CIVIL WRIT JURISDICTION CASE No.918 OF 1991 In the matter of an application under Articles 226 and 227 of the Constitution of India. … (1) Pradeep Yadav, (2) Udho Yadav, (3) Sudho Yadav, all sons of Late Baijnath Yadav, village Damaili, PS Mirganj Khagha, District Purnea – Petitioners. Vs. (1) The State of Bihar, (2) The Addl. Collector, Purnea. (3) The Executive Magistrate, Purnea. (4) Satya Narain Choudhary, son of Late Ram Sahay Chaudhary, village Damaili, PS Mirganj, District Purnea. (5) Bhagwan Yadav, son of Late Bauku Yadav, village Damaili, PS Mirganj, Khagha, Dist. Purnea – Respondents. For the petitioners – Mr. Hare Krishna Kumar, Advocate. For the State – None. For private respondents – None. … P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S. A. Khan, J. The petitioners are the sons of Late Baijnath Yadav who had purchased the lands in dispute from one Satya Narain Chaudhary, respondent no.4. Respondent no.4 had filed a title suit against the Shikmidar, respondent no. 5 for payment of rent. It is the case of the petitioners that an auction sale took place in which the original owner i.e. respondent no.4 purchased the said land. The petitioners has filed the documents related to the proceeding of the auction sale, such as, the order of handing over possession to respondent no.4, the report of the Nazir who had reported that the possession was handed over to respondent no.4 which has been marked as Exts. ‘A’ to ‘E/1’ ,in order to show that respondent no.4 came in possession over the land after the decree in the title suit. The petitioners’ father 2 purchased the said land from respondent no.5 by a sale deed, dated 15.4.1981 and accordingly was put in possession of the said land. 2. The dispute arose when respondent no.5, the Shikmidar filed a claim under section 48E of the Bihar Tenancy Act (hereinafter referred to as ‘the Act’) claiming that he was the Bataidar of respondent no.4 since 1977, as such he had the right to remain in possession of the land and cultivate the lands in dispute. The matter was referred to the Conciliation Board. The Circle Officer was appointed as the Chairman of the Board. However, the Circle Officer did not come to any conclusion with respect to whether respondent no.5 was a Bataidar and the matter came to be heard by the Executive Magistrate Sadar, Purnea who allowed the case of respondent no. 5 by his order, dated 7.7.1990 (Annexure 2) which was challenged by the petitioners before the Additional Collector. The Additional Collector dismissed the appeal of the petitioners by order, dated 3.1.1991 (Annexure 3). 3. The petitioners have raised two issues in this case. The first point raised on behalf of the petitioners is that the Executive Magistrate ought to have followed the provisions of sub-section (10) of section 48E of the Act, when the matter was returned to him by the Chairman of the Board. The second point raised on behalf of the petitioners is that once the petitioners had claimed that they were small land holders, and were entitled to get the benefit of the provisions of section 48C of the Act, the authorities concerned i.e. Executive Magistrate ought to have held an enquiry regarding this aspect. 3 4. The case of respondent no.5, on the other hand, is that he was Shikmidar as well as the Bataidar of respondent no.4 and as such no interference is warranted in the orders impugned. It is his case that the petitioners have more than 100 bighas of land and as such they cannot claim any benefit by virtue of section 48C of the Act. It has also been stated in the counter affidavit that the right of Bataidari cannot be extinguished by a finding in the rent suit. 5. Sub-section (7) of section 48E of the Act envisages that where a Board does not succeed in bringing about an amicable settlement to the dispute, it is required that the Board should receive evidence, record its findings on the dispute and transmit the entire records to the Collector who would dispose of the proceeding in accordance with the terms of the findings of the Board. In case the Board does not record its findings, sub-section (10) of section 48E comes into play. Sub-section (10) of section 48E of the Act envisages that if the Board fails to record its findings or transmit the record as required under sub-section (7) aforesaid, within a period of six months, the Collector would have the power to call for the records from the Board and decide the dispute himself according to the averments of section 48E of the Act. 6. In the present case it is not disputed that the Board could not record its findings, within the prescribed period of six months, as such the matter was heard by the Executive Magistrate. The challenge is that the order of the Executive Magistrate has not been passed in accordance with the provisions of the Act. The provisions of section 48E of the Act requires that there should first 4 and foremost be an attempt for amicable settlement of the dispute and if the board or the court cannot get the parties to amicably settle the dispute, the Board, or the court hearing the matter is required to record the evidence and thereafter record its findings. 