Patna High Court
Md. Ozair Ghaffari And Anr. vs State Of Bihar And Ors. on 17 February, 2005
Equivalent citations: 2005(1)BLJR727
Author: Mridula Mishra
Bench: Mridula Mishra
JUDGMENT Mridula Mishra, J.
1. Since in both the writ applications petitioners are same and respondent No. 4 in both the writ applications are brothers who have filed application for declaration of their bataidari right under Section 48-E of the Bihar Tenancy Act, by a similar order passed in Bataidari Appeal No. 64 of 1994 and Bataidari Appeal No. 65 of 1994, the Collector, Kishanganj, has allowed the appeal with similar finding, as such, both the writ applications are being heard the disposed of by this common order.
2. The land in dispute in C.W.J.C. No. 14860 of 2001 is appertaining to khata No. 37, plot Nos. 477, 469 and 465 measuring 4.84 acres of village Dubrikhas and the land in dispute in C.W.J.C. No. 14955 of 2001 is the land of khata No. 37, plot Nos. 69 and 465 measuring 4.83 acres of village Dubrikhas. Respondent No. 4 in both the writ applications, who are brothers, filed an application on 20.2.1992 before the Dy Collector Land Reforms, Kishanganj, under Section 48-E of the Bihar Tenancy Act for their bataidari right over the land mentioned above. Bataidari Case No. 40 of 1991-92 and 41 of 1991-92 were registered. A Bataidari Board was constituted for reconciliation between the petitioners and respondents. The Bataidari Board submitted a report dated 4.3.1994 stating that efforts for reconciliation were made but it failed and gave a finding that the claim of the applicants were wrong and they were not bataidars of the land as the age of the applicants were assessed near about 24/25 years and in their applications they claimed to be bataidars of the land for more than 21 years. It was also found that they are residing at seven kilometers away from the land and it was not possible for them to cultivate the land as bataidars from such a distance. Considering the report of the Conciliation Board, the Dy. Collector Land Reforms after hearing the parties, by his order dated 15.4.1994 rejected the application filed by respondent No. 4 in both the cases. Against this order passed by the Dy. Collector Land Reforms, respondent No. 4 in both the writ applications preferred appeal case No. 64 of 1994 and Appeal Case No. 65 of 1994 before the Collector, Kishanganj. The appellate authority without looking into the merit of the case and without considering the report of the Conciliation Board, Conciliation Board allowed the appeals relying on the order passed by the Consolidation Officer, Kishanganj, wherein applicant respondent No. 4 in both the writ applicants were recorded as bataidars with respect to the land in question.
3. Learned counsel for the petitioners submits that as relying on the order passed in a consolidation proceeding the appellate authority has allowed the appeals preferred by respondent No. 4 in both the writ applications, the impugned orders are without jurisdiction. Section 4 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act reads :
"No suit or other legal proceeding in respect of any land in such area shall be entertained in any Court, and in calculating period of limitation applicable to such suits and proceedings such period shall not be counted :
Provided that nothing in this clause shall apply to any proceeding under Section 48(E) of the Tenancy Act 1885 (Act 8, 1885) and to the proceedings relating to recording the titles of Bataidars;"
Any order passed by the Consolidation Court has no bearing on any proceeding under Section 48(E) of the Bihar Tenancy Act, specially when in the proceedings before the Consolidation Authority the petitioners were not impleaded as party and no notice was given to them for defending their respective cases.
4. No one appears on behalf of respondent No. 4 though notice was properly served on respondent No. 4 in both the writ applications.
5. On consideration of the submissions made by the petitioners as well as documents annexed with the writ applications, I find that the orders passed in Bataidari Appeal No. 64 of 1994 and Bataidari Appeal No. 65 of 1994 passed by the Collector without considering the merit of the case and without looking into the report submitted by the Conciliation Board is illegal. The Collector has passed the order simply relying on an ex parte order passed by the Consolidation Court which has no bearing, on any proceeding under Section 48(E) of the Bihar Tenancy Act, particularly when the petitioners were not made parties in the proceeding and no notice was issued. Accordingly, both the writ applications are allowed. The order dated 10.7.2001 passed by the Collector, Kishanganj, in Bataidari Appeal Nos. 64 of 1994 and 65 of 1994 are quashed.
6. During the pendency of these writ applications a contempt case bearing M.J.C. No. 324 of 2002 has been filed by the petitioners which is not being pressed. Accordingly, this M.J.C. application is dropped.