Ram Ashray Yadav and Others vs The State of Bihar and Others

Shiva Kirti Singh, J.—Heard the parties. These five writ petitions relate to lands of the same family of the land-holders-Respondents and questions for determination in all cases are same. In that view of the matter, with the consent of the parties, all these five writ petitions have been heard together at the stage of admission and are being disposed of by this common order.

Petitioners claim to be under raiyats (Bataidars) for various lands belonging to the private Respondents. In July, 1992 they filed petitions u/s 48-E of the Bihar Tenancy Act (hereinafter referred to as "the Act") before the concerned Sub-divisional Officer, Collector under the Act. Earlier a dispute arose whether the Sub-divisional Officer was justified in initiating the proceeding or not. After that dispute was settled by an order of this Court in a batch of writ applications disposed of in March, 1993, the proceeding u/s 48-E(3) of the Act progressed but attempt for amicable settlement of dispute at the instance of the Board constituted u/s 48-E(3) of the Act failed. The Board thereafter made an enquiry into the dispute and submitted report through Circle Officer, its Chairman for rejecting Petitioners'' claims. One Satya Narain Singh, panch of Petitioners filed a dissenting note. The Collector under the Act did not accept the reports for passing final orders and chose to proceed to hold an enquiry under Sub-section (8) of Section 48-E of the Act. As a result of the enquiry he came to a finding that the claim of the Petitioners was not acceptable and hence by his order dated 13.7.95 rejected the claims in all the 53 cases. The appeals were also dismissed by Collector, Jehanabad vide order dated 5.11.1999. The original order and the Appellate order which are impugned in these writ petitions have been annexed as annexure 8 and 9 respectively in C.W.J.C. No. 436 of 2000.

On behalf of Petitioners mainly four points were raised to challenge the impugned orders contained in annexures 8 and 9 as noticed above and it was prayed that the impugned orders be set aside and the matter be remitted back for fresh decision. The four points are: (1) Once Collector under the Act dis-agreed with recommendation made by the Board then as per Sub-section (8) of Section 48-E of the Act he had to make enquiry all by himself and could not have asked for and considered a report from a sub-ordinate Executive Magistrate; (2) After rejecting the recommendations of the Board, at the time of passing of final order the Collector under the Act could not have looked into such report of the Board; (3) In an enquiry under Sub-section (8) of Section 48-E of the Act, the Collector can pass only three kinds of orders as enumerated in that Sub-section and there is no scope for passing a final 1 order rejecting the claim of under raiyats and (4) the Appellate authority erred in law in referring to provisions of Section 48-C of the Act and taking help of the same in rejecting the claims u/s 48-E of the Act.

Learned Counsel for the Petitioners has placed reliance upon the phraseology used in Sub-section (8) of Section 48-E of the Act and observations in a Full Bench judgment of this Court in the case of Dhanji Singh Vs. State of Bihar and Others, to submit that in cases of dis-agreement with the report of finding of the Board, the Collector shall make such enquiry, if any, as he thinks necessary. On the basis of such phraseology it has been submitted that the Collector could not have asked an Executive Magistrate to make any kind of verification and report. According to learned Counsel for the Petitioners such an action by the Collector would amount to abdication of Statutory function of holding enquiry conferred only upon the Collector under the Act. On the other hand, learned Counsel for the private Respondents submitted that final adjudication and final order should be by the statutory authority, the Collector but the enquiry contemplated by the statute is not a judicial enquiry rather only an administrative or quasi judicial enquiry in which it is permissible for the statutory authority to depute a responsible and competent officer to enquire and report. In support of this proposition he placed reliance upon a Division Bench judgment of High Court of M.P. in the case of Indore Textiles Ltd. and Another Vs. Union of India (UOI) and Another, . In paragraph-10 of the said judgment the Division Bench has relied upon a judgment of the Supreme Court in the case of Pradyat Kumar Bose Vs. The Hon''ble The Chief Justice of Calcutta High Court, in support of the proposition that in case of an administrative power which has to be exercised in a quasi judicial manner it is permissible for the statutory functionary to depute a responsible and competent officer to enquire and report only the ultimate responsibility for exercise of the power cannot be delegated.

