality in the order requiring interference at this stage. The alleged disclaimer signed by his father was a forged document. The application by the respondent No.5 afresh was only in accordance with the observation made by this Court in C.W.J.C. No.535/80. 6. This Court has heard the counsel for the parties. 7. What is striking to this Court is the application for declaration as an under Raiyat and protection of tenancy rights by respondent No. 5 after the death of his father when the matter had attained finality during the lifetime of his father. The orders of this Court in C.W.J.C. No. 535/80 cannot be construed as a carte blanche in so far as respondent No.5 is concerned. His depeased father did not layout any challenge to the documents of disclaimer in his lifetime. 8. Counsel for respondent No. 5 relied upon a Special Bench decision reported in 1979 B.B.C.J. 521 (Dhanji Singh Vs. The State of Bihar & Ors.) in support of his submission that after an application was made, by an under Raiyat, the Collector had no option but to refer the matter for constitution of a Board to consider amicable settlement. 9. The submission on behalf of the Respondent No. 5 is too broad to be accepted and is not supported by the judgment of the Special Bench. What has been held therein is that the act of initiation of the proceeding is not mechanical but is based on the satisfaction of the Collector of the existence of circumstances prescribed by law for commencement of the same. What has been held therein is that the act of initiation of the proceeding is not mechanical but is based on the satisfaction of the Collector of the existence of circumstances prescribed by law for commencement of the same. It has been held in the relevant extract of the judgment at paragraph 8 as follows:- "8........According to learned Government advocate, who appeared on behalf of the State, the Collector has no option, after having received an information or petition from the under-tenant regarding a threatened ejectment, or a dispute about possession of the under-tenant, but to refer the same to the Board for decision. As such, according to him, there is no question of exercise of a quahi-judicial power at that stage. In my opinion, it is difficult to accept this contention. Sub-section (1) prescribes three contingencies, mentioned above, under which the Collector has to Initiate a proceeding. The Collector, before initiating the proceeding has to be satisfied on the materials produced before him or on the basis of the information received by him that one of these three requisite conditions exists. Is the Collector bound to initiate a proceeding under sub-section (1), if an allegation has been made in the petition of the under-tenant that he had been dispossessed on a date which is beyond 12 years from the date of the filing of this application? Similarly, is he bound to initiate a proceeding if the allegation or information is that the under-tenant has been dispossessed not by his landlord but by a third person? The answer in both the cases shall be in the negative. Therefore, it cannot be said that at the time of initiating a proceeding, the Collector has not to apply his judicial mind for the purpose of ascertaining as to whether the requisite conditions for initiating a proceeding exist or not." 10. Again in the relevant extract at paragraph 9 it has been held as follows:- "9.......1 have no hesitation in holding that a proceeding under Section 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." 11. 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." 11. Considering a situation like the present it has then been held at paragraph 11 as follows:- "11. Learned counsel appearing for the respondent, however, submitted that there being no bar, if the landlord appears at his own and intervenes at the time of the initiation of the proceeding, he should be heard and it should be open to him to show that the information received by the Collector is false or that the application filed by the under-tenant is not a bona fide one. In my opinion, from the scheme of Section 48E it is clear that it does not conceive to inquiries, one preliminary and other the final. If the applicant satisfies the Collector on the basis of the materials produced before him or the Collector is satisfied on the information received by him, then without waiting for the landlord he can initiate the proceeding. Of course, in some cases where the claim on behalf of the under-tenant has been made by suppressing the material facts, like an order under Section 145 of the Code of Criminal Procedure between the same parties, upholding the claim of the land- lord and negativing the claim of possession made by the under-tenant, or a recent delivery of possession having been effected in favour of the landlord over the lands in question, then the landlord may bring to the notice of the Collector that the claim of the applicant lacks bona fide. But, the landlord cannot be permitted at that stage to convert the initiation of the proceeding, in mini trial or a parallel enquiry. He has to wait till the matter is placed before the Board." 12. During the course of the present submissions, learned counsel for the respondent No. 5 fairly produced a certified copy of the application made by respondent No. 5 for initiation of proceedings under Section 48E of the Bihar Tenancy Act. The application only states that the applicant was a Bataidar for the last 37 years. That the petitioners were the landlords. That the respondent No. 5 has been unlawfully ejected and was threatened with ejectment. The application only states that the applicant was a Bataidar for the last 37 years. That the petitioners were the landlords. That the respondent No. 5 has been unlawfully ejected and was threatened with ejectment. He therefore prayed for declaration of the status as an under Raiyat and to prevent him from ejectment. Let the certified copy of the application made by respondent No.5 be kept on record. What has been noticed in the present order finds no reference in the application. 13. In the factual background of this case, in response to the initiation of the fresh proceeding No. 2/06-07 by order dated 4.11.2006 the petitioners have filed their show cause. 14. This Court therefore considers it proper to dispose off this writ application with directions that the initiation of the Bataidari Case No. 2/06-07 be decided in light of the discussions as contained in the present order whereafter the matter shall proceed in accordance with law. 15. Let such decision in terms of Section 48E of the Bihar Tenancy Act be taken within a period of six weeks from the date of receipt/presentation of a copy of this order. Needless to state that the authority adjudicating the matter at that stage would be required to fix a date and hear the parties. 16. The writ application stands disposed with the aforesaid directions.