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2012 DIGILAW 1389 (PAT)

Shiv Narayan Yadav v. State Of Bihar

2012-09-28

KISHORE K.MANDAL

body2012
ORDER 1. Petitioner claiming himself to be under tenant in respect of the subject land detailed in paragraph 4 of the application made an application before the respondent Deputy Collector, Land Reforms seeking protection under Section 48E of the Bihar Tenancy Act (for short “B.T. Act”) giving rise to Case No. 27 of 1998-99. The said application was finally rejected by order dated 2.12.2000 (Annexure-2). Aggrieved thereby, the petitioner filed a revision application before the respondent Collector giving rise to the Bataidari Revision No. 827 of 2001-02. The same was rejected by order dated 28.2.2003 (Annexure-3) giving rise to the present writ petition. Heard Mr. Mukesh Kumar Jha for the petitioner and Mr. Jaipuriyar for respondent No. 5. A counter affidavit has been filed on behalf of the respondent No. 5 which is taken on record. 2. Foundational layout of the claim of the parties may briefly be noticed. The petitioner claims himself to be under tenant/bataidar in possession thereof continuously. When the respondent No. 5 threatened him with eviction therefrom, he filed a proceeding in the Court of Deputy Collector, Land Reforms bearing Case No. 27 of 1998-99 wherein the Court after having found a prima facie case allowed the parties to nominate Panches. As soon as the Panches were nominated by both the parties, the Conciliation Board was constituted headed by the respondent Circle Officer, Kadwa (respondent No. 4) and by order dated 13.7.1999, the same was referred to the said Board for proceeding in accordance with law and to make recommendation. The entire order-sheet of the Batai Board has been enclosed as Annexure-1 series. Counsel for the petitioner submits that by order dated 12.1.2000, the respondent Circle Officer set the matter for enquiry on 19.1.2000 and in the meantime, on 17.1.2000, he made local inspection of the subject land without any notice to the parties and found that the respondent No. 5 was in possession of the subject land and there was no witness available on the plot and accordingly, on 17.1.2000 itself, recommended for dismissal of the claim. The records were thereafter sent to and received in the Court of respondent Deputy Collector, Land Reforms who vide impugned order dated 2.12.2000 (Annexure-2), relying on the report of the Batai Board, rejected the claim of the petitioner. Aggrieved thereby, the petitioner filed revision which also stood rejected. 3. The records were thereafter sent to and received in the Court of respondent Deputy Collector, Land Reforms who vide impugned order dated 2.12.2000 (Annexure-2), relying on the report of the Batai Board, rejected the claim of the petitioner. Aggrieved thereby, the petitioner filed revision which also stood rejected. 3. Learned counsel for the petitioner submits that from bare perusal of the order-sheet, it would appear that the matter was directed to be posted on 19.1.2000 but in the meanwhile, on 17.1.2000, the respondent Circle Officer made enquiry behind the back of the petitioner and made the said recommendation which is wholly arbitrary and illegal. He next submits that it would also appear therefrom that no effort whatsoever was made by the Circle Officer to first amicably resolve the dispute between the parties which is/was mandatory for the said respondents in view of the provisions contained in Section 48E(6) of the B.T. Act. Reliance in this regard has been placed on a Full Bench judgment of this Court rendered in the case of Hari Prasad Mandal versus Additional Collector (1978 P.L.J.R. 636). In the submission of the counsel, if there has been complete disregard of the said provision then the entire proceeding taken thereafter shall stand vitiated in law. Mr. Jaipuriyar, learned counsel for private respondent, on the other hand, supported the impugned order. He contends that from the report of the Circle Officer it would appear that the applicant-writ petitioner was not in cultivating possession of the land. If the writ petitioner was not in cultivating possession of the subject land then there was no question of making an effort for amicable settlement. He next submits that the revision, in the facts and circumstances of the case, was not maintainable before the respondent Collector as the respondent Deputy Collector, Land Reforms agreeing with the report of the Batai Board passed the impugned order. Learned counsel, therefore, submits that the revision preferred by the petitioner was rightly rejected by the respondent Collector. He also submits that the petitioner cannot set up a new case without making any pleadings in respect thereof. He submits that no such pleadings has been made in the writ petition. Learned counsel for the petitioner, in reply, submits that the aforesaid stand was taken before the Deputy Collector, Land Reforms. In the present writ petition also, the said ground has been taken by filing supplementary affidavit. 4. He submits that no such pleadings has been made in the writ petition. Learned counsel for the petitioner, in reply, submits that the aforesaid stand was taken before the Deputy Collector, Land Reforms. In the present writ petition also, the said ground has been taken by filing supplementary affidavit. 4. Heard the rival submissions made by the parties and perused the materials on record. In my view, the core issue in this application is whether the respondent Circle Officer has acted in accordance with law. The entire order-sheet of the Conciliatory Board/Batai Board is on record as Annexure-1 series. It does not appear therefrom that any effort was made by the said respondent to make an effort for amicable settlement between the parties and having failed in the said regard made any enquiry allowing the parties to lead evidence. The order-sheet (Annexure-1) indicates that the matter was taken up in presence of the parties on 12.1.2000 and was adjourned to 19.1.2000. The order-sheet thereafter records that on 17.1.2000, the Circle Officer visited the subject land and found the respondent No. 5 in peaceful cultivating possession over the subject land. Relying on such local inspection made by him without due notice to the parties and allowing them to lead evidence in support of their respective cases, the recommendation was made to reject the claim of the petitioner which has been accepted by the respondent Deputy Collector, Land Reforms by the impugned order dated 2.12.2000. In the case of Hari Prasad Mandal (supra), this Court observed as under in paragraph 6: “The next contention of