Patna High Court
Baldeo Bhagat & Ors vs State on 5 July, 2013
Author: Birendra Prasad Verma
Bench: Birendra Prasad Verma
Patna High Court CWJC No.6192 of 1990 dt.05-07-2013 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6192 of 1990
In the matter of an application under Articles 226 and 227 of the Constitution
of India
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1. Baldeo Bhagat
2. Mahadeo Bhagat
3. Krishnadeo Bhagat
All are sons of Shri Santlal Bhagat, and all are residents of village-Bela Badam
Dhobiya Tola, P.S.-Banmankhi, District-Purnea.
.... .... Petitioner/s
Versus
1. The State of Bihar
2. The Collector, Purnea
3. D.C.L.R., Purnea
4. Sk. Sakoor son of Sk. Liyakat ( since dead, his name has been expunged and
substituted by his legal heirs and representatives vide order dated 6.7.2010)
4 (i) Sk. Rajabul
4(ii) Sk. Sahabul
4(iii) Sk. Majahar
4(iv) Sk. Mashale
4(v) Sk. Zafir
4(vi) Sk. Dukha
4(vii) Sk. Azam
All are residents of village-Bishanpur Bahadur, P.O.- Pipara, Via-Chopara Ram
Nagar, P.S.-Banmankhi, District-Purnea.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr R. C. Thakur, Advocate
Mr. Kamal Kishor Singh, Advocate
For the Respondent
Nos. 1 to 3 : Mr Anil Kumar Singh, A.C. to S.C. 16
For the Respondent
No. 4 : Mr. Arun Prasad Ambastha, Advocate
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CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA
ORAL JUDGMENT
Date: 05-07-2013
Heard the parties.
2. The petitioners, being aggrieved by the order dated
30.5.1987(Annexure-1) passed in Case No. 272 of 1982-83 by the respondent D.C.L.R., Sadar, Purnea, as also the appellate order dated 24.8.1990 (Annexure-2) passed in Revenue Revision No. 43 of 1987- Patna High Court CWJC No.6192 of 1990 dt.05-07-2013 2 88 (wrongly described as revision, in fact it should have been appeal) by the respondent District Collector, Purnea, have preferred the present writ petition under Articles 226 and 227 of the Constitution of India assailing the validity and correctness of the impugned original order at Annexure-1 as also the impugned appellate order at Annexure-2.
3. The facts involved in the present proceeding are not in much controversy. Original respondent No.4, Sk. Sakoor (since deceased and substituted by his heirs and legal representatives) filed a petition under Section 48E of the Bihar Tenancy Act, 1885 (in short B.T. Act) claiming his bataidari right with respect to plots of land bearing Khata No. 8, 246, 247, 241, 21 and 446, appertaining to Khesra No. 209, 210, 214, 16, 545, 670 and 671, area being 1.43 acres, 84 decimals, 64 decimals, 24 decimals, 2.09 acres, 1.05 acres, 1.03 acres respectively , total area being 7.32 acres, situate at Mouza- Bishanpur Bahadur in the district of Purnea. On the basis of aforesaid petition bataidari Case No. 272 of 1982-83 was instituted and notices were issued to the landholders, who are the petitioners in the present proceeding. Subsequently, a Bataidari Board was constituted in terms of Section 48E (4) of the B. T. Act and the matter was referred to the Bataidari Board so constituted for recording its findings and for making its recommendation with respect to the batai claims raised on behalf of the original respondent No. 4, namely, Sk. Sakoor.
4. It appears that despite constitution of the Bataidari Board by the respondent D.C.L.R., Sadar, Purnea and despite reference of the matter to such Bataidari Board, no report was submitted by the said Bataidari Board, and it failed to record its finding within a period of six months, as a result thereof, the respondent D.C.L.R., Sadar, Purnea, being the Collector under the B. Patna High Court CWJC No.6192 of 1990 dt.05-07-2013 3 T. Act, in exercise of his powers under Section 48E (10) of the B. T. Act decided to withdraw the aforesaid proceeding from the Bataidari Board and proceeded to decide the matter himself. Parties are said to have led evidence in support of their respective claims over the lands in question and finally by the impugned order dated 30.5.1987 (Annexure-1), claimant, Sk. Sakoor, was declared as bataidar over the lands in question. Petitioners, being aggrieved by the aforesaid order passed by the respondent D.C.L.R., Sadar, Purnea, approached the respondent District Collector, Purnea purportedly under Section 48F of the B,.T. Act, but their appeal was rejected by the impugned appellate order dated 24.8.1990 (Annexure-2). Hence, the present writ petition.
5. Learned counsel appearing on behalf of the petitioners submits that the respondent D.C.L.R, Sadar, Purnea has not decided the case of the parties strictly in accordance with law prescribed under Section 48E (10) of the B.T. Act and rules made thereunder. Therefore, it is contended that the impugned original order is not sustainable in the eye of law. According to him, the District Collector, Purnea has also not applied his independent judicial mind to the facts of the case, therefore, the impugned appellate order has also vitiated and is fit to be set aside.
