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2009 DIGILAW 943 (PAT)

Md. Shamsuzzama v. State Of Bihar

2009-07-20

RAVI RANJAN

body2009
JUDGEMENT 1. Mr. Anisur Rahman, Advocate files Vakalatnama on behalf of the respondent nos. 11 and 12. Let it be kept on record. 2. I have heard the parties and perused the records of this case. 3. The writ petitioners are aggrieved by order dated 22.5.2007 passed by the Sub-Divisional Officer, Baisi in Case No. 4 of 2007-2008 whereby the Sub- Divisional Officer concerned has referred the matter to the Conciliation Board for recording its findings on a petition filed by the respondent 2nd set under Section 48E of the Bihar Tenancy Act, 1885 (hereinafter referred to as "the Act".) 4. Short facts of the case which stands portrayed in the writ petition is as under: The respondents 2nd set filed a petition for initiation of the proceeding under Section 48E of the Act beore the Deputy Collector, Land Reforms, Baisi with respect to total 32.18 acres of land appertaining to different plot numbers and khata numbers of Mauza-Kashibari and Thana No. 61 as described in paragraph no.4 of this writ application. Somehow the petitioners came to know regarding the filing of the aforesaid Case No.4 of 2007-2008 and they filed detailed objection before the authority concerned refuting the allegation not only challenging their claim of being Bataidar but also asserting that at no point of time any relationship of landlord and tenant did exist between the parties. Thus, the prayer was made to reject such application at its very threshold. The Sub- Divisional Officer-cum- D.C.L.R., upon hearing both sides, has referred the matter thereafter to the Conciliation Board. The petitioner has sought quashing of the aforesaid order. 5. Learned counsel appearing on behalf of the petitioners submitted that the order under challenge is bad for the reason that though the petitioners (the landlords) appeared and filed detailed objection refuting the landlord-tenant relationship between the parties, the Sub-Divisional Officer concerned (Collector under the Act) had passed the impugned order without assigning any reason and recording any finding upon the aforesaid. Second submission is that without determination of existence of relationship of landlord and tenant, the matter could not have been referred to the Concili- ation Board as the same was not empowered for determination of such issue. In support of his submissions learned counsel for the petitioner relied upon a decision of this Court rendered by Special Bench in Dhanji Singh Vs. The State of Bihar & Ors. In support of his submissions learned counsel for the petitioner relied upon a decision of this Court rendered by Special Bench in Dhanji Singh Vs. The State of Bihar & Ors. reported in BLJR 1979 Vol. 27 (711) wherein it has been held that in the cases where landlord has appeared, the Collector has to apply his mind judicially for the purposes of initiation of the proceeding under Section 48E of the Act. It had further been submitted that it appears from the provision aforesaid itself that prior to referring to the matter to the Conciliation Board, the Collector concerned has to satisfy himself with regard to the bona fide nature of the case, existence of landlord tenant relationship and also to ensure that the proceeding has not been sought to be initiated for land grabbing purpose. 6. The respondent 2nd set have filed counter affidavit. It was contended on behalf of the respondent 2nd set that it is well settled principle of law that the Collector under the provisions of Section 48E of the Act, at the time of initiation of such proceeding, has only to satisfy itself, prima facie, regarding the bona fide nature of dispute and thereafter he has to follow the procedure which has been laid down under the provisions itself. Learned counsel for the respondents aforesaid also relied upon the same decision rendered by Special Bench in the case of Dhanji Singh (supra) to demonstrate that the Collector concerned was only to prima facie satisfy himself and there is no scope of any primary or a mini trial at the stage of initiation of the proceeding. The Collector was not required at all to determine the lis between the parties at the threshold of the proceeding as there are certain procedures to be followed for such determination. Further contention was that the dispute with regard to the existence of the landlord-tenant relationship had also to be referred to the Board itself because at the time of initiation no final decision on any point could be taken by the Collector concerned. Further contention was that the dispute with regard to the existence of the landlord-tenant relationship had also to be referred to the Board itself because at the time of initiation no final decision on any point could be taken by the Collector concerned. It was also submitted that during the pendency of this