7. On perusal of the order, dated 7.7.1990 (Annexure 2), it is obvious that the court did not make any attempt for amicable settlement of the dispute. This court as far back as in 1979 in the case of Rasik Lal Singh vs. State of Bihar, 1979 PLJR 20 (D.B.) has held that where the provisions of sub-sections (7) and (10) of section 48E of the act are not followed, inasmuch as the authority concerned has not made an attempt for amicable settlement between the parties, it would amount to failure of adherence to mandatory provisions aforesaid. This court quashed the order of the Collector on the basis of non-observance of the aforesaid provisions under the Bihar Tenancy Act. 8. The findings in the case of Rasik Lal Singh (Supra) was applied in a writ petition by B.P.Jha, J (as His Lordship then was) which was challenged in a Letters Patent Appeal. The Division Bench referred the matter to a larger bench, the case is reported in 1984 PLJR 419. The order passed in the case of Rasik Lal Singh with respect to interpretation of sub-section (10) of section 48E of the Act was upheld. Therefore, on perusal of the order this court holds that the order of the Executive Magistrate was not in accordance with the provisions of sub-section (10) of section 48E of the Act. The subsequent order passed in the appeal by the Additional Collector, Purnea would suffer from the same infirmity as the Additional 5 Collector was bound to refer the matter back to the Executive Magistrate to decide the case in accordance with the provisions of sub-section (10) of section 48E of the Act. 9. The second issue raised on behalf of the petitioners is that the petitioners is a small land holders and are protected by the provisions of section 48Cof the Act. It has been pleaded on behalf of the petitioners that they own 2 acres of land. The respondents, on the other hand, deny the factual position and has stated that the petitioners own 100 bighas of land and as such they would not be entitled to the protection of section 48C of the Act. Once this question has been raised by the petitioners, it was incumbent upon the courts concerned to hold an enquiry regarding the factual assertions made by the petitioners. It is submitted that in fact the Additional Collector did not even refer to the submissions but skirted the issue together. 10. Counsel for the petitioners in order to substantiate his submissions has relied on a judgment in the case of Lakshmi Thakur @ Lakshmi Narain Thakur vs. State of Bihar, 1977 PLJR 50. The facts were that the petitioner had asserted that he owned only 2 bighas and 2 kathas of land, and that there was no under-raiyat under him and secondly it was asserted that the land was within Khagaria Municipality. The opposite party filed a rejoinder alleging that the land in possession of the petitioner was about 18 bighas. The D.C.L.R. referred the matter to the Anchal Adhikari on both the issues. Later he recalled the order on the ground that the petitioners had not given declaration in Form ‘A’ regarding the area of land 6 possessed by him. This court held that it is of essence and substance of the statutory provisions that if the case of the landlord (raiyat i.e. the petitioner) owns in all, lands more than the prescribed limit, then no declaration as contemplated in Form ‘A’ would be required. It is incumbent upon the D.C.L.R. to refer the matter to the Anchal Adhikari and call for a report regarding whether the lands held by the petitioner, were within the prescribed limit, as provided under section 48C of the Act. This court finds that in the present case although the issue was raised by the petitioners before the Executive Magistrate and the Collector, it was not considered by them. 11. On perusal of the order of the Executive Magistrate, this court also finds that he has erred in not referring to the documents produced by the petitioners, it was open and well within the power of the Executive Magistrate to give cogent reasons for rejecting the documents after pursuing them. The Additional Collector’s order suffers from the same defects. This Court accordingly holds that the petitioner has succeeded on both points raised by him. I accordingly quash the order, dated 7.7.1990 (Annexure 2) and the order, dated 3. 1. 1991 (Annexure 3). This writ petition is allowed. Patna High Court, August 31, 2010, A. F. R. / haque. ( Sheema Ali Khan, J.)