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2007 DIGILAW 255 (PAT)

Dig Vijay Narayan Singh v. State

2007-02-05

NAVANITI PRASAD SINGH

body2007
Judgment 1. Heard 2. The petitioners have challenged the proceedings under Sec. 48E of the Bihar Tenancy Act. The claimant under raiyat is respondent no. 3 and has appeared and filed a counter affidavit. 3. All the three parties have been heard and with their consent this matter is being disposed of. 4. The petitioners state that respondent no. 3 filed an application (Annexure 2) before the D.C.L.R. Jainagar under the Act claiming that he was Bataidar/under raiyat for about 45 years and was being threatened for eviction from the landlord or the landlord was about to cut away their crops. On that application there is an endorsement dated 1.2.2001 with regard to initiation of proceedings under Sec. 48E of the Act. However, Annexure 3/1, the ordersheet of the case, shows that it is instituted as Bataidar Case no. 12 of 2001 by order dated 12.2.2001. In the said order it is stated that the petition has been received on the next day, consideration would be for constituting the Board and parties to be informed. The matter thereafter was adjourned and ultimately it seems that by order dated 8.9.2001, the Sub-divisional Officer, Jainagar, who was dealing such matters recorded that "the procedure for constituting Board started. Claimant nominates a person" started claimant nominate a person. Otherside (Petitioners) sought time till next day. The proceedings are then adjourned from day to day without nominating any person and then by order dated 19.4.2002 the petitioners filed an application that the matter may be enquired into through the Circle Officer as to the actual state of affairs and this is acceeded to by the Sub-divisional Officer, Jainagar. Then again the matter is adjourned from time to time and ultimately on basis of report of Anchala Adhikari (Annexure 3) the proceedings are dropped by order dated 25.3.2003. Against this, respondent no. 3 preferred an appeal, which is registered as Bataidari Appeal No. 71 of 2004 by filing Memo of Appeal (Annexure 4) on which finding petitioners absent on 15.12.2004, an order is passed by the Additional Collector in Appeal no. 71/2003-04, which is not only allowed but respondent no. 3 is declared a Bataidar. 5. Against this, respondent no. 3 preferred an appeal, which is registered as Bataidari Appeal No. 71 of 2004 by filing Memo of Appeal (Annexure 4) on which finding petitioners absent on 15.12.2004, an order is passed by the Additional Collector in Appeal no. 71/2003-04, which is not only allowed but respondent no. 3 is declared a Bataidar. 5. On behalf of petitioners three contentions have been raised to assail the proceedings, firstly, it is submitted that initiation of proceedings, if any, were invalid, secondly, there was no initiation of proceedings within the meaning of Section 48E and, therefore, the Collector under the Act was justified in accepting the report of the Circle Officer and dropping the proceedings, not being, prima facie, satisfied and lastly, in any view of the matter the appeal, as preferred by respondent no. 3 was not maintainable as appeal under Sec. 48E is provided only against an order passed with reference to sub-sections (7) and (8) of Sec. 48E of the Act. 6. On the other hand, it is submitted on behalf of respondent no. 3 that the proceedings had been validly initiated and once that had been done, the Collector under the Act had no jurisdiction to drop the proceedings midway and that itself was wrong. He secondly submitted that as the dropping of proceedings was without jurisdiction, even it be conceded that the appeal was not maintainable then both the orders being bad both must be quashed as quashing the appellate order would give rise to an order which was without jurisdiction. 7. The State, on the other hand, in its counter affidavit, accepted the allegation of the petitioners that the petitioners were not duly noticed in the appellate proceedings. 8. Having considered the rival submissions so far as first point as raised on behalf of the petitioners is concerned, that there was no valid initiation of proceedings as contemplated under Sec. 48E and thus the Collector, under the Act, could have acted upon the report of the Circle Officer and discharged the proceedings is concerned, suffice to say that the very initial order indicates intention to initiate proceedings, which is reaffirmed by subsequent order where it is specifically mentioned about constituting the Board. Neither in the petition nor at the Bar it has been suggested that the petitioners, at any point of time, postponed to the initiation of proceedings at that stage. Neither in the petition nor at the Bar it has been suggested that the petitioners, at any point of time, postponed to the initiation of proceedings at that stage. That being so in terms of Sec. 48E, the requirement of sub-section (1) stood satisfied. In other words the authorities having material before it in the shape of an application requesting initiation of proceedings was prima facie satisfied that there was a dispute, which required resolution. He proceeded to invoke the jurisdiction under Sec. 48E (1) and thus ordered for constitution of conciliation Board. Thus, it cannot be said that either there was invalid initiation or no initiation of proceedings. 9. This being the position once proceedings are initiated then, it is the mandatory provision of Sec. 48E that takes over and a Board was necessary to be constituted, no option has been given to the Collector under the Act. It would have been a different matter where he postponed the constitution of Board and for his satisfaction ordered a preliminary enquiry into the matter. Unfortunately this was not done rather there is specific order constituting Board for reconciliation, which was not objected to by the petitioners. 10. In that view of the matter it cannot be said that there was any infirmity in the action of the Collector under the Act rather infirmity now starts by the Collector referring the matter to the Circle Officer for enquiry. Once an order for constituting Board has been passed, no jurisdiction is left with the Collector under the Act to order any sort of any enquiry. Law takes over and board has to be constituted in the manner provided in the various sub-sections of Sec. 48E of the Act. 11. Thus the Collector under the Act at this stage could not have ordered for a report in the matter, once having already ordered for constitution of Board. That being so, the dropping of the proceedings on basis of the report of the Circle Officer was an act not contemplated under the provision of Sec. 48E. Such an order is wholly without jurisdiction. 12. That being so, the dropping of the proceedings on basis of the report of the Circle Officer was an act not contemplated under the provision of Sec. 48E. Such an order is wholly without jurisdiction. 12. Coming lastly to the submission of the petitioners that appeal was not maintainable, the submission is correct for the simple reason that appeal is maintainable only against order passed under sub-sections (7) and (8) of Sec. 48E and not with reference to any order passed prior to constitution of the Board or in other words if proceedings are dropped or not initiated, the matter cannot be appealed against by the alleged Bataidar. 13. In the result, it is found that both the orders dropping the proceedings by the Collector, under the Act, and the assumption of jurisdiction by the appellate authority purporting to be under Sec. 48F are wholly without jurisdiction. The question is what is to be done in the matter. If the appellate order is set aside it will naturally give life to the orders dropping the proceedings, which as stated above, is also without jurisdiction. It is well settled principle of law, where by setting aside an order an illegal order is revived as a consequence thereof then it is appropriate that both the orders are quashed. I accordingly have no hesitation in quashing both the orders of the Collector dropping the proceedings as well as of the appellate authority allowing the appeal. The result is that this writ application is allowed in terms of aforesaid and the matter stands remanded to the Collector under the Act to proceed from the stage where he had ordered for conciliation Board and proceeds further in accordance with law.