{"id":141598,"date":"1978-05-09T00:00:00","date_gmt":"1978-05-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lakshmi-prasad-bhagat-and-anr-vs-state-of-bihar-and-ors-on-9-may-1978"},"modified":"2014-11-27T13:21:05","modified_gmt":"2014-11-27T07:51:05","slug":"lakshmi-prasad-bhagat-and-anr-vs-state-of-bihar-and-ors-on-9-may-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lakshmi-prasad-bhagat-and-anr-vs-state-of-bihar-and-ors-on-9-may-1978","title":{"rendered":"Lakshmi Prasad Bhagat And Anr. vs State Of Bihar And Ors. on 9 May, 1978"},"content":{"rendered":"
Patna High Court<\/div>\n
Lakshmi Prasad Bhagat And Anr. vs State Of Bihar And Ors. on 9 May, 1978<\/div>\n
Equivalent citations: AIR 1979 Pat 169<\/div>\n
Bench: K Singh, P Sahay<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 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.\n<\/p>\n
 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).\n<\/p>\n
 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.\n<\/p>\n
 4.   There is no substance in  the  first contention   of learned  counsel inasmuch as from the order in the earlier proceeding   dated   17-12-1957,   which   is     Annexure 3 to the writ petition,    it appears that the application under Section 48-E of the Act   was   held   to   be   not     maintainable. The provisions of Section  48-E   (1)  of the Act, as existed in 1957,  required that an application   under   that  section    could    be maintainable only when ‘an under-raiyat is or   has   been   ejected   by his   landlord from his tenancy or any portion thereof at any time after the 1st February, 1953, in contravention of Section 89″ and not in the case   of   even   threatened     dispossession as is provided under the present Section 48-E which    has   been    brought    in    by Section    3    of    Bihar    Act  VIII  of    1970. The     application,     therefore,     not    being      maintainable      in        absence      of the necessary  averment     regarding  dispossession,  the order in the earlier proceeding (Annexure 3) cannot be held to be res judicata as nothing    was decided in that proceeding except that the application  was  not maintainable.\n<\/p>\n
 5. There is, however, substance in the second contention of Mr. Singh that when an application under Section 48-E has been entertained and a proceeding has been initiated under Sub-section (1) of Section 48-E, the Collector under the Act is bound to refer the matter to the Board and not to decide the dispute himself. Sub-section (3) of Section 48-E, which is relevant, may be usefully reproduced:\n<\/p>\n
  “When a proceeding is initiated under Sub-section (1) the Collector may refer the matter (hereinafter referred to as ‘dispute’) to a Board to be appointed by him, for promoting the settlement of the dispute between the under-raiyat and the landlord.”\n<\/p>\n
Sub-sections (4) and (5) deal with the constitution of the Board and filling of vacancies for the office of Chairman or Panchas in the Board. Sub-section (6) lays down the procedure to be followed by the Chairman and reads as follows:–\n<\/p>\n
 “The Chairman of the Board to which a dispute is referred, shall give written notice to the under-raiyat and his landlord in the prescribed manner and the Board shall make endeavour to bring about an amicable settlement of the dispute and when an amicable settlement of the dispute is brought about, the Board shall forthwith submit a report containing the terms on which settlement had been brought about, to the Collector, who may dispose of the proceeding in accordance with the terms of the report:\n<\/p>\n
 Provided that failure on the part of any member of the Board to sign the report shall not affect the validity of the same.”\n<\/p>\n
 Sub-section  (7), which is also relevant, may usefully be reproduced:\n<\/p>\n
 “Where a Board does not succeed in bringing about an amicable settlement of the dispute, it shall make enquiry into the same, receive such evidence as it considers necessary, record its findings on the disputes and transmit the entire record of the proceeding forthwith to the Collector who may dispose of the proceeding in accordance with the terms of the findings. Provided that failure on the part of any member of the Board to sign the finding shall not affect the validity of that finding:\n<\/p>\n
 Provided further that if any member does not want to sign the findings of the Board he will submit his disagreement on the findings in writing failing which the Chairman will submit his notes on the subject.”\n<\/p>\n
 If the Collector disagrees with the find-Ings of the Board then he has to proceed under Sub-section (8) of Section 48-E and after notice to the parties he can make such enquiry as he thinks necessary and pass any order as mentioned in the three sub-clauses of Sub-section (8). Under Sub-sec. (9) the Collector shall state the grounds on which the order is made and specify the period not exceeding six months within which the order has to be carried out. Sub-section (10), which is relevant, may usefully be reproduced:\n<\/p>\n
  “If the Board fails to record its find-bigs or transmit the records as required under Sub-section (7), within a period of six<\/p>\n
months from the date of its appointment, the Collector may withdraw the proceeding from the Board and decide the dispute himself according to the provisions of this section.”\n<\/p>\n
 It is thus manifest that the Collector gets power to enquire into the matter firstly in case of disagreement under Sub-section (8) and secondly where the Board fails to record its findings or transmit the records within six months from the date of its appointment and not otherwise.\n<\/p>\n
