Prem Shankar Dubey and Others vs The State of Bihar and Others

Chandramauli Kr. Prasad and Jayanandan Singh, JJ.—Writ-petitioner-appellants aggrieved by the Order dated 03.9.2003 passed by a learned Single Judge in CWJC No. 6883 of 2003 has preferred this appeal under Clause-X of the Letters Patent.

Short facts giving rise to the present appeal are that in the year 1977 under-raiyat i.e. Bataidar filed application claiming Bataidari right u/s 48E of the Bihar Tenancy Act (hereinafter referred to as ''the Act''). The Collector under the Act by order dated 27.5.1999 rejected his claim. Aggrieved by the same the under-raiyat filed CWJC No. 5929 of 1999 before this Court. A learned Single Judge by order dated 15.2.2000 set aside the aforesaid order. Aggrieved by the same the land-holder preferred LPA No. 365 of 2000 before a Division Bench, which affirmed the order of the learned Single Judge but directed the Collector under the Act to first decide as to whether bonafide dispute exists between the parties and in case he finds so, proceed further as provided u/s 48E of the Act. The relevant portion of the aforesaid judgment reads as follows:

As stated above, the order has to be set aside on the grounds given by the learned Single Judge but after setting aside the order, the matter has to be remitted again to decide as to whether bonafide dispute exists between the parties or not. The question regarding nature of agricultural land is not the only question to be decided at this stage. Accordingly, the Collector under the Act is directed to decide as to whether the dispute is bonafide or not. Taking into consideration special facts of this case, we also direct him to hear both the parties and to take a decision with regard to the said matter within two months from the date of receipt/production of a copy of this order. In case, he comes to the conclusion that bonafide dispute exists between the parties, then he will proceed further as provided u/s 48E of the Act, otherwise, he will dispose of the proceeding at the stage of its initiation itself.

In the light of the order of this Court the Collector under the Act examined the matter and by order dated 14.3.2002 came to the conclusion that bonafide dispute exists and accordingly referred the matter to Board and nominated the Circle Officer, Buxar as Chairman of the Board. It further directed the Board to make efforts for settlement of the dispute and thereafter remit the matter back to it. The land-holder aggrieved by the aforesaid order filed CWJC No. 4271 of 2002 before this Court and by order dated 04.4.2002 said writ application was dismissed. Thereafter, the land-holder assailed the aforesaid order in LPA 581 of 2002, which was dismissed by order dated 09.5.2002, the judgment reported in Deo Kumar Dubey Vs. The State of Bihar and Others, .

It seems that the Board failed to record its finding and ultimately the Collector under the Act in exercise of its power u/s 48E(10) of the Act withdrew the proceeding from the Board to decide the dispute himself. It seems that after withdrawal of the proceeding by the Collector, the record was placed before him for consideration on 27.3.2003 and on that date he directed for issuance of notice to both the parties and adjourned the case to 15.4.2003. On the next date fixed the case was adjourned to 05.5.2003 and thereafter to 16.5.2003. On 16.5.2003 the under-raiyat filed application to pass order u/s 48E(10) of the Act. An application was filed on behalf of the land-holder that their Panches had not appeared on the ground that news of transfer of the Collector had been published in the newspaper. They also pointed out that the Collector under the Act having been transferred, it shall not be in the interest of justice that he hears the matter and passes order. The Collector adjourned the case to 17.5.2003 and on the said date passed the final order upholding the claim of the under-raiyat.

The land-holder assailed the order upholding the claim of the under-raiyat by filing the writ application, which has been dismissed by order impugned in the present appeal.

Mr. Singh, appearing on behalf of the writ-petitioner-appellants raises a very short point. He submits that after the Collector exercised its power u/s 48E(10) of the Act, he was required to decide the dispute according to the provisions of Section 48E of the Act. He submits that it was obligatory on the part of the Collector to make endeavour to bring about amicable settlement of the dispute u/s 48E(6) of the Act but he having failed to do, order upholding the Bataidari right has been vitiated on this count alone.

Mr. Ganesh Pd. Singh, Senior Advocate, however appearing on behalf of the under-raiyat submits that the land-holder did not appear, the Collector under the Act had to assume that efforts of settlement had failed and only thereafter he had proceeded with the case. He has also drawn our attention to the final order passed by him in which he had recorded that efforts for settlement was made on the previous date. In answer thereto learned Counsel for the appellants submits that the same is clearly an error of record.