writ petition, the petitioners had appeared before the Board and there was an attempt of conciliation between the parties which ultimately failed and thereafter Board had recorded its finding that the respondent concerned were Bataidars and matter had been sent to the Collector for final determination. Once the petitioners had taken their chance and had participated in the proceeding before the Board, which since already had sent its finding to the Collector concerned, the petitioners right to challenge the initiation of proceeding stood waived. In support of his submission learned counsel drew attention of this court towards the order-sheet in the case concerned as contained in Annexure- B to the counter affidavit. It is manifest therefrom that for the purposes of constitution of Board notices were issued upon the parties and the parties appeared on 6.2.2008. Board had recorded finding that efforts of conciliation has failed and thereafter the parties were heard after making inquiry, findings had been recorded by the Board. 7. For appropriate consideration of the matter, it would be apt to quote the relevant provisions of Section 48E of the Act as under: "48E. (i) If an under-raiyat is threatened with unlawful ejectment from his tenancy or any portion thereof by his landlord or if there is a dispute between them over the possession of land crop or produce thereof either on the grouna of non-existence of relationship of landlord and tenant between them or otherwise or if an under-raiyat is or has been ejected from his tenancy or any portion thereof within twelve years before the commencement of proceeding under this section in contravention of the provisions of Section 89 the Collector may, of his own motion or on application made in this behalf by the under-raiyat, initiate a proceeding for preventing the landlord from ejecting the under-raiyat or for settlement of the said dispute or for resulation of possession to under-raiyat unlawfully ejected from his tenancy or portion thereof. [Explanation.If in the midst of the proceeding it is found that the landlord has during or before the initiation of the proceeding transferred the land to any other person who is not a party to the proceeding initiated under sub-section (1), the Collector shall make such transferee a party to the proceeding.] (ii) The Collector may, after hearing the parties, about which due notice shall have been given to them or ex parte, in cases of emergency by an order in writing prevent the landlord from ejecting the under-raiyat until disposal of the proceeding or until further orders and if he is of opinion that any crop or produce of the land which is subject-matter of dispute in the proceeding under this section is liable to speedy and natural decay, he may, if the situation so warrants and in similar manner as aforesaid direct the proper custody or harvesting or sale, as the case may be, of such crop or produce or the sale proceeds thereof. (iii) When a proceeding is initiated under sub-section (1) the Collector may refer the matter (hereinafter referred to as "dispute") to a Board to be appointed by him, for promoting the settlement of the dispute between the under-raiyat and the landlord. * * * ** * ***" 8. The Special Bench of this Court in the case of Dhanji Singh Vs. State of Bihar & Ors. (supra) has dealt with the entire scope and sweep of the Section 48E of the Act. It has been held that the order of reference to the Board does not follow automatically on presentation of Bataidari application. The first authority has to satisfy itself regarding existence of bona fide dispute before initiation of proceeding and reference of the matter to the Board. However, at the same time it has also been held that the Collector under the Act at the first instance, i.e., at the time of initiation of proceeding, cannot hold a mini-trial and decide each and every question therein rather has only to prima facie satisfy itself regarding the existence of bona fide dispute. In the aforesaid decision it had duly been held that it is not necessary for the Collector at the first instance to hear the landlord. However in some cases the landlord could be heard. In the aforesaid decision it had duly been held that it is not necessary for the Collector at the first instance to hear the landlord. However in some cases the landlord could be heard. In the present case the landlord had appeared suo motu and it is admitted that he had been heard. It would be apt to quote relevant passage of the decision in Dhanji Singh (supra) which is as under: "10. Learned counsel appearing for the petitioner, while challenging the impugned order, submitted that even if it is held that the order for initiating a proceeding under Section 48E of the Act, by the Collector, is of a quasi judicial nature, still for that he is not required to hear the landlord. In my view, this contention has to be accepted. Before passing an order the other side is to be heard only under two situations, (i) if it is required by the statute itself, or (ii) even in absence of an express provision, it is required under the principles of natural justice. So far as the present case is concerned, sub-section (1) does not say that before initiation of the proceeding the landlord must be heard. This cannot be read even on the principles of natural justice because by merely initiating a proceeding no final order is passed affecting any of the rights of the landlord. 