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2008 DIGILAW 70 (PAT)

Raj Kishore Singh v. State of Bihar

2008-01-11

body2008
ORDER Heard learned counsel for the petitioner and learned counsel for the State. Although notices were duly served upon respondent nos. 5 and 6 but they have not chosen to appear and contest the matter before this Court. 2. The petitioner prays for setting aside the order dated 16.12.2002 passed in Bataidari Case No. 31/1995-96 by the Deputy Collectorl Land Reforms, Madhubani Sadar on remand as contained in Annexure-5, by which he has arbitrarily rejected the claim of the petitioner to be declared as Bataidar without constituting a fresh Batai Board even after appearance for the first time by the respondent-land-owner in the case. The petitioner further seeks setting aside of the order dated 28.6.2004 passed by the District Collector, Madhubani in Bataidari Appeal No. 71/ 2002-03, as contained in Annexure-6, by which he has dismissed the appeal and upheld the said order dated 16.12.2002 of the DCLR. He also seeks a direction upon the DCLR to constitute a Batai Board and thereafter decide the dispute in accordance with law. 3. The facts of this case are that the petitioner filed an application on 5.9.1995 before the DCLR, Madhubani under Section 48E of the Bihar Tenancy Act claiming Bataidari rights over Plot Nos. 2242, 2249 and 2250, total area 18 Katha situated at village Sukki, P.S. Khajauli, District-Madhubani which he claimed to have been cultivating for the last 20 years and with respect to which he alleged that respondent nos. 5 and 6 are attempting to unlawfully eject him. In the aforesaid matter notices were issued but the respondent nos. 5 and 6 had not appeared before the DCLR and thus the Batai Board was constituted in terms of the provisions of the Act and on the basis of the report of the Batai Board the order was passed in favour of the petitioner by order dated 10.6.1997. The said order was thereafter challenged by respondent nos. 5 and 6 before the District Collector by filing Batai Appeal No. 34/1997-98 in which it was claimed that the notices had not been validly served upon them and thus the findings in the said proceedings are contrary to the provisions of law. The matter was remanded by the Collector to the DCLR by order dated 12.11.2000. 4. 5 and 6 before the District Collector by filing Batai Appeal No. 34/1997-98 in which it was claimed that the notices had not been validly served upon them and thus the findings in the said proceedings are contrary to the provisions of law. The matter was remanded by the Collector to the DCLR by order dated 12.11.2000. 4. On remand the DCLR did not constitute a fresh Batai Board and after hearing the parties passed an order rejecting the application under Section 48E by order dated 16.12.2002. Thereafter the petitioner filed an appeal against the same before the District Collector being Batai Appeal No. 71/2002-03 which was dismissed by order dated 28.6.2004. 5. Learned counsel for the petitioner mainly submits that the matter having been remanded by the Collector by order dated 12.11.2000 to the DCLR, the proceedings had to be gone into de novo in accordance with the provisions of the Act. It was for the first time that the respondent nos. 5 and 6 were appearing in Section 48E proceedings before the DCLR and thus he ought to have constituted a fresh Batai Board having one member each nominated by the two parties and the Chairman nominated by him. By not doing so he has acted completely in violation of the provisions of Act and usurped the powers which are not vested in him. It is thus submitted that the order dated 16.12.2002 passed by the DCLR being based upon usurpation, of jurisdiction is contrary to law and fit to be set aside and the District Collector had gravely erred in not doing so by order dated 28.6.2004. 6. In support of the aforesaid proposition learned counsel for the petitioner relies upon three decisions. In the case of Lakshmi Prasad Bhagat & Anr. Vs. 6. In support of the aforesaid proposition learned counsel for the petitioner relies upon three decisions. In the case of Lakshmi Prasad Bhagat & Anr. Vs. The State of Bihar and Others : 1979 PLJR 82 = 1978 BBCJ 750 , a Division Bench of this Court while considering the effect of the expression "may refer the matter (hereinafter referred to as 'dispute') to a Board" occurring in sub-section (3) of Section 48E of the Bihar Tenancy Act, held that the expression 'may' has to be read as mandatory in the context of the case and once the proceeding is initiated by the Collector under the Act then he has no jurisdiction to decide the matter himself without constituting a Board in the first instance and he is bound to constitute the Board for promoting settlement of the dispute and only if he disagrees with the findings of the Board or if the Board fails to transmit the findings within six months he may decide the proceedings himself but in no circumstances, he can override the initial mandatory requirement of sub-section (3) to constitute the Board. 7. The aforesaid decision of the Division Bench has been affirmed by a Special Bench decision of this Court in the case of Dhanji Singh Vs. The State of Bihar and Others: 1979 BBCJ 521 . To the same effect is the decision of the Supreme Court in the case of Ram Narain Sharma Vs. The State of Bihar and Others: 2003(3) PLJR (SC)187. 8. On the basis of the aforesaid decision it is submitted by learned counsel for the petitioner that reference of the dispute to a Board being a mandatory requirement, it was not open to the DCLR to have proceeded to decide the matter again without referring the same to a fresh Board. It is submitted by learned counsel that the matter having gone back to the DCLR, the earlier constitution of the Board and the earlier findings of the Board had no relevance in the eye of law since the same had been assailed by respondent nos. 5 and 6 on the ground that they were not duly noticed before such proceedings were taken. 9. 5 and 6 on the ground that they were not duly noticed before such proceedings were taken. 9. Learned Standing Counsel No. 8 appearing for the State, on the other hand, contended that the DCLR having once constituted the Board during the earlier stage of the proceedings there was no requirement for him to have again constituted a fresh Board after the matter was remanded by the Collector and it was open to the DCLR to decide the matter afresh after hearing the parties which he has done and thus according to him, there is nothing wrong in the order of the DCLR and the appellate order passed thereafter by the District Collector, Madhubani. 10. On a consideration of the rival submissions this Court finds much force in the contention of learned counsel for the petitioner. It was clearly the stand of respondent nos. 5 and 6 in the earlier appeal filed by them before the Collector that they had not been validly served notices and thus the entire proceedings were non est and they ought to be re-heard in the matter. The matter having been remanded by the District Collector, such re-hearing being allowed to them would definitely involve the opportunity to participate in the Board's proceedings through their representatives and thus for the said purpose a fresh Board had to be mandatorily constituted by the DCLR which has not been done. In the said circumstances, it cannot be said that the proceedings were duly carried on in accordance with law by the DCLR on remand and any finding recorded by him thereby would amount to usurpation of the jurisdiction of the Board under Section 48E (3) of the Act. 11. For the aforesaid reasons, this writ application is allowed. The order dated 28.6.2004 passed by the District Collector in Batai Appeal No. 71/2002-03 and the order dated 16.12.2002 passed by the DCLR, Madhubani Sadar in Bataidari Case No. 31/1995-96 both are set aside and the matter is remanded to the DCLR, Madhubani Sadar to proceed afresh in the matter after constituting a Batai Board in accordance with law and in the light of the observations made above.