Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8417 of 2006 ====================================================== Md.Ashraf S/O Habib Mian, resident of village- Azam Nagar, P.S. Araria, District- Araria. .... .... Petitioner/s Versus 1. The State of Bihar 2. The Additional Collector, Araria.. 3. The Deputy Collector Land Reforms, Araria. 4. Abdhesh Kumar Sukla S/O Amiya Kumar Sukla, resident of Village Chitragupta Nagar, Araria, P.S. Araria, District- Araria. 5. Smt. Swornlata Devi W/O Ramanand Thakur, resident of Village Chitragupta Nagar, Araria, P.S. Araria, District- Araria. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Anil Prasad Singh Mr. Shashi Kumar For the Respondent No.1 to 3: Smt. Shail Kumari, S.C. 15 For the Vigilance : Mr. Ramakant Sharma, Sr. Adv. (Vigilance), with Mr. Santosh Kumar Pandey For the Respondent No. 4 & 5: Mr. K.K.Tripathi Mr. Arun Kumar Tripathi ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 9 17-09-2013
Facts
Heard the parties. 2. The petitioner is aggrieved by the order dated 22.05.2006 (Annexure-1) passed in Bataidari Appeal Case No. 19 of 2004-05 by the respondent Additional Collector, Araria in exercise of his powers under Section 48F of the Bihar Tenancy Act, 1885 (in short “B.T. Act”), whereby the aforesaid appeal preferred by the petitioner was dismissed and the order dated 31.08.2004 (Annexure-2) passed in Bataidari Case No. 3 of 2004- 05 by the respondent D.C.L.R., Araria has been affirmed. 3. Learned counsel for the petitioner submits that the petitioner filed his application under Section 48E of the B. T. Act before the respondent D.C.L.R., Araria with a prayer that he Patna High Court CWJC No.8417 of 2006 (9) dt.17-09-2013 2/5 should be declared bataidar with respect to the lands under dispute and the respondent landlords should be restrained from unlawfully ejecting him from the lands under dispute. On the basis of the aforesaid petition, Batai Case No. 3 of 2004-05 was registered and by order dated 20.04.2004 passed by the respondent D.C.L.R. notices were ordered to be issued to the landlords respondent no. 4 and 5. The matter was adjourned on several dates and thereafter finally by the impugned order dated 31.08.2004 (Annexure-2) batai claim of the petitioner was rejected by the respondent D.C.L.R., Araria without referring the batai dispute to the Batai Board in terms of Section 48E (3) of the B. T. Act, but by holding
Legal Reasoning
by a special Bench of this Court in the case of Dhanji Singh Vrs. The State of Bihar & Ors. [1979 BBCJ 521= A.I.R. 1979 Patna 259]. It is the case of the petitioner that the appeal preferred by him was mechanically rejected by the respondent Additional Collector, Araria by this impugned appellate order dated 22.05.2006 (Annexure-1) without considering about the violation of the aforesaid law, laid down by the special Bench of our own High Court. Therefore, it is contended that the orders impugned are not sustainable in law. 4. Learned counsel appearing on behalf of the respondents including respondent no. 4 and 5 have opposed the prayer and have supported the impugned orders passed by the respondent D. C.L.R., Araria as also the respondent Additional Collector, Araria. Learned counsel for the respondent no.4 and 5 submits that the respondent D.C.L.R., Araria has considered all Patna High Court CWJC No.8417 of 2006 (9) dt.17-09-2013 3/5 the issues and passed a long, reasoned, and an exhaustive order for rejecting the batai claim of the petitioner with respect to the lands under dispute. Therefore, according to him, in the face of such an exhaustive order, no interference is at all required by this Court. 5. It will be relevant to mention here that in the counter- affidavit filed on behalf of the respondent no. 4 and 5, a plea has been taken that the petitioner is not the resident of the village in question, rather he is an outsider and several criminal cases are pending against him. 6. In view of the aforesaid averments made on behalf of the respondent no. 4 and 5, a Bench of this Court by an order dated 08.03.2013 directed the Vigilance Investigation Bureau, Bihar, Patna to hold an enquiry and submit its report. In compliance of the aforesaid order passed by this Court, enquiry was conducted by the Vigilance Investigation Bureau, Bihar, Patna and enquiry report has been submitted in a sealed cover. Mr. Ramakant Sharma, learned Senior Counsel appearing on behalf of the Vigilance Investigation Bureau, Bihar, Patna, has submitted that on the basis of the enquiry it was found that the petitioner is a resident of the village Azam Nagar in the district of Araria and he is an Indian citizen. By referring to the enquiry report, he further submitted that the petitioner is registered as a voter/ elector for the village in question, though some criminal cases are pending against him in view of the pendency of the land dispute between the parties. 