Patna High Court
Tarini Mandal vs The State Of Bihar And Ors. on 10 February, 2005
Equivalent citations: 2005(1)BLJR528
Author: Mridula Mishra
Bench: Mridula Mishra
JUDGMENT Mridula Mishra, J.
1. This application has been filed by the petitioner's for quashing the order dated 16.11.1999 passed by the Addl. Collector, Purnea, in Revision Appeal No. 24 of 1997.98. By this order respondent No. 2 has allowed the appeal and has also quashed the order dated 4.6.1997 passed by the Dy. Collector Land Reforms at Dhamdaha, in terms of the provisions of Sub-section (10) of Section 48E of the Bihar Tenancy Act Dy. Collector Land Reforms at Dhamdaha passed in terms of the provision of Sub-section 10 of Section 48E of the Bihar Tenancy Act has been quashed.
2. This order has been challenged by the petitioners on three grounds (1) that the order passed by the Addl. Collector, Purnea is without jurisdiction as under the provision of Section 48E of the Bihar Tenancy Act the appeal lies only against the orders passed under Sub-sections 7 & 8 of Section 48 of the Bihar Tenancy Act. No appeal is maintainable against the order passed under Sub-section 10 of Section 48E of the Bihar Tenancy Act (2) The impugned order has been passed by the Addl. Collector relying on the decision in the case of flam Narain Singh v. State of Bihar, (1973) BLJR 662 which has no binding effect as it is a judgment in sub-silentio. (3) The Addl. Collector is not the appellate authority under Section 48F of the Bihar Tenancy Act as only the Collector of the District is authorised to exercise appellate jurisdiction under Section 48F of the Bihar Tenancy Act, the order impugned is without jurisdiction as it has been passed by the Addl. Collector.
3. For deciding the points which has been raised by the petitioners it is necessary that the facts of the case should be mentioned in the order. Petitioner claims to be bataidar of the land situated at village Koeli Simra, P.S. Rupouli in the district of Pumea appertaining to plot Nos. 3392 and 3393 and 1654 measuring total area of 4.18 acres. The land was originally belonged to one Devi Prasad Choudhary. @ Devi Lal Choudhary and Ram Sahay Choudhary under whom the father of the petitioner was a under raiyat. On the death of his father the petitioner continued to cultivate the land as an under raiyat. Respondent No. 3 Shri Ganesh Choudhary is the grand son of original landholder who was allotted this land in family partition. Respondent No. 3 wanted to sell the land and also made an attempt to dispossess the petitioner from cultivating possession of the land. Being apprehensive of threatened ejectment the petitioner filed an application under Section 48E of the Bihar Tenancy Act which was numbered as case No. 25 of 1986-87. On initiation of proceeding under Sub-section (1) of Section 48E of the Bihar Tenancy Act, a Board was constituted and the matter was referred to the Board. The Board failed to record its finding and transmit the record within the statutory period of six months to the Collector under the Act. As such, the matter was withdrawn from the Board in terms of the provision of Sub-section (10) of Section 48E of the Bihar Tenancy Act. The D.C.L.R. made efforts for amicable settlement and on failure of amicable settlement called upon the parties to adduce evidence. The petitioner and respondent No. 3 both examined their witnesses. A local enquiry was also made by the D.C.L.R. and subsequently by order dated 4.6.1997 claim of the petitioners as bataidar was allowed. Against this order respondent No. 3 preferred an appeal vide Revenue Appeal No. 24 of 1997, 98. The maintainability of this appeal was challenged by the petitioners on the ground that the appeal under Section 48E of the Bihar Tenancy Act lies only against the order passed under Sub-section (7) or Sub-section (8) of the Bihar Tenancy Act. However, relying upon the decision in the case of Ram Narain Singh and Anr. v. State of Bihar and Ors., 1973 BLJR 662, the appeal was held maintainable. The Addl. Collector did not even discussed the case on merit and by order dated 16.11.1999 the appeal was allowed. This, order has been challenged by the petitioner in the present writ application.
