Patna High Court
Jai Ram Das Bhatia And Anr. vs State Of Bihar And Ors. on 21 January, 1976
Equivalent citations: AIR1977PAT315, AIR 1977 PATNA 315
JUDGMENT S.K. Jha, J.
1. In these two applications under Articles 226 and 227 of the Constitution of India is involved an identical question of law. The point to be decided is as to the true scope and purport of the provisions of Section 48-F of the Bihar Tenancy Act (hereinafter to be referred to as 'the Act'). Both these applications are directed against an order passed by the Additional Collector in the purported exercise of his powers under Section 48-F of the Act. I shall therefore, first deal with the facts of C. W. J. C. No. 320 of 1974 and after having decided the question of law involved shall merely refer to the distinct facts of C, W. J. C. No. 326 of 1974.
C. W. J. C. No. 320 of 1974 :
2. The petitioner claims to be owning 40 acres of land situate in the hilly tracts at the foot of Rajgir hills evidently unirrigated. The petitioner has three sons, who in accordance with Explanation IV of Section 48-C of the Act are to be treated as separate. Respondents 3 to 9 claiming to be under-raiyats under the petitioner landlord filed applications before the Deputy Collector Incharge Land Reforms (respondent No. 2) for initiation of proceedings under Section 48-E of the Act. They complained that they were being threatened with unlawful ejectment from their batai lands by the petitioner landlord. Similar petitions on the same grounds had also been filed simultaneously by a number of other persons claiming to be under-raiyats. Such other persons, however, subsequently withdrew their claims asserting in their petitions of withdrawal that they had been induced and persuaded to lay claims at the behest of a particular political party We are, however, not concerned with the cases of such other claimants. For the purpose of disposal of this application it is not necessary to give the particulars of the area of the land claimed by each of the contesting respondents. A proceeding was duly initiated under Section 48-E of the Act and the petitioner was asked to show cause. The petitioner in his show cause petition asserted that the contesting respondents have or had no concern whatsoever with the disputed lands as bataidars. Admittedly a Board of Settlement was constituted under the provisions of Section 48-E (3). A Chairman of the Board was duly appointed. The Board tried to bring about an amicable settlement of the dispute as enjoined under Sub-section (7) of Section 48-E. The attempt to bring about amicable settlement proved abortive. It then made enquiries into the respective claims of the parties. Evidence was adduced. Findings were recorded by the Board in favour of the petitioner. The Board found and recommended that the contesting respondents could not substantiate their claim of under-rayati interest. The records of the case were duly transmitted to the Deputy Collector Incharge Land Reforms (respondent No, 2). It appears, as is contended by learned counsel for the respondents, that respondent No. 2 on receipt of the findings and record from the Board of Settlement issued notices to the petitioner as well as to the contesting respondents. After hearing them, respondent No. 2 exercising the powers of the Collector under Section 48-E (7) disposed of the proceedings in accordance with the terms of the findings of the Board. The report of the Board has been marked Annexure '1' to the application. A copy of the order of respondent No. 2 dated 29-11-1972 disposing of the proceedings in accordance with the terms of the findings of the Board has been marked Annexure '2' to the application. From Annexure 2 it also appears that apart from the findings and recommendations of the Board certain other materials were also taken into consideration for the purpose of reinforcing the conclusion arrived at by the Board. It is needless for me to mention such intrinsic materials for they are not necessary for the disposal of the point at issue. Thereafter the contesting respondents filed an appeal before the Additional Collector purportedly under Section 48-F of the Act and the learned Additional Collector of Nalanda (respondent No. 1) by his appellate order dated 5-12-73 (Annexure 3) has set aside the order passed by the Deputy Collector Incharge Land Reforms as also the findings recorded by the Board of Settlement. It is this appellate order of the Additional Collector, the validity of which has been attacked in this writ application,
3. Learned counsel for the parties did not canvass the factual aspects of the matter which may have had any bearing upon the point under consideration. The petitioner attacks the appellate order of the Additional Collector merely on the ground of jurisdiction. It wag contended on behalf of the petitioner that the appeal under Section 48-F of the Act was wholly misconceived and not maintainable. The Additional Collector had no jurisdiction to entertain an appeal against the order of the Deputy Collector Incharge Land Reforms, acting as the Collector, disposing of the proceedings in accordance with the terms of the findings of the Board of Settlement. The only question, therefore, that arises for consideration is as to what is the true construction of the provisions of Section 48-F.
4. Section 48-F reads as follows:--
"(1) An appeal shall lie from an order referred to is Sub-section (8) of Section 47-E:--
(i) If such order is passed by an officer other than the Collector of a district, to the Collector of the District or to any officer specially empowered by the State Government by notification to hear such appeals, and
(ii) If such order is passed by the Collector of a district to the prescribed authority.
(2) The Collector of the district may, at any time, transfer any appeal filed before him to any officer specially empowered under Clause (i) of Sub-section (1) to hear such appeals, or withdraw any appeal pending before any officer so empowered, and either hear such appeal himself or transfer it for disposal to any other officer as empowered.
