LAKSHMI THAKUR Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ application under Articles 226 and 227 of the Constitution India the petitioner ha prayed for the issuance of an appropriate writ quashing the order sheet of the Deputy Collector Inchnrge Land Reforms (respondent No. 2) in a proceeding under Section 48E of the Bihar Tenancy Act (hereinafter to be referred to as "the Act"), as incorporated in Annexure 'G' to the petition.

(2.) The facts relevant for the disposal of this application are these. The petitioner claims to be the owner of plot No. 569, khata No 24, having an area of 2 bighas 10 kathas in Mouza Sanhauli within Khagaria municipal area bearing thana No. 268. The aforesaid plot of land is situate near the Kosi College, Khagaria. On the 5th of June, 1975, Saryug Mahto (respondent No. 4) filed a petition before the Deputy Collector Incharge Land Reforms (respondent No. 2) under Section 48E of the Act alleging that he was in occupation of 21/2 bighas of land as an under-raiyat for a period of 18 years and was cultivating the same. The further case of respondent No. 4 was that he had built and made construction over part of this land having Gohal etc. and that he had further plainted some mango trees and other trees. It was alleged in the petition filed by respondent No. 4 that the petitioner wanted to evict him forcibly from the aforesaid land. On receipt of the notice of the petition filed by respondent No. 4, the petitioner filed an objection before respondent No. 2 stating that he was the owner of khata No. 24, plot No. 569, having an area of 2 bighas 10 kathas, situate within the municipal limits of the Khagaria Municipality. The petitioner's further objection was that he bad no other land excepting the land mentioned above, which is less than 5 acres of irrigated land. The further case of the petitioner was that there was relationship of landlord and tenant between him and respondent No. 4. The house had been constructed by the petitioner for cultivating by himself. The house had been let out to respondent No. 4 as a tenant. The petitioner had installed and constructed an electric tubewell. The case put forward by respondent No. 4 in the application (Annexure 1) was denied by the petitioner. The petitioner thus objected to the initiation of a proceeding under Section 48E on two jurisdictional facts, namely, (1) that the petitioner was a tenant protected under the proviso to Section 48C of the Act and no bataidari right could be claimed by respondent No. 4 in respect of the land in question and (2) that the land allegedly falling within the municipal limits of Khagaria Municipality the provision as of the Act were not applicable to the area in question in view of Section 1(3) of the Act as there was no notification issued as envisaged under Section 1(3) by the State Government in respect of the and falling within the Khagaria Municipality. Respondent No. 2 on the aforesaid objection having been filed by the petitioner sent the matter to the Anchal Adhikari, Khagaria (respondent No. 3), for enquiring and reporting the extent of land belonging to the petitioner as also to report on the question as to whether the disputed land was situate within Khagaria Municipality. A copy of the aforesaid order passed by respondent No. 2 has been marked Annexure '3' to the writ petition. According to the petitioner's case, on the 2nd of July, 1975, he filed an affidavit also stating that the petitioner owned and possessed only 21/2 bighas of land being plot No. 569, khata No. 24 in touzi No. 4958, and that the petitioner had no other land in the world excepting this block of land. A copy of the affidavit said to have been filed by the petitioner has been marked Annexure '4' to the writ application. On the 25th of August, 1975, the Deputy Collector Incharge Land Reforms (respondent No. 2) without waiting for the report of the Auchal Adlukari and in spite of the protest on behalf of the petitioner that a Board of Settlement should not be constituted till the report of the Anchal Adhikari was received ordered that one Siyaram Mahto be nominated as a member of the Board on behalf of respondent No. 4, the alleged Bataidar. The petitioner's case is that after the affidavit (Annexure 4) was filed by him, respondent No. 4 also filed a petition before respondent No. 2 stating that the petitioner was in possession of 18 bighas 10 kathas and 4 dhurs of land. On the 10th of July, 1975, respondent No. 2 further informed the Anchal Adhikari for a report relating to the plot in question. Without waiting for the report from the Anchal Adhikari, however, the Deputy Collector Incharge Land Reforms observed that as the petitioner had not submitted his declaration according to Section 48C of the Act, there was no necessity for calling for a report from the Anchal Adhikari. The order entrusting the matter for enquiry to the Anchal Adhikari was recalled. That is the impugned order as contained in Annexure '6' of which the validity has been challenged in this writ application.

(3.) A counter-affidavit has been filed on behalf of respondent No. 4 which is not very relevant for the purpose of the point at issue in this case. It has merely been stated in the counter-affidavit that the petitioner did not fall within the protection of the proviso to Section 48C of the Act as he owned and possessed more than 18 bighas of land.