JUDGMENT
Mridula Mishra, J.
1. Heard learned counsel for the petitioner and the counsel appearing on behalf of respondent No. 9.
2. This application has been filed for quashing the order dated 1.3.2000/ 6.3.2000 passed by the Deputy Collector, Land Reforms, Gogri in Bataidari Case No. 1A/97 whereby the respondent No. 3 has declared respondent No. 9 as the Bataidar of land appertaining to Khata No. 28 measuring an area of 5 bhiga situated in village Chak Prayag in the district of Khagaria. Petitioner has also prayed for quashing the order dated 26.5.1999, passed by the Collector, Khagaria in Bataidari Appeal No. 10 of 1998-99 whereby he has remitted the case back to the D.C.L.R. for reconsideration.
3. The dispute relates to the land appertaining to Khata No. 28 measuring 5 bigha. This land initially belonged to one Ram Lal Singh and after his death his sons who are respondent No. 2nd set in the writ application came in possession of the land. Claim of the petitioner is that he was inducted as Bataidar over this land by the land holder and he continued in cultivating possession of the land and used to share crops with the land holders. Subsequently at the instance of land holder respondent No. 9 started disturbing the cultivating possession of the petitioner which gave rise to a proceeding under Section 144, CPC. In this proceedings under Section 144 Cr PC police report was submitted indicating that the petitioner is in cultivating possession of the land and the standing crops were grown by him. Apprehending his ejectment from the lands in question the petitioner filed an application under Section 48-E of the Bihar Tenancy Act (hereinafter referred to as the Act) before the D.C.L.R. Gogri, which was registered as Bataidari Case No. 1A/97. The D.C.L.R. being satisfied that there existing prima facie relationship of land lord and tenant between the petitioner and the land holders, constituted a Board of reconciliation and the Sarpanch of the Gram Panchayat was appointed as Chairman of the Board. In conciliation proceeding notice was issued to the land order but inspite of the notice the land holder did not appear. Accordingly the Circle Officer nominated panch on behalf of land holder. The conciliation Board submitted his report before the D.C.L.R. Gogri stating that the petitioner viz. Bataidar of Khata No. 28, his claim of Bataidari is genuine and he should be declared as Bataidar of the land in question. In consonance of the report of the conciliation Board the D.C.L.R. Gogri by order dated 24.6.1996 declared the petitioner as Bataidar of the land.
4. At the same time when the petitioner has filed his application under Section 48-E of the Act, the respondent No. 9 has also filed a separate application under Section 48-E of the Act and on the basis of his application Bataidar Case No. 5 of 1997 was registered. This case also sent before the Circle Officer, but neither any report of conciliation Board was submitted nor any effort was made for amicable settlement of the dispute. This matter remained pending as it is subsequent to the order passed in Bataidar Case No. 1-A of 1997 declaring the petitioner as Bataidar of the land, the respondent No. 9 filed an appeal before the Collector against the order dated 24.6.1998. This appeal was numbered as Bataidari Appeal No. 10 of 1998. The Collector without looking into the Objection filed by the petitioner in appeal that the appeal itself was not maintainable at the instance of any 3rd party who was not a party in Bataidar Case, allowed the appeal, quashed the order dated 24.6.1998 and remitted the case back to the D.C.L.R. for fresh consideration specially in view of the affidavit filed by the land holder accepting the respondent No. 9 as Bataidar. When the matter was received by the D.C.L.R. after remand of the case he without following the procedure as provided under Section 48-E of the Act declared the respondent No. 9 as Bataidar of the land simply on the direction of the Collector as well as on the basis of the affidavit filed by the land holder.
5. The petitioner has challenged the order on two grounds. Firstly it has been stated that the order was passed in favour of the petitioner by the D.C.L.R. on the basis of recommendation of a duly constituted conciliation Board, in that situation when the land holder did not prefer any appeal against that order, the appeal preferred by any stranger or 3rd party should not have been entertained by the appellate authority. The order passed by the appellate authority was illegal, arbitrary and without jurisdiction and any order which has been passed subsequent to that order is also illegal and fit to be quashed. Secondly it as been submitted that when the case was remitted to the D.C.L.R. Gogri and he entertained this matter in that case he should have proceeded in accordance with law. The D.C.L.R. should have constituted a Board of conciliation and only after observing all the provisions under Section 48E of the Act, he should have declared Bataidari right over the disputed land. Since the order was passed simply relying on the direction of the Collector, as well as the affidavit filed by the land holder, the order is illegal and without jurisdiction and the same is fit to be quashed.
6. So far the first ground is concerned now it is not available to the petitioner as he did not prefer any application before any superior forum against the order passed by the Collector. If the order was illegal and without jurisdiction it should have been challenged by the petitioner at that point of time, but instead of challenging the order submitted himself before the forum where the case was remitted and now the petitioner cannot raise any objection. So far the 2nd ground is concerned, t find sufficient force in it. Once the matter was remitted to the D.C.L.R. he should have proceeded with the matter in accordance with law and should have observed the procedure under different sub-section of Section 48-E of the Act. He should have constituted a Board and the Board should have made efforts for amicable settlement in between the parties. The D.C.L.R. either should have passed order under Section 7 of Sub-section (8) of the 48-E of the B.T. Act. Since no such procedure was adopted by the D.C.L.R. the impugned order dated 1.3.2000/6.3.2000 is patently illegal without jurisdiction and the same is fit to be quashed. The D.C.L.R. has committed an error as he was not competent to decide who out of two persons was a Bataidar of a particular piece of land. Jurisdiction under Section 48-E of the B.T. Act can be exercised only in case of apprehension of ejectment by the Bataidar. In case of respondent No. 9, this essential ingredient is completely missing, considering the affidavit filed by the land holder. The D.C.L.R. has amalgamated Bataidari Case No. 1A/97 and Bataidari Case No. 5 of 1998-99, which were by two different proceedings. Both the cases should have been decided and considered separately on its own merit. Instead of that both the cases have been amalgamated. This is also one of the illegality with which the impugned order suffers.
7. In the facts and circumstances of the case, this application is allowed. Order passed by D.C.L.R. Gogri dated 1.3.2000/6.5.2000 is quashed. However, the matter is remitted back to the D.C.L.R. who will separately decide both the cases i.e. Case No. 1 A/97 and Bataidari Case No. 5 of 1997, only on being satisfied that there is apprehension of ejectment at the instance of the land holder. The D.C.L.R. will proceed with the matters and decide in accordance with law. This application is accordingly allowed.