(3) Appeals under this section shall be heard and disposed of in accordance with the prescribed procedure.
(4) An order duly made under Section 48-E or an appeal under this section shall be final and shall not be called in question in any Civil Court.
(5) If a suit is instituted challenging an order made under Section 48-E or on appeal under this section, the civil court, shall have no power, during the pendency of the suit, to stay the enforcement of such order.'' It is obvious from sub-sec, (1) of Section 48-F that an appeal can lie from an order passed under Sub-section (8) of Section 48-E only. Let us then look to the provisions of Section 48-E (8). But before discussing the scope of the provisions of Sub-section (8) of Section 48-E, it is worthwhile to notice the provisions of Sub-section (7) also. Sec. 48-E (7) reads thus:
"Where a Board does not succeed in bringing about an amicable settlement of the dispute, it shall make enquiry into the same receive such evidence as it considers necessary, record its findings on the disputes and transmit the entire record of the proceeding forthwith to the Collector who may dispose of the proceeding in accordance with the terms of the findings:
Provided that failure on the part of any member of the Board to sign the finding shall not affect the validity of that finding:
Provided further that if any member does not want to sign the findings of the Board he will submit his disagreement on the findings in writing failing which the Chairman will submit his notes on the subject.'' From a clear reading of the aforesaid provisions what emerges is this. If the Beard, which is constituted, as already stated, under Sub-section (3) of Section 48-E, is not successful in its attempt to bring about an amicable settlement of the dispute, it is enjoined to make an enquiry into the dispute. In course of such enquiry it is to receive such evidence as it considers necessary. Thereafter it has to record its findings on the disputes and transmit the entire record of the proceeding to the Collector without any unreasonable delay. The Collector may then dispose of the proceeding in accordance with the terms of the findings of the Board, The principle of natural justice, however, demands that even before the Collector chooses to dispose of the proceeding in agreement with the findings of the Board, the parties should be heard by him. The principle of audi alteram partem has to be followed not as a statutory provision but ex debito justitiae.
5. Thereafter comes Sub-section (8) of Section 48-E, which reads as under:--
"In case of disagreement with the report or the findings of the Board, the Collector shall, after recording his reasons for such' disagreement and after giving the parties concerned a reasonable opportunity of being heard, make such enquiry, if any, as he thinks necessary and on being satisfied that-
(i) the person threatened with ejectment is an under-raiyat, the Collector shall declare the threatened ejectment illegal and direct that the landlord shall not interfere with the possession of the under-raiyat in his tenancy or any portion thereof;
(ii) the land under dispute is in the tenancy of the under-raiyat, the Collector shall declare possession of the under-raiyat and order the crop or produce, or the sale proceeds thereof, as the case may be, to be divided between the under-raiyat and his landlord in accordance with the provisions of Sections 69 to 71 of the Act;
(iii) the person alleged to have been ejected was as under-raiyat of the disputed land on the date of ejectment and was ejected within twelve years before the commencement of proceeding under this section in contravention of Section 89, the Collector shall order that the landlord, or, where any other person, is in possession of the land comprised in the under raiyats' tenancy or portion thereof under any claim derived from the landlord, such person shall restore the under-raiyat to possession of the tenancy or portion from which he was so ejected,"
As already indicated above, if the Collector disposes of the proceeding arising from the dispute in agreement with the terms of the Board's findings, so much so good. The matter comes to an end there. But in view of the provisions of Sub-section (8) quoted above, it will be noticed that if the Collector is in disagreement with the report or the findings of the Board then after recording his reasons for such disagreement and after giving all the parties concerned a reasonable opportunity of being heard he must make an enquiry and such an enquiry, if any, may be made as he thinks necessary. After hearing the parties and after making such requisite enquiry, the Collector may pass any one or all of the orders, the nature of which is indicated in Clauses (i), (ii) and (iii) of Sub-section (8). If in disagreement with the report of the Board the Collector is satisfied that the person threatened with ejectment is an under-raiyat, the Collector shall declare the threatened ejectment illegal. He shall further direct that the landlord shall not interfere with the possession of the under-raiyat. If the Collector finds that the land under dispute is in the tenancy of the under-raiyat, the Collector shall declare possession of such under-raiyat and make consequential orders with regard to the crop or produce, or the sale-proceeds thereof, as the case may be, to be divided between the under-raiyat and his landlord in accordance with the provisions engrafted in Sections 69 to 71 of the Act. If the Collector finds that the person alleged to have been ejected was an under-raiyat of the disputed land on the date of ejectment and was ejected within twelve years before the commencement of proceeding under Section 48-E in contravention of Section 89, he shall order that the landlord or any other person in possession of the land comprised in the under-raiyats' tenancy under any claim derived from the landlord such person shall be directed to restore to the under raiyat the possession of the tenancy lands. Such type of orders can be passed by the Collector only in cases of disagreement with the report or the findings of the Board under the provisions of Sub-section (8). Because, as already stated earlier, if the Collector is in agreement with the findings and the recommendations of the Board, he has been empowered to proceed in accordance with the terms of such findings under Sub-section (7). The cases where the Collector chooses to agree with the recommendation and findings of the Board are served by the provisions of Sub-section (7) of Section 48-E. On the contrary, where the Collector has reasons to disagree with the findings and recommendation of the Board, the procedure as prescribed in Sub-section (8) of Section 48-E has to be followed and the order of the nature as explained as may be passed under the provisions of either Clause (i), (ii) or (iii) or all of them, as the exigencies of a case may require.
