RAMAVATAR TIWARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is a "landlord's application under Articles 226 and 227 of the Constitution of India arising out of a proceeding under Sec. 48-E of the Bihar Tenancy Act (hereinafter referred to as 'the Act'). Respondent no. 3 filed an application on 5-5-1976 before the Deputy Collector Land Reforms, Bhagalpur (respondent no. 2) making an allegation against t he petitioner that he was being threatened by the petitioner with unlawful ejectment from his tenancy over which he had acquired bataidari rights. Respondent no. 2 issued notice to the petitioner for constitution of the Board as required under the scheme of the provisions contained in Sec. 48-E. On 9-6-1976 the petitioner also appeared in the proceeding and nominated his panch. The Board thus being constituted proceeded to dispose of the matter and after making inquiry it transmitted its recommendation to respondent no. 2. Respondent no. 2 then by his impugned order, dated 20-10-1976 (Annexure 4) agreed with the recommendation of the Board which was in favour of the under-raiyat. The petitioner then came to this Court. Mr. D. N. Pandey appearing in support of this application challenged the order of respondent no. 2, firstly on the ground that the order was bad in law, inasmuch as, no opportunity of hearing was given to the petitioner as required under sub-section (8) of Sec 48-E of the Act.

(2.) It is difficult to accept this contention of Mr. Panday, as such an opportunity by the Collector is to be given only when he disagrees with the report or the findings of the Board. In that case he has to record" his reasons for his such disagreement and after giving the parties concerned a reasonable opportunity of being heard, make such enquiry, if any, as he thinks necessary" and then he may pass any of the orders as are indicated in the three clauses of sub-section (8). And in the case where he (in this case respondent no. 2) finds himself in agreement with the report or the findings of the Board, then he neither has to record any reason for his agreement much less to give the parties concerned any opportunity to be heard for the obvious reason that the parties have a full opportunity of hearing before the submission of its report and the findings. Mr. Pandey, however, tried to have some support from a Bench decision of this Court in the case of Mahant Ram Narain Gir v. The State of Bihar and others (1979 BBCJ, 32). That was a case where the Deputy Collector Land Reforms had accepted the claim of the bataidars in disagreement with the findings of the Board and had declared their rights in respect of their claim. It is in this background that it was observed by the Bench that an opportunity should be given to the parties concerned. No authority was cited before me taking a contrary view. Rather the procedure indicated in sub-section (7) of Sec. 48-E to the contrary lays down that where the Board transmits the record to the Collector, who may dispose of the proceeding in accordance with the terms of the finding'. In my view, therefore, in a case where the Collector chooses to dispose of the proceeding in accordance with the terms of the findings, then he has neither to record his reasons for his decision to dispose of the proceeding in accordance with the terms of the findings nor does he require to hear the parties, as in that event sub-section (7) also should have indicated in the like manner as in sub-section (8) the intention of the legislature of recording reasons for his agreement and giving notice to the parties concerned. The first contention, therefore, must be overruled.

(3.) Mr. Pandey also faintly contended that there being no allegation by the bataidar that he had been evicted, his application was not maintainable. This argument is also entirely erroneous, as Sec. 48-E (i) contemplates application by an under-raiyat who is merely threatened with unlawful ejectment and not only by such an under-raiyat who is actually ejected.