Considering the entire facts and circumstances as well as the nature and scope of enquiry contemplated under Sub-section (8) of Section 48-E of the Act, this Court is of the view that the Collector under the Act has ample power to decide what kind of enquiry, if any, is necessary. The word "such" before the word enquiry clearly indicates the wide discretion be-stowed upon the Collector. So long as a responsible official is asked to make verifications and report, the exercise of power by the Collector in deputing certain aspects of enquiry to another cannot be faulted with. In the present case the report was asked for from an Executive Magistrate and not from any third or fourth grade employee and hence this Court finds no illegality in the impugned actions of the Collector.

So far as the second point is concerned, the submission of learned Counsel for the Petitioners suffer from an apparent misconception that in case of disagreement with the report or the findings of the Board, the report stands entirely rejected as if it has been expunged from the records. Such is not the scheme u/s 48-E of the Act. Even where the Collector disagrees with the report of the Board and decides to make an enquiry under Sub-section (8) of Section 48E of the Act, the report of the Board remains as a part of record before the Collector and there is nothing in the statutory provisions to disentitle the Collector from looking into the report. Even his ultimate finding after enquiry may be one agreeing with the report of the Board to which he might have disagreed at an earlier stage. This proposition finds support from a Division Bench judgment of this Court in 1979 BLJR 220 (Mahant Ram Narain Gir v. State of Bihar). In paragraph-5 of the said judgment it was held that enquiry under Sub-section (8) of Section 48E of the Act may be initiated by the Collector in case he is prima facie not satisfied with the findings. After making such enquiry as he thinks necessary, the Collector may agree even after enquiry with the finding of the Board or he may finally chose to disagree with that findings. Hence this Court finds no merit in the second point urged on behalf of the Petitioners.

The third point has no substance at all and requires no consideration because it is clear from the, scheme of Section 48-E of the Act that after enquiry under Sub-section (8) of the Act the Collector can take either of the views and there is no merit in the contention that after such an enquiry, the final order can be only in favour of the persons claiming to be under-raiyais.

So far as the fourth and the last point urged, on behalf of the Petitioners is concerned, no doubt Section 48-C of the Act is not at all relevant for deciding a dispute u/s 48-E of the B.T. Act and to this extent the appellate order of the Collector, Jehanabad suffers from illegality. However, the moot question is whether on account of such error in a part of the appellate order, this Court must strike down the entire order. A perusal of the appellate order as well as the original order shows that the claim of Petitioners that they, are under raiyats was not accepted. for various reasons such as their failure, to put-forward such claims during revisional survey operations in 1967-68 or before the Consolidation Authorities failure of the claimants to give even the correct boundary of lands claimed by the before the two members of Board and (sic) the fact that although the under (sic) claimed to be in cultivating posse (sic) since more than 21 to 35 years but (sic) claimants were found to be aged (sic) about 30 or 32 years. It has rightly been submitted on behalf of the private Respondents that in such a situation the error in taking help of Section 48-C of the Act will, not vitiate the entire order. In support of such submission reliance was placed upon, judgment of the Supreme Court in the case of The State of Maharashtra and Another Vs. B.K. Takkamore and Others, In the said judgment while considering a similar issue with regard to order passed by Domestic Tribunal, the Supreme Court aid down the proposition that where an order is based on several grounds, some of which are irrelevant then if there is nothing to show that the authority would have passed the same order on the basis relevant and existing ground, that order cannot be sustained. However, where the Court is satisfied that the authority could have passed the order to the same effect on the basis of other relevant and existing grounds and the exclusion of irrelevant or non-existing ground could not have affected the ultimate opinion or decision of the authority, order has to be sustained. Applying this test to the facts of the case it is found that even after exclusion of consideration on the basis of Section 48-C of the Act, the ultimate opinion or decision of the authority would have remained the same. Hence the submissions relating to the 4th point also do not succeed to war rant quashing of the impugned orders.

Thus, on consideration of all the points and in view of discussions and findings given above, this Court finds no merit in these writ petitions and the same are accordingly, dismissed.