Badri Paswan vs The State of Bihar and Others

Ravi Ranjan, J.—Heard learned Counsel for the petitioner and learned Counsel for the State.

This writ application has been filed by the petitioner for quashing the order dated 23.02.1999, passed by the Dy. Collector Land Reforms, East, Muzaffarpur in Bataidari Case No. 10/98-99, as contained in Annexure-1, and also the order dated 28.04.2003, passed by the Collector, Muzaffarpur in Case No. 75 Misc/98-99, as contained in Annexure-2 to this writ application.

The petitioner filed an application u/s 48E of the Bihar Tenancy Act, 1885 (hereinafter referred to as ''the Act'') before the Dy. Collector Land Reforms, East, Muzaffarpur, Respondent No. 3, which was numbered as Bataidari Case No. 10/1998, a copy of which has been annexed as Annexure-3 to this writ application. By filing the aforesaid petition, the petitioner claimed to be the Bataidar of one Anil Kumar Sharma for the lands appertaining to khata and plots, as described at the foot of the aforesaid petition (Annexure-3). The Respondent No. 3, after hearing the parties and perusal of records as also upon making spot verification, had come to the conclusion that the petitioner could not make out a prima facie case for initiation of proceedings u/s 48E of the Act and, thus, had rejected the application. It had also been noticed in the order aforesaid that earlier the petitioner had moved for a declaration u/s 40C of the Act to the effect that he had attained the status of occupancy raiyat. However, his claim could not succeed at that stage also. The order dated 24.09.1998 passed in that regard has been brought on record of this case as Annexure-4. After the aforesaid order, passed by the Respondent No. 3, rejecting the claim of the petitioner u/s 48E of the Act, the petitioner had preferred three appeals before the Collector, Muzaffarpur, Respondent No. 2. Appeal No. 75 (Misc.)/98-99 was against the aforesaid order rejecting his claim u/s 48E of the Act whereas, as per the statement made in this writ application, Case No. 60 (Misc.)/98-99 was preferred against the order dated 24.09.1998 rejecting his claim made u/s 48C of the Act, as contained in Annexure-4.

Learned Counsel could not explain, at the time of hearing of this case, as against which order, Case No. 71 (Misc.)/98-99 had been filed before the Respondent No. 2. It appears that all the aforesaid three cases were heard together and disposed of by order dated 28.04.2003 by the Respondent No. 2. However, in the present writ application, learned Counsel had confined himself to the proceedings arising out of Section 48E of the Act as also to the appeal arising thereof.

It has been submitted on behalf of the petitioner that the Respondent No. 2 had passed the order without consideration of the issues raised on behalf of the petitioner. Further submission was that the adjoining raiyats were not consulted by the Collector under the Act at the time of local inspection/spot verification. It is submitted that the appellate authority also had failed to appreciate the aforesaid facts and had wrongly dismissed the Case No. 75 (Misc.)/98-99. Further contention on behalf of the petitioner was that the Collector under the Act without referring the matter to the Conciliation Board, had passed the order rejecting the claim of the petitioner. According to him, the Respondent No. 3 was duty bound to refer the matter to the Conciliation Board, which was competent to record a finding upon the bataidari claim of the petitioner. In support of his submission learned Counsel had placed reliance upon a decision of this Court rendered in Fudan Lal Mandal and Others Vs. State of Bihar and Others, .

Learned Counsel appearing on behalf of the State submitted that there was no question of referring the matter to the Conciliation Board as the Respondent No. 3 had clearly stated in the order that he had made local inspection only for satisfaction regarding existence of a prima facie case for the purpose of initiation of the proceedings. Since there was no such satisfaction, the application of the petitioner was rejected at the threshold itself. It was also submitted that there is no provision of appeal against the order of rejection of application u/s 48(1) of the Act.

Learned Counsel drew attention of this Court towards the provision of appeal u/s 48F of the Act wherein it could be clearly found that an appeal would be available only from an order referred to in Sub-section (7) and Sub-section (8) of Section 48E of the Act.

I find substance in the submissions raised on behalf of the State. It is well settled by a long line of cases of high authority that at the time of taking a decision with regard to initiation of proceedings u/s 48E of the Act, the Collector under the Act has to prima facie satisfy himself with regard to existence of bona fide dispute. In this connection it would be apt to refer to a decision rendered by the Special Bench of this Court in Dhanji Singh v. State of Bihar and Ors. 1979 PLJR 247. In the aforesaid decision, the Special Bench has clearly held that at the threshold, at the time of hearing with regard to initiation of a proceeding u/s 48E of the Act, there is no requirement of holding a preliminary enquiry or mini trial. The Collector concerned has only to prima facie satisfy himself with regard to the bona fide claim. In the case in hands, the Collector under the Act (D.C.L.R., Muzaffarpur) had perused the records and made local inspection and had come to the conclusion that the petitioner could not make out a prima facie case of being a Bataidar of the recorded tenant, that is, the Respondent No. 4 and, as such, had rejected the application. While doing so, the Respondent No. 3 had also noticed that the claim of the petitioner u/s 48C of the Act also could not succeed in an earlier proceeding. Before this Court also, the petitioner could not make out his claim supported by any evidence leading to the fact that he was a Bataidar of Respondent No. 4. So far the appeal numbered as Case No. 75 (Misc.)/98-99, as against refusal of initiation of the proceedings u/s 48E of the Act is concerned, that was not maintainable as there is no provision under the Act for filing such an appeal. It is manifest from Section 48F of the Act, which is the relevant provision for filing appeal, that an appeal is only available with respect to the orders passed under Sub-section (7) and Sub-section (8) of Section 48E of the Act.

In Shamshul Bari Vs. The State of Bihar and Others, , a Division Bench of this Court had taken notice of the aforesaid provision of the appeal and had found that the Collector had no jurisdiction to hear the appeal against the order of the Dy. Collector Land Reforms rejecting the claim of bataidari on the ground that there was no prima facie satisfaction with regard to existence of a bona fide dispute and, thus, it had been held that the appellate order passed by the Collector was without jurisdiction. Thus, in my considered opinion, the forum of appeal was not available to the petitioner. Thus, the order passed by the Collector in appeal was without jurisdiction. However, the same would be of no help to the petitioner as he could not make out a case for quashing of the Annexure-1.

In view of the aforesaid discussions and proposition of law this Court is of the view that the petitioner has miserably failed to make out a proper case for interference by this Court into the order passed refusing to initiate a proceeding u/s 48E of the Act.

As a result, this writ application is dismissed.