Bibi Podina Khatoon vs The Sate of Bihar and Others

Nagendra Rai, J.—The present application has been filed by the Petitioner for quashing the order dated 23.1.1995, contained in Annexure-5, passed by the Addl. Collector, Purnea, in case No. 246/83, by which he has set aside the order of the D.C.L.R. passed in exercise of power of the Collector u/s 48-E of the Bihar Tenancy Act (hereinafter referred to as the Act), whereby the D.C.L.R. has rejected the claim of Respondent No. 6 as bataidar.

Respondent No. 6 filed a petition u/s 48-E of the Act alleging that he is bataidar of the Petitioner and he is threatening him to dispossess from the lands, of R.S. Plots No. 44 and 45 (total area 0.91 decimals) situated in village Bahadurpur, in the district of Purnea.

The proceeding was Initiated by the D.C.L.R. and the matter was referred to the Board. The Board made an attempt to arrive at an amicable settlement, but no amicable settlement was made between the parties. The matter was considered by the Board and it found that Respondent No. 6 is not a bataidar and thereafter sent a report to the D.C.L.R., vide Annexure-3. The D.C.L.R. agreeing with the said finding passed an order dated 15.12.82 negativing the claim of Respondent No. 6 as bataidar.

It is to be mentioned here that during survey operation the land has been recorded in the name of Respondent No. 6 as sikmidar. However, in a proceeding u/s 145 Code of Criminal Procedure the possession of the Petitioner has been declared and during consolidation proceeding the land has been recorded in the name of Petitioner. After taking into consideration the aforesaid fact, the Board found that the claim of Respondent No. 6 is not tenable in law and the D.C.L.R. agreed with the said finding. Thereafter Respondent No. 6 preferred an appeal before the Collector which was transferred to the Addl. Collector, who, by his order dated 23.1.95, has set aside the order of D.C.L.R. and directed the Respondent No. 6 to approach the S.D.O. for protection. The only ground given by him for setting aside the order was that the revenue Court has no right to disbelieve the entry made in the survey khatian.

Learned Counsel for the Petitioner submitted that the order passed by the Addl. Collector is without jurisdiction, as at the relevant time there was no provision of appeal u/s 48-E of the Act against the order of the Collector under the Act agreeing with the finding of the Board. At that time, the remedy of appeal was available only against the order of the Collector under the Act in a case where he disagreed with the finding of the Board. He also submitted that once there is a dispute with regard to relationship of landlord and tenant, u/s 48-E of the Act, the Board as well as the Collector under the Act has to go into the said question and decide the same on the basis of the materials on the record and the survey entry in the name of under raiyat does not debar the authority to decide the question of relationship of landlord and tenant.

Learned Counsel appearing for the Respondents, on the other hand, contended that once the survey entry was made in favour of Respondent No. 6 showing him as under raiyat then the authority in exercise of power u/s 48-E has no power to sit over the same and, as such, the Addl. Collector has rightly set aside the order of D.C.L.R. and this Court in writ jurisdiction should not interfere with the aforesaid order even if it is found that no appeal is maintainable against the order of the Collector under the Act.

If the Board submits its report/finding, then the Collector under the Act may dispose of the proceeding in terms of the finding of the Board u/s 48E(7) of the Act and if he disagrees with the finding of the Board then he shall follow the procedure u/s 48-E(8) of the Act. Section 49-F of the Act, at the relevant time, provided an appeal only against the order passed under Sub-section (8) of Section 48-E, meaning thereby that only in case of disagreement with the finding of the Board, there was remedy of appeal. The provision of appeal against the order passed u/s 48-E(7) was brought by the Bihar Tenancy (Amendment) Act, 1986, which came into force in 1987 in that view of the matter, it is clear that at the . relevant time appeal was not maintainable against the order of the Collector under the Act agreeing with the finding of the Board and, as such, the learned Counsel for the Petitioner is right in submitting that the appeal was without jurisdiction.

u/s 48-E, if there is a dispute with regard to relationship of landlord and tenant, then that question has got to be decided because without any finding on the said point any order cannot be passed in favour of under raiyat. It will be open to the parties to adduce evidence in support of their case.

The entry in the survey record of right is one of the evidence, but it is difficult to accept the contention raised on behalf of the Respondent No. 6 that survey entry is conclusive and the authority cannot go beyond the entry made in the survey record of right. No doubt, there is a presumption of correctness of the entry with regard to the matter entered therein, but, that does not mean that it is conclusive, in the sense that no other document repudiating that entry can be considered by the authority under the Act.

In this case, as stated above, the consolidation authority as well as the Magistrate in a proceeding u/s 145 Code of Criminal Procedure have found the Petitioner in possession and the Board having considered the said documents rejected the claim of Respondent No. 6.

For the aforesaid reason the application is allowed and the impugned order, contained in Annexure-5, is set aside. There shall be no order as to cost.