JUDGMENT
Barin Ghosh and Ajay Kumar Tripathi, JJ.
Page 0048
1. It appears that the name of the father of the appellants was registered in the records of right as under raiyat of the land in question and as such the appellants have right as under raiyats of the land in question after the death of their father. It appears to be the contention of the private respondents that the father of the appellants during his life time executed a registered Ladafinama and thereby declared that he was never an under raiyat of the land in question and, in fact, the same was noted in the records of right by mistake.
2. The appellants’ claimed that their father was under raiyat of the land in question and upon his demise they became under raiyat of the land in question. The appellants contended that the private respondents acquired the land from the registered raiyat by way of purchase but that purchase did not extinguish their right as under raiyat, and then sought to illegally evict the appellants from the land in question and accordingly, the appellants were constrained to approach the Collector under Sub-section 1 of Section 48E of the Bihar Tenancy Act seeking protection. It appears that the Collector upon registration of a case on the basis of such complaint of the appellants, instead of referring the matter to the Board to he constituted in terms of the provisions contained in Section 48E of the Act, himself decided the matter in favour of the appellants and while doing so observed, Page 0049 amongst others, that the Ladafinama is unreliable. It appears that an appeal preferred against the said order succeeded principally on the ground that one of the appellants is a Road Roller Driver of the Government. The writ filed against the appellate order has been dismissed principally on the some ground. An employee shall not be entitled to be an under raiyat has not been provided for in Bihar Tenancy Act and accordingly whether or not one of the appellants was or was not a government employee was not at all germane to the issue as was raised in complaint lodged by the appellants.
3. In those circumstances we are constrained to hold that the matter has not proceeded in the manner the same should have before the appellate court as well as before the writ court and accordingly, we set aside the order under appeal as veil as the appellate order.
4. At the same time we cannot retain the order passed by the Collector in the circumstances. Section 48E of the Act does not authorise the Collector to pass an order in the manner he passed the same. In terms of the directions contained in the said section of the Act, it was obligatory on the part of the Collector to constitute a Board in the manner as directed in the said section and thereupon, the Board should have made efforts for amicable settlement between the parties. Failing which, it was obligatory for the Board to enquire into the complaint, receive evidence and to record findings to be forwarded to the Collector. Only thereafter, the Collector could decide the matter either by accepting the findings or by disagreeing with the same upon recording reasons therefor after hearing the parties. This procedure having not been followed, we are constrained to set aside the order of the Collector and remit back the matter to the Collector with a direction upon him to constitute a Board and thereupon to settle the issue in the manner as indicated above.
5. It is made clear that in the event the Board is not in a position to have the dispute settled amicably between the parties, the Board shall record its finding specifically whether by the subject Ladafinama the father of the appellants totally disassociate himself with the land in Question. If the Collector is not agreeing with the finding of the Board on that issue, he must, while exercising his power under Sub-section 8 of Section 48E of the Act, give full reasons in support thereof.
6. It is hoped and expected that the Collector shall make an endeavour to comply his part of obligations in terms of the above directions within a period of six months from the date of service of a copy of this order upon him. To the extent as indicated above the appeal is allowed.