 6. Mr. Parmanand Saran Sinha learned counsel appearing on behalf of respondent No. 4, however, has urged that as under Sub-section (3) quoted above, the Collector may refer the matter to a Board, under Sub-section (8) he has power to differ with the findings of the Board and enquire into the matter and under Sub-section (10) he has also power to decide the dispute himself in case the Board does not submit its findings within six months from the date of its appointment, it must be inferred that the Collector has power in appropriate cases after initiation of a proceeding under Section 48-E (1) of the Act to decide the dispute himself and the expression ‘may’ does not mean ‘must’. Aid is also sought from Sub-sec, (12) of Section 48-E, which lays down that:\n<\/p>\n
  “The Board shall have the same power regarding the summoning and attend-ence of witnesses and compelling the production of document as a Civil Court has under the Civil P. C,, 1908 (V of 1908) and the Collector shall have general control and superintendence over the Board.”\n<\/p>\n
 This submission of learned counsel is without any substance. Whether the expression ‘May’ used in Sub-section (3) is obligatory or mandatory has been fully examined in the case of Ram Narain Singh v. State of Bihar (AIR 1973 Pat 275) and it has been held that the expression ‘may’ means ‘must’. It was observed in that decision as follows (at p. 280):\n<\/p>\n
  “Thus, the rule laid down by the Lord Chancellor (Earl Cairns) in Frederic Guilder Julius’s case (1880) 5 AC 214 is applicable to the case before us. The power conferred by this section is coupled with the duty of the Collector, the person to whom it is given to exercise it. It has, therefore, to be construed as imperative. Whenever the Collector comes to know of the existence of any<\/p>\n
of the three conditions, either suo motu or on an application of an under-raiyat, he is duty bound to initiate a proceeding.”\n<\/p>\n
 7.    It is thus manifest that    the    ex-pression   ‘may   refer the matter (herein-after referred  to     as     ‘dispute’)     to    a Board’   occurring  in     Sub-section  (3)     of Section   48-E  of the  Bihar Tenancy   Act means  that  if  the  Collector,   under    the Act  on   being  satisfied   about   the   existence  of any of the three  conditions,   initiates a proceeding, he must    refer    the dispute  to  a Board  for promoting    the settlement   of   the dispute between    the under-raiyat and the landlord.  There is, therefore, no escape from the conclusion that once the proceeding is initiated, the Collector under the Act, has no jurisdiction  to decide  the matter  himself,  without constituting  a Board in the first instance, and he is’ bound to constitute    a Board for   promoting settlement   of   the dispute.   Learned   Advocate General,  appearing on behalf of the State, has also conceded   that this is the correct    legal position. The fact that the Collector under the Act can, in certain circumstances, interfere into the  matter,   as  urged    by learned   counsel  appearing   on behalf of the  contesting   respondent,  cannot   override the mandatory requirement of Sub-sec.  (3),  aforesaid.   In  other words,    the! fact  that the Collector,     in appropriate cases, may not  accept the    findings    of the Board,   and may  make  such enquiries,  as  he  may think fit,  and pass any of the three orders, as contemplated under Sub-section (8),  or the fact that,    if the Board fails to transmit the findings within six months from the date  of the appointment of the Board, he can decide the  proceeding  himself,   cannot override the  initial    mandatory     requirement  of Sub-section  (3). Such power cannot also be inferred from the mere  fact  that      the Collector, under Sub-section   (12) has power of   general   control  and   superintendence over the Board. The power of    general control and  superintendence in  the Collector has to be there, because it is the Collector,  who can, under    Sub-section   (5), in case the services of the Chairman or any Member of the Board  ceased to be available,  appoint any  suitable     person, in the prescribed manner, in the  absentee’s place, and has the final say in the matter  even   after the Board’s    finding. The scheme  of   the Act   being  that    in the first instance a Board has to be suitably constituted  for    promoting     settlement of the dispute between the parties, its very purpose will be defeated, if the Collector is left with the power to constitute the Board in some cases and not in others. Such a construction would make the provision discriminatory and vulnerable under Article 14 of the Constitution. That being the dominant purpose of the legislation, the submission of learned counsel for the contesting respondent that the Collector under the Act can, in appropriate cases, decide the dispute himself, is without any substance. We, therefore, hold that after initiating, a proceeding the Collector under the Act has no jurisdiction to decide the dispute himself.\n<\/p>\n
 8. We accordingly quash the order of the Land Reforms Deputy Collector, Saharsa, dated the 4th Feb., 1977, as contained in Annexure ‘1’, and remand the case to him with a direction to proceed with it in accordance with law and in the light of the observations made above. In the circumstances, we make no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Lakshmi Prasad Bhagat And Anr. vs State Of Bihar And Ors. on 9 May, 1978 Equivalent citations: AIR 1979 Pat 169 Bench: K Singh, P Sahay ORDER 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-141598","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nLakshmi Prasad Bhagat And Anr. vs State Of Bihar And Ors. on 9 May, 1978 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/lakshmi-prasad-bhagat-and-anr-vs-state-of-bihar-and-ors-on-9-may-1978\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lakshmi Prasad Bhagat And Anr. vs State Of Bihar And Ors. on 9 May, 1978 - 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