6. Learned counsel appearing on behalf of the heirs and legal representatives of the deceased-respondent No. 4, Sk.Sakoor, has opposed the prayer and has supported the impugned order. According to him, before the respondent D.C.L.R. Sadar, Purnea, both the parties have led their evidence and thereafter, the matter was decided in favour of respondent No. 4. It is next contended that the points which have been advanced here was not raised on behalf of the petitioners before the respondent District Collector, Purnea. Patna High Court CWJC No.6192 of 1990 dt.05-07-2013 4 Therefore, according to him, the order passed by the District Collector, Purnea cannot be faulted.
7. After having heard the parties and on consideration of the materials available on record, this Court finds that respondent D.C.L.R. Sadar, Purnea has passed the impugned final order dated 30.5.1987 (Annexure-1) in exercise of his powers under Section 48E (10) of the B.T. Act. Under the scheme of Section 48F of the B.T. Act no appeal does lie before the respondent District Collector against any final order passed in terms of Section 48E (10) of the B. T. Act. Therefore, the petition/appeal filed by the petitioners before the respondent District Collector, Purnea purportedly under Section 48F of the B. T. Act was completely misconceived and ill advised. The impugned appellate order dated 24.8.1990 (Annexure-2) appears to be redundant in the eye of law.
8. In fact, the petitioners are aggrieved by the original order dated 30.5.1987 (Annexure-1) passed by the respondent D.C.L.R. Sadar, Purnea. It is true that if the Bataidari Board fails to record its finding within the statutory period of six months, then the Collector under the B. T. Act has the power to withdraw the proceeding in exercise of his powers under Section 48E (10) of the B.T. Act. But in that case he is obliged to decide the proceeding strictly in accordance with the procedure prescribed under the provisions of Section 48E of the B.T. Act. All the procedures mentioned therein from the stage of sub Section 6 of Section 48 E are required to be followed by the Collector under the B. T. Act. He is required to make endeavour for amicable settlement of the dispute between the parties and only thereafter he can proceed further for recording the evidence of the parties. Admittedly, in the present proceeding, the respondent D.C.L.R., Sadar, Purnea has not complied Patna High Court CWJC No.6192 of 1990 dt.05-07-2013 5 with the mandate of Section 48E (6) of the B. T. Act and without complying that mandate he proceeded further and recorded evidence of the parties. Non-compliance of the mandate under Section 48E (6) of the B. T. Act itself vitiates the entire proceeding carried out by the respondent D.C.L.R., Sadar, Purnea and on that ground alone the impugned final order dated 30.5.1987 (Annexure-1) cannot be sustained in the eye of law.
9. For the reasons recorded above, the impugned order dated 30.5.1987 (Annexure-1) passed in Case No. 272 of 1982-83 by the respondent D.C.L.R., Sadar, Purnea is hereby set aside and the matter is remitted back to him for a fresh decision in accordance with law, as indicated above.
10. Though the impugned appellate order dated 24.8.1990 (Annexure-2) is redundant in the eye of law, yet in abundant precaution it is also set aside. Now the respondent D.C.L.R., Sadar, Purnea shall decide the claim of the parties afresh expeditiously in terms of Section 48E (10) of the B.T. Act.
11. In order to expedite the matter, petitioners as also the substituted heirs and legal representatives of deceased respondent No. 4 are hereby directed to appear before the respondent D.C.L.R, Sadar, Purnea with a certified copy of the present order within a maximum period of two months from today. On receipt/production of a copy of the present order, the respondent D.C.L.R. Sadar, Purnea shall fix a firm date and shall proceed in the matter further to decide the same afresh after giving reasonable opportunity of hearing to both sides.
12. At the fag end, learned counsel appearing on behalf of the petitioners has submitted that during the pendency of the present writ petition before this Court, Purnea Sadar Sub-Division has been bifurcated and a new sub-division, namely, Banmankhi Sub- Patna High Court CWJC No.6192 of 1990 dt.05-07-2013 6 Division, has been created in the district of Purnea. It is contended that in view of the aforesaid bifurcation and creation of a new sub- division, the matter may be required to be decided afresh by the D.C.L.R., Banmankhi, District Purnea, since the lands in dispute fall within the territorial jurisdiction of Banmankhi Sub-Division. If that be the position and if the original records of Bataidari case has been transferred to Banmankhi Sub-Division, then the respondent D.C.L.R., Sadar, Purnea after hearing the matter on some dates, if both the parties agree, he shall be at liberty to transfer the matter to the D.C.L.R., Banmankhi, Purnea for deciding the matter afresh in the light of the observation and direction made above.
13. In the result, the writ application stands allowed to the extent indicated above with the observation and direction made above.
14. The parties are left to bear their own costs.
(Birendra Prasad Verma, J) sudip/-
A.F.R.