Mukhlal Ram vs The State of Bihar and Others

D.P. Wadhwa, C.J. and Aftab Alam, J.—This appeal, at the instance of an under raiyat, is directed against a judgment and order dated December, 5, 1994 passed by a learned single Judge of this Court, dismissing C.W.J.C. No. 843/1983 filed by the Appellant.

The Appellant filed an application u/s 48E of the Bihar Tenancy Act (hereinafter referred to as ''the Act'') before the Circle Officer, Dinara claiming that for the past 24 years he was the under raiyat of Kashi Sah (Respondent No. 3) in respect of three plots of land. The Circle Officer forwarded the application to the Deputy Collector Land Reforms, Sasaram who on 25.6.1982 issued notices to both the parties to show cause why a proceeding u/s 48E of the Act be not initiated. On 13.7.1982, the Deputy Collector Land Reforms passed an order, directing the Circle Officer and the Officer Incharge, Dinara police station to ensure that the Appellant was not dispossessed from the disputed land. Later, Respondent No. 3 appeared before the Deputy Collector Land Reforms and denied the claim of bataidari raised against him by the Appellant. It was stated on behalf of Respondent No. 3 that the Appellant''s claim was falsified by the fact that he had described him (Respondent No. 3) as the landlord in respect of all the three plots in dispute. According to Respondent No. 3, only plot No. 1595 appertaining to khata No. 159, belonged to him and he had no concern with the other two plots in dispute, i.e. plot Nos. 620 and 535 of the same khata which belonged to another person Radha Krishna Prasad.

On such a plea being raised, the Deputy Collector Land Reforms became satisfied that the Appellant''s claim was not bonafide and hence by order dated 14.8.1982 he rejected the petition tiled by him even without constituting a Board and referring the dispute to it.

The Appellant challenged the order passed by the Deputy Collector Land Reforms before this Court in C.W.J.C. No. 843 of 1983. Relying upon the Full Bench decision of this Court in Dhanji Singh Vs. State of Bihar and Others, it was contended on behalf of the Appellant that the Deputy Collector Land Reforms in rejecting his claim without constituting a Board and referring the bataidari dispute to it had exceeded his jurisdiction, in as much as his action amounted to holding an enquiry to which he was not authorised in law.

On behalf of Respondent No. 3, it was submitted that the Deputy Collector Land Reforms was fully entitled to be satisfied that the claim raised by the Appellant was bonafide and it was not frivolous or malicious and unless the Deputy Collector Land Reforms was so satisfied, he was not obliged to initiate a proceeding u/s 48E of the Act and to constitute a Board for referring the dispute to it. The submission was supported by the decisions of this Court in Jute and Gunny Brokers (Pvt.) Ltd. v. The State of Bihar and Ors. 1976 B.B.C.J. 48 and Beuni Yadav and Others Vs. Land Reforms Deputy Collector and Others, On a consideration of the submissions advanced on behalf of the parties, the learned single Judge found and held as under:

From a bare reference to the relevant provisions of the Act as also the judgment of the Full Bench as noticed above, it is evident that the Collector is not bound to initiate a proceeding no sooner an application is filed on behalf of an under raiyat. He has to apply his judicial mind and in appropriate cases, he may reject such a prayer. The reference of the dispute under the Act before the Board is not automatic and without application of mind. It is well known where a particular Act vests power in an authority to initiate or not to initiate a proceeding on its own, it cannot be said that such opinion can be recorded without application of mind to the facts of the case.

As I have already noticed, Mr. Verma has unnecessarily made a grievance saying that the D.C.L.R. conducted an inquiry as prescribed under the Act. From perusal of the order, it would appear that the Petitioner could not satisfy that there was a bonafide dispute under the Act. It further reveals that the Petitioner wrongly mentioned in his application that all the three plots belong to Respondent No. 3. In my view, the D.C.L.R. rightly rejected his claim. If he was not in a position to disclose the name of his landlord with respect to two other plots, a doubt can safely be raised about the genuineness of the entire claim. Besides the aforesaid, the D.C.L.R. has also noticed the statement of Respondent No. 3, in his show cause that he had only 9.48 acres of unirrigated land.

The writ petition filed by the Appellant was accordingly dismissed.

The scope of the Collector''s power u/s 48E of the Act came up for consideration before a Full Bench of this Court in the case of Dhanji Singh (supra). In that decision, it was held that the scheme of Section 48E provided that inquiry into a bataidari dispute is to be made by a Board to be constituted under Sub-section (3) of Section 48E and the law did not envisage two inquiries, one preliminary (by the Collector) and the other final (by the Board). There was, thus, no scope for the Collector to hold a preliminary inquiry or an inquiry within an enquiry. However, the Hon''ble Judges of the Full Bench were quite alive to the fact that some times frivolous and vexatious claims too were raised and, therefore, the Hon''ble Mr. Justice Birendra Prasad Sinha, a member of the Full Bench, in his concurring judgment, made the observation that in appropriate cases opportunity might be given to the landlord at the time of the initiation of the proceeding itself to show that the case was frivolous and mala fide. His Lordship further observed that it was open to the Collector to find out a prima facie case and it therefore, followed that he would not shut the landlord from appearing before him and showing that the proceeding sought to be initiated was mala fide and baseless. In this regard, it was further observed as follows:

How it will be done will surely, depend upon the facts of each case.

