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IN THE HIGH COURT OF JUDICATURE AT PATNA
PARTHA SARTHY, J.
Naresh Jha @ Gunanath Jha Son of Late Kalanath Jha – Appellant
Versus
The State of Bihar – Respondent
Civil Writ Jurisdiction Case No.10663 of 2018
Decided on : 29-03-2023
Bataidari - Land Dispute - Bihar Tenancy Act, Section 48E - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of section 48E of the Bihar Tenancy Act, which provides for the prevention of threatened ejectment of under raiyat and restoration to possession of under raiyat unlawfully ejected. The court highlighted the detailed procedure for appointment of a Board by the Collector, the requirement for the Board to make an attempt to bring about an amicable settlement between the parties, and the steps to be taken if the settlement is not achieved. The court also referenced the judgment of Dhanji Singh vs. State of Bihar & Ors. (1979 PLJR 247) which emphasized the mandatory nature of referring the dispute to the Board once a proceeding is initiated under section 48E(1) of the Act.
Fact of the Case:
The petitioner borrowed money and orally mortgaged land with the respondent. Upon retirement, the petitioner requested the land back, but the respondent refused. A dispute arose, leading to the filing of Bataidari Case no. 1 of 2013-14. The Deputy Collector Land Reforms allowed the case, and the appeal to the Collector was dismissed. The petitioner then moved the Bihar Land Tribunal, which also dismissed the case. The petitioner challenged the orders on the ground of non-compliance with the provisions of section 48E of the Bihar Tenancy Act.
Finding of the Court:
The court found that the orders impugned were illegal, not sustainable, and fit to be set aside due to the failure to follow the mandatory provisions of section 48E of the Bihar Tenancy Act. The court set aside the orders and directed the respondent authorities to proceed afresh in accordance with the provisions of section 48E of the Act.
Issues: The issues involved the non-compliance with the provisions of section 48E of the Bihar Tenancy Act, specifically the failure to constitute a Board by the Collector and refer the dispute to the Board for promoting settlement between the parties.
Ratio Decidendi: The court held that once a proceeding is initiated under section 48E(1) of the Bihar Tenancy Act, the dispute has to be referred to the Board to be constituted by the Collector, as mandated by section 48E(3) of the Act. The court emphasized the mandatory nature of this requirement and set aside the orders due to the failure to comply with it.
Final Decision: The court allowed the application, set aside the impugned orders, and directed the respondent authorities to proceed afresh in accordance with the provisions of section 48E of the Bihar Tenancy Act.
JUDGMENT :
1. Heard Mr. P.N. Shahi, learned Senior counsel for the petitioner, Ms. Nutan Sahay, learned A.C. to A.A.G-12 for the State and Shri Nagendra Kumar Singh, learned counsel for the respondent no. 6
2. The petitioner has filed the instant application for the following reliefs:
ii. For issuance of appropriate writ (s)/rule(s)/direction (s) in the nature of mandamus dated for quashing of Order 06.05.2015, passed by the Deputy Collector Land Reform, Nirmali (Respondent No. 4) in Bataidari Case No. 01 of 2013-14.
iii. For issuance of appropriate writ (s)/rule (s)/direction (s) in the nature of mandamus for quashing of the order dated 03.07.2016, passed by the Collector, Supaul in Batai Appeal Case No. 01 of 2015.
iv. For issuance of appropriate direction to the concerned respondents for removal of unauthorized possession of respondent no. 6, upon Land of the petitioner.
AND/OR
V. For which entitled grant the of other relief petitioner on the may facts (s) to found and to, circumstances of the case.”
3. The subject matter of instant application is a total area of 1 bigha 16 kathas of land in Mauza Kamrail. 1 bigha land is situated under Mauza Kamrail, Khata no. 28 (old) and 84 (new), khesra no. 1859 (old) and 2848 (new), Thana no. 129 and Tauzi no.434 while 16 kathas of land is situated under Mauza Kamrail, khata no. 38, khesra no. 1856(old) and 2863 (new).
4. The case of the petitioner is that being in urgent need of money for the treatment of his wife, he borrowed a sum of Rs. 90,000/-from the respondent no.6 and in lieu thereof orally mortgaged 1 bigha 16 kathas of land with respondent no.6. It was agreed upon that respondent no.6 will cultivate the land and will keep all the food grains grown on the said land with himself as interest on the loan amount.
5. It is the case of the petitioner that on his retirement, the petitioner decided to settle in his village and planned to do cultivation work on his land. As such, he requested the respondent no.6 to return his 1 bigha 16 kathas of land after receiving the loan amount of Rs. 90,000/-, however, the respondent no.6 refused to handover possession. A panchayati was held and it was agreed upon that the respondent no.6 will handover physical possession of the land to the petitioner in lieu of Rs.1,13,000/-. Accordingly, the petitioner paid the said amount on 27.4.2013. On the same day a panchnama was prepared on which both the petitioner and respondent no.6 put their signatures.
6. It is the case of the petitioner that the respondent no.6 having the intention to grab the petitioner’s land by hook or crook, fabricated a false story of bataidari and filed a Bataidari Case no. 1 of 2013-14 against the petitioner on 30.4.2013 under section 48E of the Bihar Tenancy Act (hereinafter referred to as the ‘B.T. Act’) before the Deputy Collector Land Reforms, Nirmali, Supaul (‘D.C.L.R.’ in short).
7. By order dated 6.5.2015 (Annexure-P/9) passed in Bataidari Case no. 1 of 2013-14 the D.C.L.R. allowed the Bataidari case.
8. Being aggrieved by the order of the D.C.L.R. allowing the Bataidari case, the petitioner preferred Bataidari Appeal Case no. 1 of 2015 before the Collector, Supaul (‘Collector’ in short). By order dated 3.7.2016 (Annexure-10) the Collector was pleased to dismiss the appeal.
9. Against the order dated 3.7.2016 of the Collector dismissing the appeal, the petitioner moved the Bihar Land Tribunal, Patna in B.L.T. Case no. 807 of 2016. The learned Tribunal by its order dated 10.3.2007 was pleased to dismiss the case preferred by the petitioner and as such, the instant writ application for the prayer made, as quoted herein above.
10. A counter affidavit has been filed on behalf of the State
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