6. This being the respective scope of the provisions of Sub-sections (7) and (8) of Section 48-E, it will be noticed from the language of Section 48-F (1) quoted above, that an appeal can lie under Section 48-F only from an order referred to in Sub-section (8) of Section 48-E. In other words, where the Collector while disagreeing with the findings and recommendation of the Board embarks upon an enquiry and after hearing the parties passes any appropriate order under the provisions of Section 48-E (8) (i) (ii) or (iii), can the order be the subject-matter of an appeal under Section 48-F (1). Any order passed in terms of the provisions of Sub-section (7) of Section 48-E has not been made the subject-matter of appeal under Section 48-F. There is a good reason and/or salutary purpose behind this legislative intent. In the case of any disagreement, while following the procedure laid down in Sub-section (8) of Section 48-E, all that the Collector can do is to pass an order favourable in one way or the other to the under-raiyat. No order in any circumstance can be passed under the provisions of Sub-section (8) of Section 48-E in favour of the landlord. That is why a further safeguard has been afforded to the landlord to pursue an appeal where the order is passed against him under the provisions of Sub-section (8) of Section 48-E otherwise the landlord would be left without any remedy at law. So far as the under-raiyat is concerned, there has also been afforded a safety valve against any inroad on any of his rights. If the Board makes a recommendation in his favour and the Collector disposes of the proceeding in accordance with the findings of the Board, the under-raiyat has everything to gain. If the Board records its findings against the under-raiyat and in favour of the landlord, there is yet another safety valve. The Collector may choose to disagree with the findings and pass an order of one or the other nature as contemplated in Section 48-E (8). Either in principle or on the express language of Section 48-F. I have no hesitation in coming to the conclusion that an appeal under Section 48-F of the Act can be maintainable only in cases of disagreement between the findings recorded by the Board and the Collector and where an appropriate order is passed by the Collector in disagreement with the Board in terms of one or all the clauses of Sub-section (ii) of Section 48-E.
7. It is a well-settled principle of law that an appeal does not exist in the nature of things. A right of appeal from any decision of any tribunal must be given by express enactment, It is, therefore, incumbent upon any party seeking to rely upon any provision of appeal to show that there is an express statutory provision to that effect. Without multiplying the decisions, I may make just a passing reference in this connection to the cases of Sandback Charity Trustees v. North Staffordshire Ry. Co. ((1877) 3 QBD 1) and Rangoon Betatoung Co. Ltd. v. Collector, Rangoon ((1912) 39 Ind App 197 at p. 200) (PC).
8. For the aforesaid reasons I am constrained to hold that the appeal before the Additional Collector was not maintainable. This petition is, therefore, bound to succeed on this jurisdictional ground alone,
9. In the result, this application is allowed and the order passed by the Additional Collector in the purported exercise of his powers under Section 48-F, as contained in Annexure '3' to the writ application, is quashed. But in the circumstances of the case there will be no order as to costs.
C. W. J. C. No. 326 of 1974:
10. Again it is not necessary to go into any detailed statement of facts for the point, as stated already at the outset, is identical. As in C. W. J. C. No. 320 of 1974, a dispute having been raised by respondents 3 and 4 claiming to be under-raiyats in respect of certain lands belonging to the petitioner, a Board was duly constituted after initiation of the proceeding under Section 48-E of the Act. The Board after complying with all the due formalities as envisaged in Section 48-E recorded its findings and sent its report to the Deputy Collector Incharge Land Reforms (respondent No. 2), who was exercising the powers of the Collector. The report with the findings of the Board has been marked Annexure '1'. Respondent No. 2 on receipt of the findings and the records transmitted to him by the Board of Settlement agreed after hearing the parties with the findings recorded by the Board and proceeded to dispose of the dispute in accordance with such findings. A copy of the order passed by respondent No. 2 on 29-11-72 has been marked Annexure '2'. There was then an appeal by respondents Nos. 3 and 4 and the Additional Collector in the purported exercise of his power under Section 48-F reversed the order passed by the Deputy Collector incharge Land Reforms and disagreeing with the findings as recorded by the Board of Settlement passed an order favourable to respondents 3 and 4 on the 5th of December, 1973 (Annexure 3). The validity of Annexure 3 has been attacked on the same ground as in the previous case and for the same reasons. I hold that the order dated 5-12-1973 passed by respondent No. 1, the Additional Collector, as incorporated in Annexure 3, is without jurisdiction and It must be quashed,
11. In the result, this application is allowed and the order passed by the Additional Collector as contained in Annexure 3 is quashed. In the circumstances, however, there shall be no order as to costs.
S.N.P. Singh, C.J.
12. I agree.