7. With respect to the criminal cases pending against the petitioner, learned counsel appearing on behalf of the petitioner has submitted that since the petitioner had lodged his claim under Section 48E of the B.T. Act before the respondent D.C.L.R., with Patna High Court CWJC No.8417 of 2006 (9) dt.17-09-2013 4/5 respect to the lands under dispute, therefore, certain criminal cases have crept up between the parties. 8. After having heard the parties and taking into consideration the entire materials available record as also taking into consideration the law laid down by the Special Bench of our own High Court in the case of Dhanji Singh Vrs. The State of Bihar & Ors (supra), this Court is of the opinion that the matter requires reconsideration and fresh decision right from the beginning. In the case of Dhanji Singh Vrs. The State of Bihar & Ors (Supra) it has been held that once a petition under Section 48E of the B.T. Act is filed, then the D.C.L.R., the Collector under the B.T. Act, is required to find out a prima facie case of bonafide batai dispute between the parties and after coming to such conclusion, the matter is required to be referred to the duly constituted Batai Board in terms of Section 48E (3) & (4) of the B.T. Act. It has been specifically held that at that stage the respondent D.C.L.R. cannot be permitted to hold a mini trial/ parallel enquiry for deciding the batai claim at his own level, after discussing all the materials either in favour or against the claimant. From the materials available on record, this Court finds that the respondent D.C.L.R. has passed a very exhaustive order, obviously by exceeding his jurisdiction vested in him at that stage. The impugned order passed by the respondent D.C.L.R., Araria is apparently contrary to the law laid down by the Special Bench of this Court in the case of Dhanji Singh Vrs. The State of Bihar & Ors (supra). The respondent Additional Collector, Araria, while passing the impugned appellate order, has failed to consider the scheme and scope of Section 48E of the B. T. Act and has failed to appreciate the flagrant violation of the law laid down by the Patna High Court CWJC No.8417 of 2006 (9) dt.17-09-2013 5/5 Special Bench of this Court in the case of Dhanji Singh Vrs. The State of Bihar & Ors (supra). 9. For the reasons recorded above, the impugned order dated 22.05.2006 (Annexure-1) passed in Bataidari Appeal Case No. 19 of 2004-05 by the respondent Additional Collector, Araria as also the impugned original order dated 31.08.2004 (Annexure- 2) passed in Batai Case No. 3 of 2004-05 by the respondent D.C.L.R., Araria are hereby set aside and the matter is remitted back to the respondent D.C.L.R., Araria with a direction to constitute a Batai Board in terms of Section 48E(3) & (4) of the B.T. Act and refer the matter to the aforesaid duly constituted Batai Board for promoting the settlement of the batai dispute between the under raiyat and the landlords regarding the lands in question. 10. It goes without saying that once there is recommendation by the Batai Board, the respondent D.C.L.R, shall be obliged to pass fresh final order regarding batai claim of the petitioner strictly in accordance with law particularly in accordance with the provisions of Section 48E of the B.T. Act, and by keeping in mind the principles enunciated by the special Bench in the case of Dhanji Singh Vrs. The State of Bihar & Ors (supra). 11. In the result, the writ petition stands allowed to the extent indicated above, but the parties are left to bear their own costs. BTiwary/- (Birendra Prasad Verma, J)
Arguments
a mini trial at the very threshold. It is contended that the impugned order dated 31.08.2004 passed by the respondent D.C.L.R., Araria, the Collector under the B.T. Act, is contrary to the law laid down