Mr. Shree Nath Singh is that the finding of the Board is vitiated on account of the failure on the part of the Board to make endeavours to bring about an amicable settlement of the dispute which is fatal to the proceeding, being contrary to Sub-Section (6) of Section 48E of the Act. Shree Nath Singh is that the finding of the Board is vitiated on account of the failure on the part of the Board to make endeavours to bring about an amicable settlement of the dispute which is fatal to the proceeding, being contrary to Sub-Section (6) of Section 48E of the Act. Sub-section (6) on which reliance is placed, may usefully be reproduced:- “The Chairman of the Board to which a dispute is referred shall give written notice to the under-raiyat and his landlord in the prescribed manner and the Board shall make endeavours to bring about an amicable settlement of the dispute is brought about, the Board shall forthwith submit a report containing the terms on which settlement had been brought about to the Collector, who may dispose of the proceeding in accordance with the terms of the report: Provided that failure on the part of any member of the Board to sign the report shall not affect the validity of the same.” From the aforesaid provisions it is apparent that after the matter is referred to a Board, which is in the nature of an Arbitration Board, the first thing that the Board is required to do is to notice the parties and make endeavours to bring about an amicable settlement of the dispute between the parties. If the Board succeeds in bringing about an amicable settlement, the Board is required forthwith to submit a report containing the terms of settlement and the Collector thereafter is to dispose of the proceeding in accordance with the terms of the report. It is only where the Board does not succeed in bringing about an amicable settlement of the dispute, the Board under Sub-section (7) of the Section 48E is to make enquiry regarding the claim of the bataidar. Sub-section (7), which is relevant in this regard, may also be usefully quoted: “Where a Board does not succeed in bringing about an amicable settlement of the dispute, it shall make enquiry into the same, receive such evidence as it considers necessary, record its findings on the disputes and transmit the entire record of the proceeding forthwith to the Collector who may dispose of the proceeding in accordance with the terms of the findings. Provided that failure on the part of any member of the Board to sign the finding shall not affect the validity of that finding: Provided further that if any member does not want to sign the findings of the Board he will submit his disagreement on the findings in writing falling which the Chairman will submit his notes on the subject.” From the aforesaid provisions it is manifest that the provision with regard to endeavour by the Board for an amicable settlement is a “must” and without making such an effort the Board cannot assume jurisdiction to enquire into the matter referred to the Board. From the order sheet of the Batai Board, which is Annexure-C to the supplementary affidavit to the counter affidavit filed by respondent no. 3, it is apparent that the Board had not made any endeavour for amicable settlement before entering upon the enquiry. Such an effort, if any, had been made after examination of the witnesses, which is not the proper stage for it. From the order dated 6.4.76 (Annexure-C), last paragraph, it appears that 12.4.76 was fixed as the date for the Board to make recommendation and it is mentioned therein as follows: “IS BICH DONO PANCH IS BAD KE SAMBANDH ME EK MAT HONE KI KOSHIS KARENGE”. 5. This will not amount to endeavours on the part of the Board to bring about an amicable settlement. It will amount to the Chairman asking the two Panches of both sides for making efforts for amicable settlement. That is not what the statute requires. It is thus manifest that the finding of the Board has been arrived at without complying with the provisions of Sub-section (6) of Section 48E and as such it is illegal. As the position is the same in all the cases, the order of the Deputy Collector Incharge Land Reforms (respondent no. 2) affirming such a finding of the Board will be vitiated in all the cases on account of the aforesaid illegality. It was the duty of the Deputy Collector Incharge Land Reforms to see that the Board complied with the mandatory provisions of Sub-section (6) of Section 48E of the Act before proceeding to enquire into the matter. 2) affirming such a finding of the Board will be vitiated in all the cases on account of the aforesaid illegality. It was the duty of the Deputy Collector Incharge Land Reforms to see that the Board complied with the mandatory provisions of Sub-section (6) of Section 48E of the Act before proceeding to enquire into the matter. The order of respondent No. 2, therefore, affirming the finding of the Board is also illegal on that score.” The provisions contained in Section 48E(6) of the B.T. Act has, therefore, been held to be mandatory. Facts evident from the order-sheet clearly indicate that no such endeavourment at all was made by the Board. The claim of the petitioner cannot be rejected on the ground that no such plea has been raised in the writ petition. In fact, this question does not arise in this application as the petitioner took that plea in the Court of Deputy Collector, Land Reforms as well as before this Court by filing supplementary affidavit. Relying on an ex-parte local inspection without adhering to the mandatory requirement of law, a report was submitted which became the basis of the order of the respondent D.C.L.R. This Court would, therefore, hold that the order passed by the Deputy Collector, Land Reforms dated 2.12.2000 (Annexure-2) is bad in law. The subsequent order passed by the respondent Collector affirming the said order is also, therefore, held bad in law. For the reasons noted above, the order dated 2.12.2000 passed by the Deputy Collector, Land Reforms as well as the revisional order dated 28.2.2003 (Annexure-3) are quashed and set aside. The matter goes on remand before the respondent Deputy Collector, Land Reforms who will provide fresh opportunity to the parties to nominate their Panches and thereafter proceed to decide the matter afresh in accordance with law. Considering the age of litigation, this Court would expect that both parties should appear before the said respondent within four weeks along a copy of the present order enabling the said respondent to proceed and dispose of the said proceeding in accordance with law as quickly as possible. The application stands allowed. No order as to costs.