IN THE HIGH COURT OF JUDICATURE AT PATNA 08. 07.01.2009 C.W.J.C. No. 3301 of 2001 With C.W.J.C. No. 3554 of 2001 Radhika Raman Prasad, son of late Ramchandra Prasad, resident of Village – Ghaghra, P.o. – Bakhri Bazar, P.s. – Bakhri, District – Begusarai -------------------- Petitioner (In both the cases) Versus 1. The State of Bihar through the Collector, Begusarai. 2. The Land Reforms, Deputy Collector, Bakhri, District-Begusarai. …………. (Respondents in both the cases) 3A.Malha Yadav alias Gajendra Yadav, son of late Ramchandra Yadav. 3B.Amarjit Yadav son of late Ashoka Yadav & grandson of Ramchandra Yadav. 3C.Smt. Usha Devi, daughter of late Ramchandra Yadav & wife of Nathuni Yadav. All residents of village – Mauzithan Singh, P.S. Bakhri, Subdivision – Bakhri, District – Begusarai. (Respondent in CWJC No.3301 of 2001) Ram Balihari Yadav, son of Ramswarup Yadav, resident of Village – Mauzithan Singh, P S – bakhri, Sub-division – Bakhari, District – Begusarai. (Respondent no.3 in CWJC No. 3554 of 2001) For the petitioner : M/S Basant Kumar Chaudhary, Sr. Advocate and Upendra Prasad. For the State : M/s K P Gupta, SC V, Binod Kumar and Dharmendra Kumar. For the private respondent: M/s H P Singh and Arbind Kumar. _______ In both the writ applications petitioner, the landlord, challenges the legality of the orders dated 28.12.2000 and 29.12.2000 passed in Bataidari Appeal No. 25 of 1997 and 24 of 1997 respectively which are annexure 6 to the writ applications. Submission of the learned Senior Counsel appearing on behalf of the petitioner in both the writ applications is that the Collector has no power of appeal to exercise within the scheme of section 48E of the Bihar Tenancy Act, more so against an order - 2 - passed by the DCLR rejecting the claim of bataidar which was the subject matter of the initial dispute between the petitioner and private respondent NO.3 in both the writ applications. Reliance has been placed on atleast two decisions in support of the submission and in this regard cases are of Shivanand Roy and others v. The State of Bihar & others, 1979 PLJR 475 as well as Bijendra Kr Narain Singh v. The State of Bihar, 1992 (2) PLJR 747. On reading of the two decisions, the contention of the learned counsel for the petitioner seems to be in order and the Court does prima facie come to a conclusion that the forum chosen by the private respondents of challenging the order of the DCLR was misplaced and in that view of the matter annexure-6 of both the writ applications cannot be sustained. On behalf of private respondents submission has been made that the effect of setting aside the appellate order passed by the Collector will revive an illegal order which has been passed by the DCLR, since the DCLR did not adopt the procedure laid down under section 48E of the Act, therefore, the order of the DCLR also needs to be interfered with. He relies in this regard on a Full Bench decision rendered in the case of Dhanji Singh v. The State of Bihar, AIR 1979 Patna 259. The issue which has been raised in the two writ applications is illegality of the order passed by the Collector. If right of appeal has not been provided for under the scheme of the Act it is not open to the Collector as well as private respondents to create a - 3 - forum and test the legality and otherwise of the order. If the private respondents were dissatisfied with the order of the DCLR, they could have challenged the order accordingly. But since the order passed by the Collector is totally beyond jurisdiction and beyond the ambit of the Act, therefore, merely because there could be an occasion to revive the order which is not in consonance with the law passed by the DCLR, the hands of the Court will not restrained in interfering with the illegal order. The writ applications are allowed. Annexure-6 of both the writ applications are quashed. Liberty is granted to the private respondents that if they are so advised they may choose the appropriate forum to challenge the legality of the DCLR’s order. If any objection with regard to limitation or delay is raised before the forum chosen by the private respondents, they will have liberty to seek condonation in view of the fact that writ applications were pending before this Court for adjudication on the legality of the orders impugned. rkp (Ajay Kumar Tripathi, J)