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2008 DIGILAW 10 (PAT)

Jagdish Kumar v. State Of Bihar

2008-01-04

NAVIN SINHA

body2008
Judgment 1. Heard learned counsel for the petitioner, for the State and Respondent No. 4. 2. A Bataidari case was preferred by Respondent No. 4 before the D.C.L.R., Naugachia. The claim was rejected. An appeal was then preferred by Respondent No. 4 before the Collector, Bhagalpur, which came to be allowed by order dated 21.5.2004 holding him to be a Bataidar. 3. Learned counsel for the petitioner submitted that the Bataidari claim of Respondent No. 4 came to be rejected on 20.6.2001 arriving at a prima facie finding that the claim was not maintainable. The order was, therefore, one under Section 48E(1) of the Bihar Tenancy Act (hereinafter to be referred as the Act). This order was not appealable under Section 48F of the Act. An appeal lay only against an order passed under sub-section (8) of Section 48E of the Act. He placed reliance on a Division Bench judgment of this Court Shivanandan Roy & Ors. V/s. The State of Bihar & Ors., 1979 0 PLJR 475 in support of his submissions. 4. Learned counsel for Respondent No. 4 in support of the impugned order submitted that the D.C.L.R. was not correct in rejecting the Bataidari claim at the very initial stage without referring the matter to the Conciliation Board. The appellate authority for this reason after discussion of the materials placed before him arrived at the conclusion that the petitioner was a Bataidar and allowed the appeal. In any event, no objection had been raised by the petitioner of the nature presently sought to be urged of lack of jurisdiction before the appellate authority. 5. In the case of Shivanandan Roy & Ors. vs. The State of Bihar & Ors. (supra) relied upon by the petitioner, a Bataidari claim had been rejected under Section 48E(1) of the Act. An appeal was preferred against the order when the matter was remanded to the L.R.D.C. holding that he erred in dismissing the claim without referring the matter to the Conciliation Board. On remand the L.R.D.C. allowed the claim which was then assailed before this Court by the landholder. The challenge was that since the appeal itself was without jurisdiction all subsequent actions were invalid. On remand the L.R.D.C. allowed the claim which was then assailed before this Court by the landholder. The challenge was that since the appeal itself was without jurisdiction all subsequent actions were invalid. This Court held that the order not being one under Section 48E(8) of the Act, no appeal under Section 48F of the Act was maintainable against an order passed under Section 48E(1) of the Act, refusing to initiate a proceeding on the ground that Bataidar had not been able to make out a prima facie case. 6. The fact that the petitioner may not have raised the objection of jurisdiction specifically also does not impress this Court. It is settled law that consent cannot confer jurisdiction on an authority which otherwise does not possess the same in law. In any event, the impugned order itself states that the petitioner had objected to the maintainability of the appeal proceeding. 7. The appellate order dated 21.5.2004 is set aside. The application is allowed. 8. This shall, however, not prejudice the rights of Respondent No. 4 in claiming any right to which he may be entitled in law in any appropriate proceedings before a competent forum.