Nagendra Rai, J.

The petitioner has filed the present writ petitioner for setting aside the order dated 27.1.84 passed by the Collector, Katihar contained in annexure 6 in the Case no.440 of 1982-83 by which he has allowed the appeal of respondent no. 3 against the order dated 3.2.83 passed by the D.C.L.R. Katihar exercising the power of the Collector under the provision of 48E of the Bihar Tenancy Act (hereinafter to be referred to as the Act) rejecting the claim of respondents no. 3 as under raiyat.

2. It appears that respondent no. 3 filed a application before the D.C.L.R. Katihar under section 48E of the Act claiming bataidari right over 2.44 acres of land of R.S. Khata no. 120, Plot no. 6 and prayed for restraining the petitioner from disposing him. The D.C.L.R. noticed the petitioner and the petitioner appeared and filed orders passed in Consolidation proceeding in support of the fact that the claim of under raiyat of respondent no. 3 Zahiruddin, has been considered and rejected by the Consolidation court. Taking into consideration the aforesaid fact the D.C.L.R. rejected the claim of respondent no. 3 by order dated 3.2.83 which order has been set aside in appeal as stated above and the matter has been remanded for fresh decision after constitution the Board.

3. Learned counsel for the petitioner contended two points firstly the appeal itself was not maintainable as no appeal lies against the order dismissing the application under section 48E of the Act under the provisions of Section 48 F of the Act and Secondly, if it is assumed that the appeal was maintainable the ground givent for setting aside the order of the Collector under the Act was not tenable in low. In my view the submissions are well founded. No doubt at the stage of initiation of the proceeding under section 48E of the Act the Collector under the Act has to be satisfied on the assertion and the materials produced by the applicant that the ground exists for initiation of the proceeding. At that stage he cannot held a parallel enquiry or ministerial after notice but that does not mien that the Collector under the Act will initiate the proceeding under the Section 48E of the Act in all the cases even dispute is malafide. A Special Bench of this Court in the case of Dhanji Singh Vs. The State of Bihar and other reported in 1979 BB79 BBCJ 521 has held that if the applicant Satisfies the Collector on the basis of the materials produced before him or the Collector is satisfied on the information received by him then without waiting for the landlord he can initiate the proceeding of course in some cases where the claim on behalf of the under raiyat has been made by suppressing the material facts like an order under Section 145 of the Code of Criminal procedure between the same parties holding the claim of the landlord and negativing the claim of possession made by the under tenant or a recent delivery of possession having been effected in favour of the landlord over the lands in question then the landlord may being to the notice of the Collector that the claim of the applicant lacks bonafide. But the landlord cannot be permitted at that stage to convert the initiation of the proceeding ministerial or a parallel enquiry. He has to writ till the matter is placed before the Board. It has been held in that case that in appropriate case the landlord may appear and show to the authorities at the stage of initiation of the proceeding also that the proceeding should not be initiated as it is malafide. In this case the Consolidation authority has negatived the claim of bataidar respondent no. 3 and the document has been produced by the petitioner before the D.C.L.R. who after considering the same found that the claim of bataidar was not bonafide and accordingly dismissed the application but the Collector has set aside the said order in appeal on the ground that D.C.L.R. could not decide the matter finally at the Stage of initiation of the proceeding and he was to refe