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1991 Supreme(Pat) 213
PATNA HIGH COURT
Satyeshwar Roy, B.N.Agrawal and N.Pandey JJ.
Shankar Mandal
Versus
Deputy Collector
Civil Writ Jurisdiction Case No. 3905 of 1982 ;
Decided On : MAY 7, 1991
The provisions of Sec. 48E of the Bihar Tenancy Act, 1885 are applicable to lands lying within a municipality constituted under the Bihar and Orissa Municipal Act, 1922, unless a notification is issued by the State Government excluding such area from the operation of the Act.
Headnote:
BIHAR TENANCY ACT, 1885 - SEC. 1(3), 3(4), 3(9), 4, 5, 102, 48E - APPLICABILITY TO MUNICIPAL AREAS - NOTIFICATION REQUIRED - UNDER-RAIYAT'S APPLICATION FOR PREVENTION OF THREATENED EJECTMENT - REQUISITE FACTS NOT PLEADED - DISMISSAL OF APPLICATION - REMAND FOR FRESH CONSIDERATION.
Fact of the Case:
Petitioner, an alleged under-raiyat, filed an application under Sec. 48E of the Bihar Tenancy Act, 1885 (the Act) seeking to restrain the landlords from interfering with his possession. The application was dismissed by the Collector on the ground that the land in dispute was situated within the limits of Bhagalpur municipality and hence the Act was not applicable. The petitioner challenged this order in a writ petition.
Finding of the Court:
The Court held that the Act applies to the area lying within the limits of Bhagalpur municipality as no notification was issued excluding the area from the operation of the Act. However, the Court found that the petitioner's application under Sec. 48E was not maintainable as he had failed to plead the necessary facts, such as the existence of a holding and his status as an under-raiyat within the meaning of the Act.
Issues: 1. Whether the provisions of Sec. 48E of the Act are applicable to lands lying within a municipality constituted under the Bihar and Orissa Municipal Act, 1922. 2. Whether any other notification by the Government is required to be issued for excluding the applicability of the provisions of the Act to the lands which lie within the municipal area under Sec. 1(3) of the Act.
Ratio Decidendi: 1. Sec. 1(3) of the Act excludes the applicability of the Act to any area constituted, or deemed to have been constituted, a municipality under the Bihar and Orissa Municipal Act, 1922, unless a notification is issued by the State Government specifying such area. 2. The Full Bench decision in Haridayal Narain Singh V/s. Md. Shariff (AIR 1968 Patna 296) held that there must be an express notification excluding the municipal area from the operation of the Act. 3. In the absence of such a notification, the Act applies to the area lying within the limits of Bhagalpur municipality. 4. An application under Sec. 48E of the Act must plead the existence of a holding and of an under-raiyat, both within the meaning of the Act.
Final Decision: The Court allowed the writ petition, quashed the Collector's order, and remanded the matter back to the Collector for fresh consideration after giving the petitioner an opportunity to file an application stating the necessary facts and giving the respondents an opportunity to file their rejoinder.
SATYESHWAR ROY., J.
1. The petitioner filed an application before respondent No. 1 under Sec. 48E of the Bihar Tenancy Act, 1885 (the Act) in which he, inter alia, stated that he was an under-raiyat within the meaning of the Act in respect of the land in dispute and he was being threatened with ejectment by the landlords. Prayer was made to restrain original respondents Nos. 2 and 3 to interfere with possession of the petitioner as under-raiyat. That application was registered as Bataidari Case No. 1 of 1982-83. Original respondents Nos. 2 and 3 died during the pendency of this writ petition and their legal representatives were substituted. Respondent No. 1 by the order as contained in annexure 1 dismissed that application. This has been challenged in this writ petition.
2. The learned single Judge before whom the writ petition was listed for hearing ordered that the case be listed before a Division Bench for hearing. The Division Bench formulated two questions of law involved in this writ petition and ordered that it be heard by a larger Bench. The case, therefore, has been listed before this Bench for hearing.
3. The questions of law formulated by the Division Bench were :
"(1) Whether in view of Sec. 1(3) of the Bihar Tenancy Act, the provisions of Sec. 48E of the said Act will be applicable to the lands lying within a municipality constituted under the Bihar and Orissa Municipal Act, 1922. (2) Whether any other notification by the Government is required to be issued for excluding the applicability of the provisions of the Bihar Tenancy Act to the lands which lie within the municipal area under the aforesaid Sec. 1 (3) of the Act. "
4. The relevant section of the Act is Sec. 1 (3), as stood at the relevant time, read as follows: -
"It shall extend to the district of Patna, Gaya, Shahabad, Muzaffarpur, Saran, Champaran, Darbhanga, Bhagalpur, Monghyr and Purnea, except any area constituted, or deemed to have been constituted, a municipality under the provisions of Bihar and Orissa Municipal Act, 1922, or part thereof, if such area is specified in a notification issued in this behalf by the State Government. "
5. The question as to whether the area lying within the limit of municipality will automatically be excluded from operation of the Act or whether a notification excluding applicability of the Act is required to be issued was considered in various cases by learned single Judges. There was conflict of opinion. The Division Bench judgment on this point was delivered in Shrikishun Lal V/s. Harihar Sah, AIR 1949 Patna 444. It was held that a notification must be issued for excluding the area within the municipal limits from operation of the Act. The question came up for consideration again before a Full Bench in Haridayal Narain Singh V/s. Md. Shariff, AIR 1968 Patna 296. The Full Bench approved the law laid down by the Division Bench in Shrikishun Lal (supra) and held that there must be an express notification excluding the municipal area from operation of the Act. The questions formulated by the Division Bench in this case, which I have noticed above, are fully answered by the law laid down by the Full Bench in Hridya Narain Singh (supra).
6. It is not the case of any of the parties that notification has been issued excluding the area lying within the limit of Bhagalpur municipality from operation of the Act. It must, therefore, be held that the Act applies to the area within the limits of Bhagalpur municipality. The order of dismissal of application filed by the petitioner before respondent No. 1 on the ground that as the land was situate within the limit of Bhagalpur municipality, it was not maintainable cannot be sustained.
7. During the course of hearing of this case, on behalf of the petitioner it was submitted that if it was held that the Act applied to the area lying within the limits of Bhagalpur municipality, the order passed by respondent No. 1 on 24-8-1982 be set aside and the matter be remanded to respon