4. A counter-affidavit has been filed by respondent No. 3.
5. The grounds on which the petitioner has challenged the impugned order has already been mentioned in the aforementioned paragraph. The first ground which has been taken by the petitioners is that the Addl. Collector has wrongly placed reliance in the case of Ram Narain Singh and Anr. v. State of Bihar and Ors, 1973 PLJR 81 for deciding that the appeal is maintainable under Section 48F of the Bihar Tenancy Act also against an order passed under Sub-section (10) of Section 48E of the Bihar Tenancy Act. It has been submitted that the question whether against the order under Sub-section (10) of Section 48E of the Bihar Tenancy Act an appeal lies or not was not an issue in the case of Ram Narain Singh and it was not canvassed before the Hon'ble Court by the parties and, therefore, the decision in 1973 BLJR 662 has no binding precedent. It was a decision sub-silentio and for this petitioners counsel has placed reliance on 1990 (1) BLJR 51 Kalika Kuer @ Kalika Singh v. State of Bihar and Ors., 1993 (2) BLJ 583 Shankar Prasad Sahi v. State of Bihar and Ors. and 1991 (1) BLJR 23 Md. Jainui Ansari and Ors. v. Md. Khalil. In 1991(1) BLJR 12 it has been held that the judgment rendered while ignoring the relevant provisions of statute must be held to be in per incuriam. Such judgment is not binding precedent for any co-equal Bench. In 1993(2) BLJ 583 while deciding a case under the provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Act it has been held that :
"Para-25. It is now well known that a decision is an authority for the, proposition what it decides. A decision which has not taken into consideration the provisions of the statute or has been passed in ignorance of the statute or any earlier decision does not create any binding precedent having been rendered per incurian or having passed sub-silentio."
"Para-26. In the case of Kalika Kuer v. The State of Bihar and Ors., 1983 PLJR 1203, it has been held by this court that when decision has been rendered without taking into consideration and earlier decision or a provision of status, the same does not create a binding precedent. It was further held that a point not argued before a Bench cannot deter a subsequent Bench to decide the same."
6. The decision reported in 1990 (1) BLJR 51 was with respect to Bihar Consolidation of Holdings and Prevention of Fragmentation Act 1956. While considering a question as to whether the provision of Section 4(c) 12-A-37 of the Consolidation Act are ultra vires. A special Bench decision of Ramkrit Singh's case (supra) was taker) into consideration and it was held that since in Ramkrit Singh's case the Special Bench did not consider the earlier Full Bench decision of this Court in the case of Brij Bhukhan Kalwar v. S.D.O. Siwan and Ors., AIR 1955 Patna 1 not it has taken into consideration the Full Bench decision in the case of Patna Municipal Corporation v. Rambachan Lal, 1961 BLJR 3. As much it must be held to have rendered per incuriam inasmuch as it is the case the special Bench did not consider the scope, effect and purport of Sections 4(B), 4(C) and 37 of the Act. For coming to this conclusion in Kalika Kuer v. State of Bihar, reliance was placed on Municipal Corporation, Delhi v. Gurnam Kaur, 1989 (1) SCC 101 wherein it has been held that a decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B. was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specified outcome, the decision is not an authority on point B. Point B is said to pass sub-silentio.
7. Relying on this decision the arguments advanced by the petitioner's counsel is that in decisions reported in 1973 PLJR 81, the decision of the question was whether Section 48E of the Bihar Tenancy Act after amendment of 1970 is hit by Article 14 of the Constitution of India as it is discriminatory in nature. The question whether an appeal is maintainable against an order passed under Sub-section (10) of Section 48E of the Bihar Tenancy Act, was not for consideration and neither any argument was advanced by the party on this issue. The finding which has been recorded. Its effect will be a decision passed in sub-silentio, as such, it will not have any binding effect. To decide the point raised by the petitioners I would like to refer two paragraphs of this decision.
"Para-4, it has been contended by Mr. Kailash Roy, who has appeared on behalf of the petitioners in all these applications, that the section, as it stands now after the amendment of 1970, is hit by Article 4 of the Constitution as it is discriminatory in nature. According to, learned counsel, the section leaves a discretion in the Collector and the under-raiyat in the matter of initiating a proceeding against the landlords without laying down any guidelines for the purpose with the result that while in similar circumstances a proceeding under the section may be started against one landlord, it may not be started against the other and a civil suit may be filed against him by the under-raiyat. He has submitted that a landlord against, whom a civil suit will be filed by one under-raiyat will have certain advantages over the landlord against whom a proceeding under the said section with drastic consequences is initiated. In support of his submission that the provisions of the sections are drastic, he has drawn our attention to Sub-section (11) which makes the disobedience of the order passed under the section an offence and provides for sentence of imprisonment extending to six months or fine extending to one thousand rupees or both. Further according to learned counsel (sic) Sub-section (13) which takes away jurisdiction of the Civil Court over the subject- matter of a proceeding initiated under the section is itself drastic. Learned counsel for the petitioners has further submitted that the section is discriminatory also on the ground that read with Section 48F, an appeal can be filed only against orders passed under Sub-section (8) of the section but not against orders passed under Sub-sections (6), (7) and (10)."
"Para-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 a 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."