11. Learned counsel appearing for the respondent, however, submitted that there being no bar, if the landlord appears at his own and intervenes at the time of the initiation of the proceeding, he should be heard and it should be open to him to show that the information received by the Collector is false or that the application filed by the under-tenant is not a bona fide one. In my opinion, from the scheme of Section 48E, it is clear that it does not conceive two enquiries, one preliminary and other the final. If the applicant satisfies the Collector on the basis of the materials produced before him or the Collector is satisfied on the information received by him, then without waiting for the landlord he can initiate the proceeding. If the applicant satisfies the Collector on the basis of the materials produced before him or the Collector is satisfied on the information received by him, then without waiting for the landlord he can initiate the proceeding. Of course, in some cases where the claim on behalf of the under-tenant has been made by suppressing the material facts, (sic) an order under Section 145 of the Code of Criminal Procedure between the same parties, upholding the claim of the landlord and negativing the claim of possession made by the under tenant, or a recent delivery of possession having been effected in favour of the landlord over the lands in question, then the landlord may bring to the notice of the Collector that the claim of the applicant lacks bona fide. But, the landlord cannot be permitted at that stage to convert the initiation of the proceeding, a mini trial or a parallel enquiry. He has to wait till the matter is placed before the Board." 9. As would be manifest from the above that the scheme of Section 48E of the Act does not conceive two enquiries, one preliminary and other the final. If the applicant satisfies the Collector on the basis of the materials produced before him or the Collector is satisfied on the information received by him, then without waiting for the landlord, he can initiate the proceeding. 10. Learned counsel for the petitioners drew attention of this Court towards paragraph 14 of the aforesaid decision to demonstrate that the Collector concerned ought to have recorded a finding with regard to the objections raised by the petitioners. However, in my opinion aforesaid paragraph also is of no help to the petitioner as in that case after hearing the landlord the Collector concerned purported to adjudicate the respective claims of the parties and had negatived the claim of petitioner after recording a finding. The Special Bench has found the procedure adopted by Collector be without sanction by law. 11. In the case in hand, the Collector under the Act had heard both the sides and perused the records and thereafter concluded that the matter can only be decided if it is referred to the Conciliation Board. That goes to show that there was prima facie satisfaction of existence of bona fide dispute between the parties. 11. In the case in hand, the Collector under the Act had heard both the sides and perused the records and thereafter concluded that the matter can only be decided if it is referred to the Conciliation Board. That goes to show that there was prima facie satisfaction of existence of bona fide dispute between the parties. The Collector was not needed to hold mini-trial and thereafter at the threshold to record a finding, upon the objections raised on behalf of the landlord including the issue of existence of relationship of landlord and tenant, at the threshold. In fact the nature of dispute to be referred to the Board stand described in sub-section 1 of the Section 48E itself and it is manifest from the aforesaid provision itself that the same also include the dispute with regard to the existence of relationship of landlord and tenant. Once the Collector is prima facie satisfied he has to send the aforesaid question also for consideration of the Board. 12. In view of the aforesaid, I do not find any illegality in the order under challenge. That apart, since the petitioners had already appeared before the Conciliation Board and the findings whereof had already been placed before the Collector for consideration, interference of this Court in its writ jurisdiction is not warranted at this stage. 13. As a result, this writ application fails and is dismissed accordingly.