TARINI MANDAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application has been filed by the petitioner's for quashing the order dated 16.11.1999 passed by the Addl. Collector, Purnea, in Revision Appeal No. 24 of 1997.98. By this order respondent No. 2 has allowed the appeal and has also quashed the order dated 4.6.1997 passed by the Dy. Collector Land Reforms at Dhamdaha, in terms of the provisions of Sub-section (10) of Section 48E of the Bihar Tenancy Act Dy. Collector Land Reforms at Dhamdaha passed in terms of the provision of Sub-section 10 of Section 48E of the Bihar Tenancy Act has been quashed.

(2.) This order has been challenged by the petitioners on three grounds (1) that the order passed by the Addl. Collector, Purnea is without jurisdiction as under the provision of Section 48E of the Bihar Tenancy Act the appeal lies only against the orders passed under Sub-sections 7 & 8 of Section 48 of the Bihar Tenancy Act. No appeal is maintainable against the order passed under Sub-section 10 of Section 48E of the Bihar Tenancy Act (2) The impugned order has been passed by the Addl. Collector relying on the decision in the case of flam Narain Singh v. State of Bihar, (1973) BLJR 662 which has no binding effect as it is a judgment in sub-silentio. (3) The Addl. Collector is not the appellate authority under Section 48F of the Bihar Tenancy Act as only the Collector of the District is authorised to exercise appellate jurisdiction under Section 48F of the Bihar Tenancy Act, the order impugned is without jurisdiction as it has been passed by the Addl. Collector.

(3.) For deciding the points which has been raised by the petitioners it is necessary that the facts of the case should be mentioned in the order. Petitioner claims to be bataidar of the land situated at village Koeli Simra, P.S. Rupouli in the district of Pumea appertaining to plot Nos. 3392 and 3393 and 1654 measuring total area of 4.18 acres. The land was originally belonged to one Devi Prasad Choudhary. @ Devi Lal Choudhary and Ram Sahay Choudhary under whom the father of the petitioner was a under raiyat. On the death of his father the petitioner continued to cultivate the land as an under raiyat. Respondent No. 3 Shri Ganesh Choudhary is the grand son of original landholder who was allotted this land in family partition. Respondent No. 3 wanted to sell the land and also made an attempt to dispossess the petitioner from cultivating possession of the land. Being apprehensive of threatened ejectment the petitioner filed an application under Section 48E of the Bihar Tenancy Act which was numbered as case No. 25 of 1986-87. On initiation of proceeding under Sub-section (1) of Section 48E of the Bihar Tenancy Act, a Board was constituted and the matter was referred to the Board. The Board failed to record its finding and transmit the record within the statutory period of six months to the Collector under the Act. As such, the matter was withdrawn from the Board in terms of the provision of Sub-section (10) of Section 48E of the Bihar Tenancy Act. The D.C.L.R. made efforts for amicable settlement and on failure of amicable settlement called upon the parties to adduce evidence. The petitioner and respondent No. 3 both examined their witnesses. A local enquiry was also made by the D.C.L.R. and subsequently by order dated 4.6.1997 claim of the petitioners as bataidar was allowed. Against this order respondent No. 3 preferred an appeal vide Revenue Appeal No. 24 of 1997, 98. The maintainability of this appeal was challenged by the petitioners on the ground that the appeal under Section 48E of the Bihar Tenancy Act lies only against the order passed under Sub-section (7) or Sub-section (8) of the Bihar Tenancy Act. However, relying upon the decision in the case of Ram Narain Singh and Anr. v. State of Bihar and Ors., 1973 BLJR 662, the appeal was held maintainable. The Addl. Collector did not even discussed the case on merit and by order dated 16.11.1999 the appeal was allowed. This, order has been challenged by the petitioner in the present writ application.