Kartik Singh and Another vs State of Bihar and Others

Birendra Prasad Sinha, J.—This writ application is directed against an order dated 8.7.1981 contained in Annexure-2. This order has been passed u/s 48E(8)of the Bihar Tenancy Act (hereinafter referred to as the Act) in Case No. 95/23 of 1980-81 by the Deputy Collector Land Reforms, Madhepura, respondent no. 2 declaring respondent no. 3 as Bataidar over 2.98 acres of land appertaining to khata no. 298, khesra No. 303, Khata No. 200, Khesra No. 304 and Khata No. 181, Khesra No. 230. Respondent no. 3 Lakhan Sahni claimed that he was a Bataidar over 7 plots measuring 9 bighas 281/2 (sic) kathas belonging to the petitioner. A Board was constituted and witnesses of both sides were examined. After considering their evidence and other materials on record the learned Anchal Adhikari came to the ultimate finding that respondent has forcibly cultivated the land in question in that year and had sown Kalai in it. It was recommended that if that was acceptable, the respondent no. 3 may be declared as a Bataidar. The relevant portion of the finding, which is in Hindi is quoted hereunder :

This recommendation is contained in Annexure-1 and is dated 2.6.1981.

Mr. Shiva Nandan Roy Learned Counsel appearing on behalf of the petitioner has submitted that respondent no. 3 cannot be declared as a Bataidar on the basis of the finding arrived at by the Board which is contained in Annexure-1. His submission is that no person can be held to be a Bataidar if he has occupied the land by force.

According to section 4of the Act there are three classes of tenants, namely, (1) tenure holder including under-tenure holder, (2) Raiyats and (3) Under-raiyats, that is to say tenants holding, whether immediately or mediately under-raiyats. The word ''tenant'' has been defined in section 3which means a person who holds land under any person, and is, or but for a special contract would be liable to pay rent for that land to that person. In order to become an under-raiyat there must be some element of agreement or contract between the raiyat and the under-raiyat. The relationship between the landlord and the tenant must exist on the basis of which the under-raiyat claims possession over the land. Section 48Eof the Act provides a remedy against threatened ejectment of an under-raiyat and restoration of possession to him if the under-raiyat is illegally ejected. According to section 48E if an under-raiyat is threatened with unlawful ejectment from his tenancy or any portion thereof by his landlord or if there is any dispute over the possession of the land, crop or produce thereof either on the ground of non-existence of relationship of landlord and tenant between them of otherwise, the Collector may on his own motion or on an application made in this behalf by the under raiyat initiate a proceeding, for preventing the landlord from ejectment of the under-raiyat or for settlement of the said dispute or for restoration of possession to the under raiyat unlawfully ejected. The procedure has been set out in section 48E as to how the dispute shall be resolved. First an effort shall be made for an amicable settlement of the dispute and failing that the Board shall make an enquiry into the matter, receive such evidence as it considers necessary and record its finding on the dispute and transmit the records to the Collector for disposing of the proceeding in accordance with the terms of findings. Sub-section (8) of section 48E lays down the procedure under which the Collector in cases of disagreement with the finding of the Board may pass certain orders but where there is no disagreement the order has to be passed under sub-section (7) "in accordance with the terms of the finding" of the Board. The finding of the Board in the instant case is that respondent no. 3 is a Bataidar but had forcibly occupied the land and had sown Kalai in that land. It is obvious that forceful possession of certain piece of land will not confer any Bataidari right on a person. The basis of claim of Bataidari must be some past agreement between the landlord and the under-raiyat. In absence of such a finding by the Board the Collector has no right to declare the person as Bataidar. Although the order in Annexure-2 is purported to have been passed u/s 48E(8) of the Act but it cannot be said to be an order u/s 48E(8). This order has been passed in agreement with the recommendation of the Board and not in disagreement of its recommendation. It would have been a different matter if the Collector had disagreed with the finding of the Board and adopted the procedure laid down u/s 48E(8) of the Act but having agreed with the recommendation of the Board I do not think the Collector could declare respondent no. 3 as the Bataidar "in accordance with the terms of the finding". In the facts and circumstances of this case, this application must succeed and it is accordingly, allowed. The order contained in Annexure-2 is quashed. There shall be no order as to costs.