LAKSHMI PRASAD BHAGAT Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this application under Articles 226 and 227 of the Constitution the petitioners have prayed for quashing the order of the Land Reforms Deputy Collector Saharsa, dated the 4th of Feb. 1977, declaring respondent No. 4 to be a bataidar in respect of the land in dispute, a copy of which has been filed as Annex. 1.

(2.) Petitioner No. 1 is the recorded raiyat of land bearing plot No. 6756, khata No. 392 having an area of 1 bigha, 5 kathas and 17 dhurs situate in village Chandaur Tola Hanuman Nagar, in the district of Saharsa, petititioner No. 2 being his brother's son. The case of the petitioners is that petitioner No. 1 gave 2 kathas of land to Mohan Hazra (respondent No. 4) for constructing his house and residing in the same and the rest of the land remained in the cultivating possession of the petitioners. Taking advantage of his house being on a portion of the plot, respondent No. 4 on 15-6-1956 filed an application under Section 48-E of the Bihar Tenancy Act (hereinafter referred to as 'the Act') in respect of the entire plot a copy of which has been filed as Annexure 2. The said application was forwarded to the Circle Officer, Sour Bazar, and the Circle Officer after notice to the parties constituted a Board and the Board found that respondent No. 4 was not the bataidar of the land. Disagreeing with the finding of the Board, the Circle Officer came to the conclusion that respondent No. 4 was the bataidar. On appeal by the petitioners, the order of the Circle Officer was set aside by the Sub-Divisional Officer, Saharsa, by his order dated 17-12-1957 (Annex. 3). The petitioners' grievance is that, notwithstanding the aforesaid order, respondent No. 4 filed a second petition on 6-12-1976 before respondent No. 3 (Annexure 4) on which respondent No. 3 initiated a proceeding under Section 48-E of the Act and without constituting any Board as required under Sub-section (6) of Section 48-E of the Act he held an enquiry himself and came to the conclusion that respondent No. 4 was a bataidar of the land in question and declared him as such by his order dated 4-2-1977 (impugned Annexure 1).

(3.) The challenge of the petitioners against the impugned order is twofold. Firstly, in view of the order in the earlier proceeding (Annexure 3), no second proceeding under Section 48-E of the Act could be initiated by respondent No. 3 as the order in the previous proceeding will operate as res judicata. The second ground of attack is that respondent No. 3 the Collector under the Act, has no jurisdiction to initiate a proceeding and dispose it of without reference to the Board.