IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3662 of 2003 MD. GYAS, S/o late Md. Yunus, R/o Village – Salehpur, P.S. -Falka, Distt. Katihar ……………………. Petitioner Versus 1. THE STATE OF BIHAR, 2. Dy. Collector Land Reforms, Katihar …. Respondent 1st Set, 3. Nazibuddin Ahmad, S/o late Rukumiddin Ahmad, 4. Mostt. Raufa Khatoon, Wife of late Rukumuddin Ahmad, 5. Sababuddin, 6. Babuddin, 7. Badiuddin @ Pappu, 8. Ashaleyuddin, 9. Faluddin, All (respondent nos. 5 to 9) sons of late Ziayuddin Ahmad, and 10. Mostt. Mustari Khatoon, Wife of late Ziayuddin Ahmad, All (respondent nos. 3 to 10) resident of Village – Salehpur, P.S. – Falka, Distt. Katihar …………………………….....….. Respondents 2nd Set. ----------- For the Petitioner:- Mr. Ajay Kumar Thakur and Mr. Bimal Kumar, Advocates. For the State:- Mr. Binod Kumar, A.C. to S.C. IV. ----------- 7. 30.07.2009. On 16.5.2003 notices were issued by this Court upon Respondents No. 3 to 10 indicating therein that this case is to be disposed of at the stage of admission itself. However, the aforesaid respondents have not appeared despite service of notices upon them. Now, I proceed to dispose of the matter. Heard learned counsel for the petitioner and learned counsel appearing for the State. - 2 - The petitioner is aggrieved by the order dated 16.1.2003, whereby the Deputy Collector Land Reforms has recalled his earlier order dated 14.1.2003, as well as the order dated 28.1.2003 whereby he has rejected the petition under Section 48E of the Bihar Tenancy Act, 1885 (hereinafter referred to as `the Act’) holding that he is not prima facie, satisfied that the petitioner had a valid case for initiation of proceedings under the aforesaid portion of the Act (both impugned orders contained in Annexure-1). Learned counsel for the petitioner at the time of hearing confined himself only to the short question as to whether the Collector under the Act has any power to recall his earlier order whereby he, on being prima facie satisfied, had referred the matter to the Conciliation Board for recording a finding upon the issue in accordance with the procedure laid down in different sub-sections of Section 48E of the Act. The first submission on behalf of the petitioner is that it is settled principle of law that for the purpose of initiation of a case under Section 48E of the Act, the Collector is not required to issue notice upon the opposite - 3 - parties. However, if the landlord appears at his own, he may be heard even at that time and his contentions may be taken into consideration by the Collector for satisfying himself as to whether a prima facie case exists so that to initiate the proceedings under the Act. In this case on 17.10.2002, the Deputy Collector Land Reforms, Katihar (the Collector under the Act) had issued notice upon the opposite parties on point of admission of the case. By order dated 13.11.2002 it appears that the opposite parties refused to accept the notice. Thereafter, the Collector under the Act proceeded further. However, on 10.12.2002 the opposite parties appeared and filed a time petition. On two subsequent dates, the opposite parties again took time and ultimately on 31.12.2002 they filed their objections. On 14.1.2003 it appears that again a time petition was filed by the opposite parties but the matter was heard by the Deputy Collector Land Reforms concerned as the objection filed on behalf of the opposite parties was already on record and he referred the matter to the Conciliation Board to be constituted as per the order dated 14.1.2003. Subsequently on 16.1.2003 the opposite parties - 4 - appeared and requested that the earlier order be recalled as the learned counsel was not available on that date and, therefore, he could not appear and the order was recalled and a final order was passed on 28.1.2003 dismissing the application filed by the petitioner on the ground that the Collector did not have the prima facie satisfaction that it was a fit case to be proceeded with. Learned counsel for the petitioner submits that once the matter was referred to the Conciliation Board, the Collector did not have any authority under the Act to recall the same and dismiss the application on the ground that he was not, prima facie, satisfied that a bonafide dispute existed between the parties. The fact that earlier he perused the records and after hearing the petitioner had referred the matter to the “Board”, showed his prima facie satisfaction regarding a bonafide dispute. Learned counsel for the petitioner placed reliance upon a Division Bench decision of this Court in Lakshmi Thakur @ Laxmi Narayan Thakur Vs. The State of Bihar & Ors., (1977 PLJR 50). Though this decision is in the context of an order passed under Section 48C of the Act, - 5 - however, it has been submitted by the learned counsel that the same principle will apply in the present case also. In the above case the Division Bench of this Court has held that once the Collector has given a direction calling for a report from the Anchal Adhikari concerned, he was not empowered to recall that order later on. Learned counsel for the State submits that since the opposite parties were not heard on the earlier date, the matter was recalled by the Deputy Collector Land Reforms. However, learned counsel failed to show any provision from where the Collector under the Act derives power to recall his earlier order referring the matter to the “Board”. In my considered opinion in the provision under Section 48E of the Act, the procedures to be adopted and followed are well laid down. It has been held time without number that those procedures have to be followed in totality and they are mandatory in nature. Once the Collector refers the matter to the Conciliation Board then the Board has to record its finding with regard to the dispute after giving opportunity of hearing to the parties. On submission of such finding, the Collector again decides the mater either - 6 - confirming the Board’s finding or even differing therefrom after recording reasons. It is also well settled that before recording any finding, the Conciliation Board has to make an effort of amicable settlement between the parties. The different provisions of Section 48E of the Act do not disclose any authority empowering the Collector under the Act to recall his earlier order once he is, prima facie, satisfied with regard to existence of bonafide lis between the parties and refers the matter to the Conciliation Board. Even if the matter is referred to the Conciliation Board, that cannot be prejudicial to the landlord for the reason that the same is to be followed by the procedure of amicable settlement or recording of finding by the Conciliation Board after hearing both the parties. It would be apt to refer a passage from the Full Bench decision of this Court rendered in Dhanji Singh Vs. State of Bihar & Ors., (AIR 1979 PATNA 259), which is quoted as under:- “10. Learned counsel appearing for the petitioner, while challenging the impugned order, submitted that even if it is held that the order for initiating a proceeding under S. 48-E of the Act, by the Collector, is of a quasi judicial nature, still for that he is not required to hear the landlord. In my view, - 7 - this contention has to be accepted. Before passing an order the other side is to be heard only under two situations, (i) if it is required by the statute itself, or (ii) even in absence of an express provision, it is required under the principles of natural justice. So far as the present case is concerned, sub-sec. (1) does not say that before initiation of the proceeding the landlord must be heard. This cannot be read even on the principles of natural justice because by merely initiating a proceeding no final order is passed affecting any of the rights of the landlord.” In view of the above I am constrained to hold that the order dated 16.1.2003, recalling the order dated 14.1.2003 has to go and, thus, the same is quashed. Once the order of recall is quashed, the subsequent order dated 28.01.2003, dismissing the petition filed under Section 48E of the Act also has to go as the matter was already referred by the Collector to the Conciliation Board. Thus, I set aside the order dated 28.1.2003 also and the matter is remitted back to be considered by the Conciliation Board. It is made clear that this Court has not formed any opinion with regard to merit of the respective cases of the parties and, as such, the Conciliation Board as well as the - 8 - authority under the Act is free to determine it in accordance with law. Accordingly, the writ application is allowed. However, there shall be no order as to costs. dk ( Dr. Ravi Ranjan, J. )