8. After going through these two paragraphs I am of the view that the finding recorded in the Full Bench decision, 1973 BLJR 662 was not a decision in sub-silentio rather when the virus under Section 48E of the Bihar Tenancy Act was challenged on the ground that it is discriminatory in nature. The different sub-sections of Section 48E were discussed. Arguments were advanced by the parties and on full discussions of different provisions of Section 48E of the Bihar Tenancy Act the finding was recorded that under Sub-section (10), in fact, no specific order is passed by the Collector under the Act. He only recalls the matter from the Board and thereafter, he proceeds under Section 48E of the Bihar Tenancy Act i.e., he proceeds in terms of Sub-section (7) or Sub-section (8) of Section 48E of the Bihar Tenancy Act, as such order passed under Section 48E (10), finally decided either in terms of Sub-section (7) or (8) of Section 48E, and they are appelable.
9. Learned counsel for the petitioner has also placed reliance on a Division decision in the case of Rasik Lal Singh and Anr. v. State of Bihar and Ors., 1979 BBCJ 10 followed by another decision reported in 1984 BBCJ 299 including 1985 PLJR 589 Ahmad Mian and Ors. v. The State of Bihar and Ors.. In 1985 BLJR 591 reliance has been placed on AIR 1977 Patna 315 Jairam Das Vatia and Anr. v. State of Bihar and Ors.. In both these decisions it was not a question whether an appeal lies under Section 48F of the Act against an order passed under Sub-section (10) of Section 48E of the Bihar Tenancy Act, Only point which was raised was whether an appeal lies also against an order passed under Sub-section (7) of Section 48E of the Bihar Tenancy Act or only against the order passed under Sub-section (8) of Section 48E of the Act. The finding recorded was that an appeal will lie under Section 48F of the Bihar Tenancy Act not only against the order passed under Sub-section (8) of Section 48E of the Bihar Tenancy Act but also against the order passed under Sub-section (7) of Section 48E of the Bihar Tenancy Act. In all these decisions, the Full Bench decision reported in 1973 PLJR, has neither been considered nor it has been discussed. There is no finding that appeal will lie against an order passed under Sub-section (10) of Section 48E of the Bihar Tenancy Act. In the circumstances, the argument advanced by the petitioners counsel has no force and he cannot assail the impugned order on this ground, that the question of maintainability of the appeal has wrongly been decided relying on the decision reported in 1973 BLJR 662.
10. Another ground which has been taken by the petitioner's counsel is that the order impugned is without jurisdiction as under Section 48F of the Bihar Tenancy Act only the Collector of the district has been vested with the power to entertain appeal. Since the order impugned has been passed by the Addl. Collector, the order is without jurisdiction. Section 48F dealing with the appeal is as follows :
"48F. Appeals.--(1) Appeal shall lie from an order referred to in Sub-section (8) of Section 48G.
(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 so 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 48E 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 48E or an appeal under this section, the Civil Court, shall have no power during the pendency of the suit, to stay the enforcement of such order."
11. Under Section 48F of the Bihar Tenancy Act the Collector of the District as well as any officer specially empowered by the State Government by notification has been authorised to hear an appeal preferred against an order passed under Sub-sections (7) and (8) of Section 48E of the Bihar Tenancy Act. Argument advanced by the learned counsel for the petitioners is that the Addl. Collector is not authorised to hear appeal under Section 48F of the Bihar Tenancy Act. Learned counsel for the respondent Nos. 3, 4 and 5 has submitted that the Addl. Collector, Purnea, has been empowered to hear appeal under Section 48F of the Bihar Tenancy Act vide S.O. 1210 dated 10th December, 1970 in exercise of the power conferred by Clause 16 of Section 3 of the Bihar Tenancy Act. A copy of the notification has been produced which is as follows :
"Vide S.O. 1210 dated 10th December, 1970.
In exercise of the powers conferred by Clause (16) of Section 3 of the Bihar Tenancy Act, the Governor of Bihar is pleased to appoint all Additional Collectors, Sub-Divisional Officers and Dy. Collectors Incharge of Land Reforms in the State to discharge all the functions of a Collector under Section 48E of the Bihar Tenancy Act in their respective jurisdiction."
12. Since there is a notification to this effect and authorising the Addl. Collector to exercise jurisdiction under Section 48F of the Bihar Tenancy Act, the objection raised by the petitioners' counsel is not sustainable. Another point which has been raised by the petitioners counsel is that the Addl. Collector, Purnea, while deciding the appeal did not discuss the merit of the case. I find that this argument has no legs to stand. The Addl. Collector has discussed the case of the petitioners as well as the case of the respondents in detail and then he has come to a finding that the claim of the petitioners that they are under-raiyats of the land has not been proved.
13. Considering all the facts and circumstances, I am of the view that the Addl. Collector has exercised jurisdiction as he was vested with the power by a Government notification. The Add|. Collector has rightly taken the decision on the basis of the decision the petitioners as well as respondents. There is ho illegality in the order. Accordingly, this writ application is dismissed.