Patna High Court - Orders
Shankar Singh & Anr vs The State Of Bihar & Ors on 15 July, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5128 of 2004
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1. Shankar Singh son of Kamal Singh, resident of village-Khabaspur, PS-
Simraha (Forbesganj), Araria.
2. Surendra Singh son of Kamal Singh, resident of village-Khabaspur, PS-
Simraha (Forbesganj), Araria.
.... .... Petitioner/s
Versus
1. The State of Bihar
2. The Additional Collector, Araria
3. The DCLR, Forbesganj, Araria
.... Respondents 1st set
4. Satya Narayan Singh son of late Brahaspati Singh
5. Kedar Singh son of late Brahaspati Singh
Both residents of village-Khabaspur, PS-Simraha (Forbesganj), Araria.
.... Respondents 2nd set
6. Jai Shankar Jha son of Sheo Shankar Jha
7. Raj Shankar Jha son of Sheo Shankar Jha
Both residents of village-Khabaspur, PS-Simraha (Forbesganj), Araria.
.... Respondents 3rd set
8. Bishwanath Jha son of Late Dharm Nath Jha (expunged vide order)
8. (a) Kumar Nath Jha
(b) Sushil Jha
(c) Sunil Jha
(d) Raju Jha
(e) Dipu Jha
9. Kedar Nath Jha son of Late Dharm Nath Jha
10. Ram Nath Jha son of Late Dharm Nath Jha (expunged vide order)
10 (a) Paras Jha
(b)Munna Jha
11. Amar Nath Jha son of Deo Nath Jha
12. Binod Kumar Jha son of Deo Nath Jha
13. Pramod Kumar Jha son Deo Nath Jha
All residents of village-Khabaspur, PS-Simraha (Forbesganj), Araria.
.... Respondents 4th set
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Appearance :
For the Petitioner/s : Mr. Gyanand Roy, Adv.
Mr. Sheo Nandan Mishra, Adv.
For the Respondent/s : Mr. B. Mishra, Adv.
Mr. Rajendra Jha, Adv.
Mr. Taniya Mishra, Adv.
For the State Mr. Rajiv Kumar Singh, GP-2
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
10 15-07-2014Heard learned counsel for the petitioners and learned Patna High Court CWJC No.5128 of 2004 (10) dt.15-07-2014 2/6 counsel for the State.
In this case, petitioners are challenging the order dated 17th February 2014 whereby and whereunder the Additional Collector, Araria allowed Bataidari Appeal No.144/1995-96 and set aside the order passed in Bataidari Case Nos. 139/1992-93/ 273/1994-95 and order passed in Bataidari Case Nos. 398/1993- 94/ 404/1995-96.
From the record it appears that a proceeding u/s 48E of the B.T. Act was initiated with regard to the lands mentioned in paragraph 5 of this writ application by the present petitioner against sons of Ram Sundari Ojhain, namely, Bishwanath Jha Kedar Nath Jha and Ram Nath Jha vide Bataidari Case No. 139/1992-93. In that case, petitioners were declares as under raiyat of the land mentioned above.
After some time, Satya Narayan Singh and Kedar Singh filed Bataidari Case No. 144/1995-96 against Jai Shankar Jha and Raj Shankar Jha who are grandsons (Nati) of Ram Sundari Ojhain, in that case, it has been claimed that Jai Shankar Jha and Raj Shankar Jha were/are in possession of the land and they were/are the Bataidars.
The matter was referred to the Conciliation Board which gave its opinion in favour of Satya Narayan Singh and Patna High Court CWJC No.5128 of 2004 (10) dt.15-07-2014 3/6 Kedar Singh but the D.C.L.R. did not accept the report of the Conciliation Board and held that no prima facie is made out showing relationship of land lord and Bataidar by Satya Narayan Singh and Kedar Singh, Respondent nos. 4 and 5. Against that order, both of them filed an appeal which was registered as Bataidari Appeal No. 144 of 1995-96 there the Additional Collector, Araria not only set aside the order passed in Bataidari Case No. 398/1993-94 but also set aside the order passed in Bataidari Case No. 139/1992-93.
