The non-availability of a party's nominee on the Bataidari Board, irrespective of the reason, necessitates the Collector's appointment of another person to ensure a complete and valid Board.

1. This writ application is directed against the order, dated the 13th of June, 1976 passed by the Deputy Collector-in-charge Land Reforms, Naugachhia (Respondent No. 2) in a proceeding started under S. 48-E of the Bihar Tenancy Act, 1885 (hereinafter to be referred to as the Act) on the petition filed by respondent No. 4, Sattam Sharma, on or about the 19th September, 1975, for a declaration of his raiyati limits over the lands in question. On the basis of that application Bataidari Case No. 12 of 1975 was registered by respondents No. 2 and after notice, the parties were directed to nominate their Panchas to constitute the Bataidari Board. The landlords, who are the petitioners before us, had nominated one Satto Choudhary as their Panch. This Panch did not participate in any of the proceedings of the Board, rather an application was filed by the petitioners before respondent No. 2 that their Panch would not participate in the meeting of the Board, which was scheduled to be held at Village Shaho Parbatta. The ground for non-participation of the petitioners Panch was apprehension of overt acts on his person at the instance of respondent No. 4. In the counter-affidavit that has been filed on behalf of respondent No. 4, it has been controverted that any threat was held by the said respondent. It, however, stands admitted that Satto Choudhary did not participate in any of the sittings of the Board. A part of the order-sheet of the Board has been made Annexure-3 to the writ application and the orders, dated the 20th April, 1976 and 16th May, 1976 indicate that Satto Choudhary was absent and he was refusing to attend the meeting unless the Board held its sitting at Naugachhia. In that view of the matter, the Board consisting only of the Chairman and the Panch of respondent No. 4 proceeded to decide the issues and ultimately forwarded a report in favour of respondent No. 4 and on that basis; respondent No. 2 passed the order on the 13th June, 1976, as already stated above, in agreement with the report of the Board, accepting the Bataidari claim of respondent No. 4 and directing the petitioners not to interfere with bis possession. An appeal was filed against the said order by the petitioners before the Collector, Bhagalpur, who by his order, dated 11th January, 1977, dismissed it on the ground of limitation. The petitioners have accordingly come to this Court.

2. Mr. Asghar Hussain, learned Counsel appearing in support of this petition, on the basis of the proviso to sub-section (4) of S. 48-E of the Act; contended that in as much as the nominee of the petitioners was not available, the Deputy Collector-in-charge Land Reforms should have appointed another person in his place, as he thought fit as their panch to constitute the Board and in the absence of any such appointment, any decision taken by the Board in the proceeding was incompetent and, therefore, the order passed by respondent No. 2 in the absence of the petitioners nominee cannot be sustained.

3. In order to appreciate the contention, we extract the relevant provision, namely, sub-sec. (4) of S. 48-E with its proviso :

"4. A Board to be appointed by the Collector in the prescribed manner under Sub-sec. (3) shall consist of a Chairman, who shall be unconnected with the dispute referred to such Board or with any party directly affected by such dispute and two members to represent the parties to the dispute and the person appointed as a member to represent any party shall be appointed on the recommendation of that party : Provided that if any party does not nominate any person to represent him in the Board or nominates a person who is not available within such time as the Collector considers reasonable, the Collector may appoint such person, as he thinks fit to represent that party."

4. Learned Counsel for respondent No. 4 contends that the expression not available would not cover a case where a nominee deliberately absents himself or non-co-operates with the delibera