The decision in Dhanji Singh''s case conclusively and if we may say so with respect very correctly defines the parameters of the Collector''s power before initiating a proceeding u/s 48E of the Act. However, difficulty sometimes arises while applying the ratio of Dhanji Singh''s case to the given facts and circumstances of a case. How far the inquiry made by the Collector can be said to be within the legal limits? And when does it cross the limits and assumes the nature of a preliminary inquiry on the merits of the claim? To what length can the Collector go to find out a prima facie case and to arrive at his satisfaction regarding the claim not being frivolous or vexatious? If one, examines this Court''s decisions on this point, one would find that in many cases, it has been held on the authority of Dhanji Singh that the Collector was fully justified in rejecting the bataidari claim even without constituting the Board as there were sufficient reasons for him to be satisfied that the claim was not bona fide. And in a large number of cases It has been held, again following the decision in Dhanji Singh that the action of the Collector in rejecting the claim on his own was bad and in doing so the Collector had exceeded his jurisdiction. Thus, to our mind in the ultimate analysis the answer to the above questions would depend, as rightly pointed out by B.P. Sinha, J. in his aforequoted observation on the facts and circumstances of each case. The facts of this case nicely illustrate the point.

It was submitted before the Deputy Collector Land Reforms that the Appellant had wrongly described Respondent No. 3, as the landholder in respect of all the three disputed plots; Respondent No. 3, admitted being the owner of only one of the disputed plots and the other two plots according to him, did not belong to him, but belonged to another person Radha Krishna Prasad. Here was thus, a bataidar who did not even know the landlord, under whom he claimed bataidari rights over the disputed lands. It might not have been unreasonable to consider this circumstances as sufficient to hold that the claim of bataidari raised by the Appellant was frivolous, vexatious and malicious and the learned Deputy Collector Land Reforms held accordingly.

Further, from the passage quoted above from the judgment coming under appeal, it appears that the same circumstance also weighed with the learned single Judge to hold that the Collector was justified in rejecting the Appellant''s claim.

What, however, it appears, was not brought to the notice of the learned single Judge is the fact that Radha Krishna Prasad is no one else but the own son of Respondent No. 3 and this fact, to our mind, completely alters the situation. No claim of bataidari could be rejected as frivolous on the sole ground that the father of the recorded tenant was described as the landlord. Having regard to the realities of agrarian life in this State, it would not be uncommon for a bataidar to deal with a person ''A'' in connection with his bataidari for years and decades without being aware that the recorded tenant in respect of the land was not ''A'' but his son or father or any other member of the family. Had this fact been pointed out to the learned single Judge, the decision of the case, in our opinion, would have been otherwise. We are, therefore, of the definite opinion that the Deputy Collector Land Reforms committed an error in rejecting the Appellant''s claim on the ground that his petition described Respondent No. 3 as the landlord, though the two disputed plots were recorded in the name of his son.

Mr. Kamla Pati Singh, learned Counsel appearing on behalf of Respondent No. 3, relied upon a division Bench decision in Brijendra Kumar Narain Singh and Others Vs. State of Bihar and Others In that decision the claim of the applicant-bataidar was rejected inter alia on the following grounds:

-In the survey of 1914, the ancestors of the applicant had filed objections against the entry made therein which was rejected.

-The ancestors of the applicant had claimed title of the land and not any right on the basis of being under-raiyat, and had filed a suit for recovery of possession which too was dismissed.

-The possession of the landholders was challenged in prohibitory proceedings, but the claim put forward by the applicant''s ancestors was rejected.

-Even in the rent fixation proceeding, the objections made by the ancestors of the applicant were rejected.

-In the ceiling proceedings, no claim of being an under raiyat was made by the applicant.

Mr. Singh also relied upon a single Judge decision in Beuni Yadav and Others Vs. Land Reforms Deputy Collector and Others, In that decision also the claim of the Bataidars was rejected on the ground that on a number of previous occasions in similar bataidari proceedings and in a proceeding u/s 144 Code of Criminal Procedure and in a Sessions trial the applicants had made similar claims and on each occasion their claim had been rejected.

It is, thus, obvious that the decisions relied upon by Mr. Singh are based on entirely different set of facts and have no application to the facts of this case.

Mr. Singh, lastly submitted that Respondent No. 3 had only 9.48 acres of unirrigated land and hence he was insulated against any proceeding u/s 48E of the Act In our opinion, the submission is wholly without substance. The extent of the area of land held by a landlord is relevant only u/s 48C of the Act in terms of which a person having held the land as an under-raiyat for a period of 12 years or more may raise a claim of acquisition of occupancy rights. In a proceeding u/s 48E of the Act, the extent of land held by the landlord has absolutely no relevance.

Mr. Singh, in support of his submission relied upon a Bench decision of this Court in Jute and Gunny Brokers (Pvt.) Ltd. 1976 B.B.C.J. 48. The observations made in that decision were simply in the nature of obiter and further those observations do not clearly state that the extent of land held by the landlord would have any application in a proceeding u/s 48E. Even if there is any such suggestion in that decision, it is plainly contrary to the provisions contained in Section 48C and 48E of the Act and therefore it does not constitute good law and is of no avail to Respondent No. 3 in this case.

For the reasons stated above, we are of the opinion that this appeal must succeed. We, accordingly, set aside the judgment and order dated December 5, 1994 dismissing C.W.J.C. No. 843/1983. We allow the writ petition and quash the order dated 14.8.1982 passed by the Deputy Collector Land Reforms, Sasaram in Bataidari Case No. 1/1982-33. The matter is remitted to him with a direction to constitute a Board in terms of Sub-section (3) of Section 48E and to refer the dispute to it.

In the result, this appeal is allowed. No order as to costs.