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2007 DIGILAW 516 (PAT)

Shibu Soren & Ors. v. Md. Soaib

2007-03-13

BARIN GHOSH, NAVANITI PRASAD SINGH

body2007
Judgment Barin Ghosh and Navaniti Pd.Singh JJ. 1. We have heard learned counsel for the appellants as well as the learned counsel appearing for the State. No one appeared on behalf of the writ petitioner-respondent. 2. In the instant case, the Collector refused to initiate a proceeding under Sec. 48E of the Bihar Tenancy Act (in short "B.T Act"). The applicant, therefore, preferred an appeal. The appeal was entertained and the matter was remanded back to the Collector. The landlord at that stage approached the writ Court and contended that in terms of the provisions contained in the B.T. Act, an appeal does not lie when the Collector refuses to initiate a proceeding under Sec. 48E of the B.T. Act. The writ Court accepted the contention of the. landlord and, accordingly, allowed the writ application and thereby quashed the appellate order. 3. In the present appeal, it is being contended by the appellants, i.e. the applicant before the Collector, that while the appellate order was an illegal order, by removing that illegal order, the writ Court has preserved the original illegal order as was passed by the Collector while refusing to initiate the proceeding under Section 48E of the B.T. Act. It is the contention of the appellants based on the Full Bench judgment of this court rendred in Dhanji Singh V/s. State of Bihar and others, AIR 1979 Patna 259 that at the stage of initiating a proceeding under Sec. 48E of the B.T. Act, the Collector could not initiate a mini-trial or a preliminary trial as was sought to be done in the instant case. It is the contention of the appellants that there is an order under Sec.145 of the Code of Criminal Procedure (in short "Cr.PC") whereby and under it has been held that the appellants are in possession of the land in question, and though the same was placed by the appellants alongwith their application for initiation of a proceeding under Sec. 48E of the B.T. Act, the Collector while refusing to initiate such a proceeding, brushed aside the said order under Sec.145 of Cr.PC by saying that the same is illegible. 4. From the order of the Collector, it appears that he really proceeded on the basis of an inspection carried out by his subordinate. 4. From the order of the Collector, it appears that he really proceeded on the basis of an inspection carried out by his subordinate. In view of the law settled by the Full Bench of this Court, the Collector, at the stage of initiating a proceeding under Sec. 48E of the B.T. Act, is duty bound to discharge judicial duty and, accordingly, he could either himself or through a subordinate have the land in dispute inspected for the purpose of arriving at a view as to whether the claim of the applicant that he is an under raiyat may be sustained ultimately or not, but while relying upon an inspection report prepared by a subordinate, as was done in the instant case, it was the boundened duty of the Collector to look into other documents relied by the applicant seeking initiation of proceeding under Sec. 48E of the B.T. Act. In the instant case, as aforesaid, the applicant had relied on an order passed under Sec.145 of Cr.PC which was ignored by the Collector only on the ground that the same is illegible. The fact remains that on the date the order was passed, the applicant was not present. Before concluding the matter, no peremptory notice was given to the applicants to appear. At the same time, no notice was given to the applicants to produce a legible copy of the order passed under Sec.145 of Cr.PC. 5. In those circumstances, it appears to us that the Collector, at the stage of initiation of the proceeding under Sec. 48E of the B.T. Act, while was required to look into the documents on record for the purpose of arriving at a view, he ignored altogether the materials on record and relied solely upon an inspection report which was prepared in the absence of the appellants. We are, therefore, constrained to hold that as the appellate order was an illegal order so was the order appealed against and, accordingly, while allowing the writ petition, it was the boundened duty of the writ Court to quash the appellate order as well as the original order which we do hereby by allowing the appeal. 6. In the circumstances, the appellate order as well as the order passed by the Collector stand quashed. 6. In the circumstances, the appellate order as well as the order passed by the Collector stand quashed. The matter shall be treated to be at the stage as if the application has been filed and the Collector must decide whether to initiate or not a proceeding under Sec. 48E of the Act on the application on the basis of the inspection report already on record as well as the order passed under Sec.145 of Cr.PC, a legible copy whereof must be furnished by the appellants to the Collector within a period of one month from today.