We have perused the entire orders of the Collector and we are of the opinion that it do not show that any effort for settlement was made and the same had failed. In view of our aforesaid finding, we have to consider as to whether failure to make efforts for settlement of the dispute shall vitiate the ultimate order.

From a plain reading of Section 48(10) of the Act, it is evident that the Collector may withdraw the proceeding from the Board and decide the dispute himself according to the procedure prescribed u/s 48E of the Act. Section 48E(6) of the Act, requires the Board to make endeavour to bring about an amicable settlement of the dispute between the parties. If the Board fails to bring about amicable settlement as has happened in the present case, that effort has to be made by the Collector himself when he recalled the proceeding u/s 48E(10) of the Act. The view which we have taken finds support from the judgment of a Division Bench in the case of Rasik Lal Singh and Others Vs. State of Bihar and Others, , wherein it has been held as follows:

The Deputy Collector Land Reforms decided the dispute between an under-raiyat and the landlords u/s 48-E(10) of the Act for the reasons that the Board failed to record its findings and to transmit record to the Collector under Sub-section (7) of Section 48-E of the Act. In this circumstance the Collector decided the dispute u/s 48-E(10) of the Act. Section 48-E(10) of the Act provides that in such circumstance the Collector may withdraw the proceeding from the Board and decide the dispute himself according to the provisions of this section. By virtue of Sub-section (10) of Section 48-E of the Act, the Collector shall have to decide the dispute himself according to the provisions of Section 48-E of the Act. Sub-section (6) of Section 48-E of the Act requires that the Board shall make endeavours to bring about an amicable settlement of the dispute between the parties. If the Board fails to bring about amicable settlement between the parties, then it shall record evidence under Sub-section (7) of Section 48-E of the Act. Under Sub-section 10 of Section 48-E of the Act, the Collector shall follow all the provisions of this section. If it is so, the Collector is required to make endeavours to bring about an amicable settlement of the dispute between the parties. If the Collector fails to bring about an amicable settlement between the parties, then he will be entitled to record evidence under Sub-section (7) of Section 48-E of the Act.

(underlining ours)

The ratio of the decision of Rasik Lal Singh (supra) has been approved later by a Division Bench in the case of Kamleshwari Mandal and Ors. v. Balgovind Thakur and Ors. 1984 PLJR 419 and in this it has been held as follows:

As regards the second contention, I have re-examined the reasons given in the decision referred to earlier for taking the view that a Collector acting under Sub-section (10) of Section 48E was bound to follow the same procedure which was applicable for the Board. Sub-section (10) requires the Collector to "decide the dispute himself according to the provisions of this section." The emphasis that he has to decide the dispute according to the provisions of the section cannot be given any other meaning than what has been given in the case of Rasik Lal Singh (supra). The Collector after withdrawal has to take up the proceeding de novo and the records of the Bataidari Board are of no use to him. If the contention of Mr. Roy is to be accepted then the Collector would also be bound by the evidence recorded by the Board or, for that matter, could refer to it, but obviously he cannot do that. In my opinion, the proceedings of the Bataidari Board after withdrawal become non est for all practical purposes and the Collector has to start with a clean slate.

In the present case when the Collector under the Act exercised its power u/s 48E(10) of the Act and recalled the record from the Board, he did not make effort for amicable settlement of the dispute. This itself vitiates the order passed by the Collector upholding the Bataidari right of the under-raiyat. It is unfortunate that aforesaid question was not raised before the learned Single Judge.

As the matter is pending since long, we are setting aside the order of the Collector on account of his failure to make efforts for amicable settlement. The matter shall now to go back to him for decision in accordance with law.

As the matter is pending since long, we deem it expedient that the Collector makes endeavour to dispose off the matter within six months from the date of receipt/production of a copy of this order.

Counsel representing the appellants as also respondent state that they shall appear before the Collector within three weeks.

In the result, the appeal is allowed, the order of the learned Single Judge passed in CWJC No. 6883 of 2003 is set aside as also of the Collector dated 17.5.2003 passed in Bataidari Case No. 5/77-78 with the observations aforesaid but without any order as to costs.