MADAN BARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this application under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the issue of an appropriate writ in the nature of certiorari and mandamus for quashing the order of the Collector dated the 17th May, 1965 (Annexure 'A') and that of the Commissioner dated the 13th November, 1965 (Annexure 'B') and directing the Collector to set aside the sale-deeds and the rehan-deeds dated the 27th February, 1961 and the 27th October, 1961, respectively and restore the land covered by the deeds to the petitioner.

(2.) The facts giving rise to this application may shortly be stated as follows: The land of Khata No. 62 of village Dumraon belonged to the petitioner. Plot Nos. 2285, 2286 and 2288 appertained to this Khata. The petitioner executed sale-deeds and rehan-deeds on the 27th February, 1961 and the 27th October, 1961, respectively in favour of Sheo Kumar Rai and another without obtaining permission of the Collector in respect of a portion of the lands of the aforesaid Khata as contemplated under Section 49-G of the Bihar Tenancy Act (hereinafter referred to as the Act). The petitioner because of his backwardness and lack of proper education and intellectual development was pursuaded to execute sale-deeds and rehan-deeds at a price which was much lower than the actual price of the land. He filed an application before the Collector of Shahabad at Arrah under Section 49-K of the Act for setting aside the aforesaid sale-deeds and the rehan-deeds in favour of the Opposite party 4 and 5 and for restoring the possession of the said land to him by ejecting the transferees. Opposite party 4 and 5 resisted the application on the plea that the petitioner Madan Bari was not a Bari, but was a Paneri and as such he was not a protected tenant within the meaning of Chapter VII-A of the Act. The Collector got an enquiry made by the Block Development Officer, Dumraon, in whose jurisdiction the village was situated. The officer made intensive enquiry into the matter and submitted his report with a finding that the petitioner Madan Bari was a Bari and was a protected tenant. The Collector was of the opinion that Section 49-K of the Act was not mandatory. It gave discretion to the Collector to give relief to the transferor if he thought that the transaction was not a fair one. He was not satisfied that the alleged transaction was not a fair one. In his opinion, the petitioner Madan Bari was taking advantage of the provisions of the Act in a wrong manner. Moreover, he found that Madan Bari had subsequently on the 11th June, 1963, obtained permission to sell the land of Khata No. 62, plot Nos. 2285 and 2286 subject to his title and possession over the land. Hence, the petitioner's application was dismissed by the Collector on the 17th May, 1965 (Annexure 'A'). Against the said order of the Collector the petitioner filed an appeal before the Commissioner, Patna, who also affirmed the decision of the Collector, and dismissed the appeal by his judgment and order dated the 13th November, 1965 (Annexure 'B'). Hence, the petitioner has filed this application in this Court for the reliefs stated above.

(3.) Mr. Jaleshwar Prasad, learned Counsel for the petitioner submitted that the view taken by the Collector and the Commissioner that Section 49-K is not mandatory, but gives discretion to the Collector to exercise his discretion in cases which he considers fit, is erroneous in law. He submitted that the petitioner is a protected tenant within the meaning of the Act and he can not transfer his land without obtaining permission of the Collector under Section 49-G of the Act. Hence, any transfer by a protected tenant in contravention of the provisions of the Act is invalid in law. On the other hand, Mr. Kailash Rai, learned Counsel for the respondents contended that the provisions of Sections 49-B, 49-C, 49-G and 49-K of the Act are discriminatory. The sole basis of the enactment is caste consideration and as such they are hit by Article 14(i) of the Constitution. Secondly he urged that the provision of Section 49-K is only directory and give a discretion to the Collector to exercise his discretion in suitable cases. The Collector has rightly refused to exercise his discretion in favour of the petitioner, in the circumstances of the case. Lastly, he submitted that this Court while exercising extraordinary jurisdiction should not interfere with the orders of the Collector and the Commissioner refusing to set aside the sales and mortgages when the petitioners have already received the benefits.