Claim of the petitioners is that when petitioners were declared as under raiyat and it reached to a finality, the second application filed by the Satya Narayan Singh and Kedar Singh with respect to the same piece of land showing themselves as bataidar, Jai Shankar Jha and Raj Shankar Jha as the land holder is not sustainable in law, as the basis of claim of ownership over the land is dependent on purported will which has not been probated till date so much so that inter se dispute of under raiyat cannot be decided in a proceeding u/s 48E of the Act that can only be decided in a proceeding before the properly constituted civil court. Third point that has been raised by the petitioners is that when the order passed in Bataidari Case No. 139/92-93 was never challenged before the Appellate Forum, he could not have set Patna High Court CWJC No.5128 of 2004 (10) dt.15-07-2014 4/6 aside the order in a collateral proceeding which amounts to assume the jurisdiction which he does not have, he should not have considered the merit of order passed in Bataidari Case No. 139/1992-93 in absence of challenge and setting aside the order of that proceeding is a nullity and not sustainable in law.
Reliance has been placed on two judgments, out of which, one is reported in 1998 (3) PLJR 78, (Laxmi Kant Rai v. State of Bihar & ors.) and another is unreported passed in CWJC Nos. 3269 and 3461 of 1987.
In a judgment reported in 1998 (3) PLJR 78, this Court has held that a dispute of under raiyat that has been decided and reached to a finality with respect to the same piece of land, the application under section 48E is not maintainable in law and in CWJC No. 3269 of 1987 (Gopal Sharan Singh vs. the State of Bihar) it has been held that inter se dispute of under raiyat cannot be adjudicated by the authority in a proceeding of Section 48E of the Act.
The counsel for the other side has submitted that there is nothing wrong in the order passed by the Appellate Authority as petitioners himself appeared as intervenor and after hearing them, the Appellate Authority has rightly exercised the power and set aside the order passed in both the cases. The land in Patna High Court CWJC No.5128 of 2004 (10) dt.15-07-2014 5/6 question was given to Jai Shankar Jha and Raj Shankar Jha through will executed by Ram Sundari Ojhain. He has further submitted that there is a finding recorded by the Appellate Court that Jai Shankar Jha and Raj Shankar Jha were given the units by this Court in the land ceiling proceeding and as such, it is wrong to say that they did not have a right to participate in the Bataidari proceeding and settle the dispute of under raiyats with Respondent nos. 5 and 6. He has further submitted that though Revenue Court has no jurisdiction to decide the inter se dispute but certainly while deciding the case with respect to the petition filed by petitioners, private respondents were not given any notice as has been recorded by the Appellate Court so much so that the proceeding was not conducted in proper manner, wrongly ignored settlement of Satya Narayan Singh and another in one side and Jai Shankar Jha and another in another side Having considered the rival contentions of the parties, there is no dispute in law that inter se dispute of under raiyat cannot be subject-matter of consideration in 48E proceeding. If two parties are claiming to be under raiyat of a particular piece of land that can only be settled in a proper proceeding before competent civil court and also if already a person has been declared as under raiyat, the second petition filed Patna High Court CWJC No.5128 of 2004 (10) dt.15-07-2014 6/6 by another person with respect to the same piece of land is not sustainable as there cannot be two under raiyat with regard to the same piece of land. Third point is also clear that Respondent nos. 5 and 6 never challenged the order that was passed in favour of petitioners arising from Bataidari Case No. 139/1992-93 and as such, the Appellate Forum cannot assume a jurisdiction with regard to a lis which was never subject-matter before him and he cannot pass an order in a collateral proceeding which was filed challenging another order passed in another case.
This Court is of the view, the order dated 17th February 2004 passed by Additional Collector, Araria in Bataidari Case No. 144/1995-96 is not sustainable in law, accordingly, the same is quashed and this petition is allowed.
Respondent nos. 4 and 5, if so advised, may approach proper court of competent jurisdiction for redressal of their grievance.
(Shivaji Pandey, J) Mahesh/-
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