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2007 DIGILAW 748 (PAT)

Sushila Devi v. State Of Bihar

2007-04-13

NAVANITI PRASAD SINGH

body2007
Judgment 1. Heard. 2. The petitioner has challenged the order of the Collector of the District by which her appeal against an order passed by the D.C.L.R. in 48E proceedings under the B.T. Act has been dismissed. 3. The claimant Bataidar being respondent no. 5 was noticed by this court, they appeared and time was given tp file counter affidavit. But neither any counter affidavit has been filed nor they are represented in court today. Having heard learned counsel for the petitioner and learned counsel for the State with their consent this writ application is being disposed of at the stage of admission itself. 4. It is not in dispute that the petitioner is recorded as Khatiyani Raiyat of the land in question. Respondent No. 5 sought to initiate a proceedings in terms of 48E of the B.T. Act. In the said proceedings, he made the husband of the petitioner and the brother of the petitioner (Sala and Bahnoi) as party and left out the petitioner who was the khatiyani raiyat. The petitioner had received the said property as gift from her mother-in-law (Stridhan property). This fact I have noticed only to show that by no stretch of imagination this property could be said to be joint family property even to the knowledge of the respondent no. 5, the alleged bataidar. However, the application being filed by the Respondent No. 5. D.C.L.R. being prima facie satisfied that a dispute of the nature as contemplated under section 48E existed, he referred the matter to Conciliation Board. It is not in dispute that by then petitioner had appeared in the proceedings though not added as a party and put her claim yet the Conciliation Board did not think it appropriate even to notice her, notwithstanding that she was the recorded tenant (khatiyani raiyat). The Conciliation Board-was not able to bring about amicable settlement. It conducted an enquiry and held respondent no. 5 to be a Bataidar. This recommendation was made to the D.C.L.R. and on the basis thereof, D.C.L.R. passed the order. The Conciliation Board-was not able to bring about amicable settlement. It conducted an enquiry and held respondent no. 5 to be a Bataidar. This recommendation was made to the D.C.L.R. and on the basis thereof, D.C.L.R. passed the order. While passing the said order D.C.L.R, noticed the controversy with regard to the petitioner and her right but held that the husband of the petitioner was the Karta of the joint family and he being a party, there was no necessity to make petitioner a party or noticed the petitioner even though it was undisputed that the petitioner was the khatiyani raiyat and not her husband or her brother. 5. Being aggrieved by the said order petitioner filed a writ application in this court bearing C.W.J.C. No. 5442 of 1998 which was disposed of on 11.5.1999 holding that against the order of D.C.L.R. a statutory appeal to the Collector lies and as such the petitioner was directed to prefer an appeal and it was observed that the delay would be condoned. The petitioner under those circumstances filed an appeal before the Collector of the district which has been dismissed by the impunged order primarily on two grounds. Firstly, the Collector has held that the appeal was not maintainable inasmuch as the order that was passed by D.C.L.R. was in terms of Section 48E(6) and not in. terms of Section 48E(7) or (8). In terms, of Section 48F appeal is provided only against orders passed with reference to Section 48E(7) or 48E(8) and not 48E(6). Secondly, he held that the husband of the petitioner being a party, there was no necessity for making petitioner a party to the proceedings notwithstanding the fact that the petitioner was the khatiyani raiyat having received the land from her,mother-in-law. 6. Having considered the matter, in my view both grounds given by the Collector are not sustainable. Firstly, so far as maintainability of appeal is concerned the Collector firstly should have considered the order by this court wherein it was held that an appeal lay and it is on basis of that order he condoned the delay in filing the appeal. Once that was so, the Collector should have restrained himself from going into the question, as if sitting in appeal over orders of this court. This is not permissible. Once that was so, the Collector should have restrained himself from going into the question, as if sitting in appeal over orders of this court. This is not permissible. Secondly and more importantly reference to Sections 48E(6), (7), (8) and 48F would show that an order in terms of Section 48E(6) is passed when a settlement has been arrived at. It is obvious where amicable settlement has been arrived at, there is no question of an appeal being preferred and as such no appeal is provided. So far as sub-sections (7) and (8) of Section 48E are concerned, they deal with cases where no settlement has been arrived at and yet a recommendation is made by the Board or an order passed by the Collector independently. in the present case, it can be seen that in fact there was no amicable settlement arrived. In fact the recommendation of the Board was without notice to the party concerned in such an event if any order could be said to be passed, it could only be an order with reference to Section 48E(7) and that being so in terms of Section 48F, an appeal did lie to the Collector of the District. The Collector was thus wrong in holding that the appeal was not maintainable. 7. Coming to the next ground given by the Collector that merely because the husband of the petitioner was made a party and noticed, even though petitioner was the Khatiyani Raiyat, as held by the Collector this was sufficient for in his view, it was joint family property. This is wholly misconceived. The very fact that respondent no. 5 Bataidar had made the husband of the petitioner and the brother of the petitioner party i.e. sala and Bahnoi respectively, itself indicates that the property in question was not a joint family property. There cannot be a joint family property as between the two different sides of the family, the husbands side and the wifes side. This was apparently also known to the respondent no. 5 and that is why he made two male members related to the petitioner party without petitioner being impleaded. Petitioner appeared but was not permitted to participate nor noticed by the Conciliation Board. The failure to make petitioner a party and/or to notice her in the proceedings was fatal to the entire proceedings. The Collector was thus wrong in holding otherwise. 8. Petitioner appeared but was not permitted to participate nor noticed by the Conciliation Board. The failure to make petitioner a party and/or to notice her in the proceedings was fatal to the entire proceedings. The Collector was thus wrong in holding otherwise. 8. That being the position not only the appellate order but the original order of D.C.L.R. also stand vitiated and both the orders are, hereby quashed. 9. This writ application is allowed.