Patna High Court
Gopali Mandal vs The State Of Bihar And Ors. on 4 May, 2005
Equivalent citations: 2005(2)BLJR1497
JUDGMENT
1. Having heard the learned counsel for the parties, we allow the limitation petition. Delay in filing the appeal is condoned.
2. Heard learned counsel for the appellant and the respondents.
3. The appellant is the bataidar. He filed an application, being an under raiyat, under Section 48E of the Bihar Tenancy Act, 1885 (hereinafter referred to as the Act) alleging ejectment at the instance of the landlord. The proceeding was sent to the Board constituted under Section 48 E of the Act. However, the Collector withdrew the proceeding from the Board under Section 48E (10) of the Act, and allowed the parties to lead evidence and after hearing the parties allowed the claim of the appellant. The landlord filed an appeal under Section 48F of the Act, which has been disposed of by the Additional Collector.
4. Learned counsel for the appellant has raised two points which were raised by him before the learned Single Judge. The first point is that no appeal is maintainable against an order passed under Section 48E (10) of the Act and as such the appeal filed before the appellate authority was without jurisdiction. Secondly, he submitted that the appeal lay before the Collector of the district. In the instant case the appeal has been disposed of by the Additional Collector and as such even after a preliminary objection raised by him, the appeal has not been disposed of by the competent authority.
5. The learned Single Judge negatived both the points. So far as the first point is concerned, under the scheme of Section 48E of the Act, once a proceeding is initiated that is sent before the Board constituted under the terms of the provisions of the Act and then the Board has to make endeavours to bring about an amicable settlement. However, in case of failure to arrive at settlement, the Board shall take evidence and send the report to the Collector of the District. After the report is submitted in case of disagreement, the Collector will again give an opportunity to the party and decide the matter within the provisions contained in sub-section (8) of Section 48E of the Act. However, if the Board fails to record its finding, or transmit the record as required under sub-section (7) within a period of six months, the Collector may withdraw the proceeding from the Board and decide the dispute himself according to the provisions of this section.
6. Sub-sections (7), (8) and (10) of Section 48E of the Act reads thus : "48-E. Prevention of threatened ejectment of under raiyat and restoration of possession of under raiyat unlawfully ejected.(7) 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 dispute 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.
(8) 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 in as 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 an 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 raiyat 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.
(10) If the Board fails to record its finding or transmit the records as required under sub-section (7) within a period of six months which shall be reckoned from the date of its appointment under sub-section (3) the Collector may withdraw the proceeding from the Board and decide the dispute himself according to the provisions of this section."
7. Under Section 48F of the Act, remedy of appeal is provided and according to the said provision, the appeal shall lie from an order referred to only in sub-section (7) and sub-section (8) of Section 48E, which have been quoted above.
8. The point advanced on behalf of the appellant was that as the case had been withdrawn under sub-section (10) of Section 48E of the Act, and thereafter it has been disposed of by the Collector under the Act, the appeal is not maintainable in terms of the aforesaid provisions.
9. We find ourselves in complete disagreement with the submission advanced on behalf of the appellant for the simple reason that in scheme of the Act, only two authorities are mentioned to decide the matter, that is, the Board and in case of disagreement the Collector under the Act. The Board is empowered to take evidence and decide the matter and even after report is submitted by the Board and the Collector disagrees, he can again take evidence and give an opportunity to the parties and then decide the matter. However, if the matter is not decided by the Board as stated under sub-section (10) of Section 48E of the Act, then the Collector has been empowered to withdraw the case and thereafter decide the matter under the provisions of Section 48E of the Act. After withdrawing the case, the Collector has to decide the matter after giving opportunity to be heard to the parties under the aforesaid Act and final order is passed under sub-section (8) of Section 48E of the Act, by the Collector as the Board has not submitted the report and the matter is disposed of by the Collector under sub-section (8) of Section 48E of the Act.
10. This question arose for consideration before this Court earlier in the case of Ram Narain Singh and Anr. v. State of Bihar and Ors. , 1973 BUR 662, which was decided by the Division Bench.
11. One of the submissions advanced before the Division Bench was that as the order passed under sub-section (10) of Section 48E, of the Act, is not appealable, this Section is discriminatory in nature. While answering the said question, this Court held that after withdrawal of the case under sub-section (10) of Section 48E of the Act, the Collector proceeded to decide the dispute in accordance with the provisions of sub-section (8) of Section 48E of the Act. It is apt to quote the relevant part of the judgment in paragraph 17 :
"Mr. Kailash Roy has attempted to make much out of the fact that Section 48F provides for an appeal only against an order under sub-section (8) and not sub-section (10) of Section 48E, and according to him, this fact itself is sufficient to show that the section is discriminatory. Sub-section (10) lays down that if the Board fails to record its finding or transmit its record as required in sub-section (7) within a period of six months from the date of its appointment, the Collector may withdraw the proceeding from the Board and decide the dispute himself according to the provision of this section. In my opinion, therefore, really no order is passed by the Collector on the merits of the case under sub-section (10). The order passed by the Collector under that sub-section is only for withdrawing the proceeding from the Board. Thereafter he proceeds to decide the dispute in accordance with the provisions of Section 48E, i.e., in accordance with the provisions of sub-section (8). Thus, after proceeding is withdrawn under sub-section (10), the order passed by the Collector on merit of the case is one under sub-section (8) and it is appealable under Section 48F. The section cannot, therefore, be held discriminatory on this ground either."
12. Learned counsel for the appellant, however, placed reliance over two subsequent decisions of this Court which have taken a contrary view. One is rendered by the Division Bench and other by a learned Single Judge and in that view of the matter, he submitted that the matter should be referred to a larger Bench. The judgment rendered by the Single Judge is reported in the case of Ahmad Mian and Ors. v. State of Bihar and Ors. , 1985 BUR 591 and the judgment rendered by the Division Bench is reported in the case of Rasik Lal Singh and Anr. v. State of Bihar and Ors. , 1979 BLJR 20. In both the cases it has been held that no appeal lies against the order passed under sub-section (10) of Section 48E of the Act.
13. It appears that the judgment rendered by the Division Bench in the case of Ram Narain Singh and Ors. v. State of Bihar and Ors. (supra) was not noticed much less considered in these two judgments. It is the settled law that when subsequent decision does not show consideration of the law laid down by the earlier decision, then the subsequent decision is per incurium. That apart, in these two judgments, the learned Judges proceeded on the assumption that the order was passed under sub-section (10) of Section 48E of the Act, and came to conclusion that no appeal would lie. As stated above, no final order is passed under sub-section (10) and after withdrawal of the case the final order is passed under sub-section (8) of Section 48E of the Act. Thus the law laid down in the case of Ram Narain Singh and Ors. v. State of Bihar and Ors. , (supra) in our view is the correct law and the subsequent judgments rendered in the aforesaid two cases are no longer a good law.
14. The other submission advanced on behalf of the appellant is that Section 48F of the Act provides that if an order is passed by an officer other than the Collector of a district, the appeal shall lie to the Collector of the District or to any other officer specially empowered by the State Government by notification. In our view, the learned Single Judge has already taken into consideration such submission and has rejected the same with an elaborate discussion. Thus, this submission also fails as devoid of substance. It will however be open to the appellant to file a suit before a Court of competent jurisdiction to get his right determined in view of the disputed question of facts involved in this case.
We do not find any merit in this appeal and the same is accordingly dismissed.