An application under Section 48E of the Bihar Tenancy Act is maintainable for an under-raiyat, irrespective of whether or not they have acquired the right of occupancy as per Section 48C of the Act.

Ashish N. Trivedi, J. - Since similar facts and common questions of law are involved in all these Writ Petitions, they have been heard together and are being decided by this common judgment. For the sake of convenience, facts of C.W.J.C. No. 502 of 1986 are being considered, as agreed by learned counsel for the parties.

2. The petitioners made an application under Section 48E of the Bihar Tenancy Act (hereinafter referred to as the Act), copy of which has been annexed as Annexure-2 in which Respondent No. 4 and the deceased Respondent no. 5 had been impleaded. It was prayed by the petitioner that he was a bataidar and therefore should not be dispossessed by the landholders.

3. The Collector under the Act by the impugned order dated 2.11.1985 (Annexure-1) rejected the application holding that since the petitioner had not been cultivating the land for over 12 years and had not acquired occupancy right as envisaged under Section 48C of the Act, the Act is not applicable. In the Writ Petition it has been stated that Respondents 4 and 5 are owners of the land described in Annexure-2 and the relationship between the petitioner and the private respondents is that of under-raiyat and landlord.

4. The contentions of learned counsel for the petitioners is that provisions of Section 48C of the Act do not bar initiation of proceedings under Section 48E of the Act and the application is maintainable even if filed by under raiyat who has not acquired occupancy right as envisaged under Section 48C of the Act. Learned counsel therefore submitted that the impunged order cannot be sustained and the Collector has to decide the matter on merits.

5. Learned counsel for the private Respondents submitted that there is no infirmity in the order of the Collector and the provisions of Section 48C are an absolute bar for maintainability of petition under Section 48E of the Act.

6. Having considered the submission made by learned counsel for the parties and the material on record, I am of the view that the impunged order passed by the Collector rejecting the application under Section 48E of the Act moved by the petitioner cannot be sustained.

7. In Upendra Mandal and others Vs. State of Bihar, and others (1989 P.L.J.R. 333) it was held that an application under Section 48E is also maintainable if filed by under raiyat irrespective of the fact as to whether or not he has acquired right of occupancy. This decision of the learned Single Judge was followed by a Division Bench in C.W.J.C. No. 6147 of 1985 decided on 13.4.1992 in which it was held that the provisions contained in Section 48C of the Act have no relevance in a matter of determination of a claim of an under-raiyat in terms of Section 48E thereof.

8. In view of the aforesaid decisions, the view taken by the Collector that Section 48C of the Act is a bar to the application under Section 48E is absolutely erroneous.

9. Accordingly, the Writ Petitions are allowed and the impunged orders dated 2.11.1985 passed by the Collector are set aside. Respondent no. 2 shall restore the applications under Section 48E of the Act to their original files and proceed to decide the same on merits and in accordance with law. No order as to costs.