IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4048 of 2001 1. Shiv Das son of late Nathan Das 2. Bindeshwari Sharma S/o Kalo Sharma 3. Shiv Narain Mandal (deceased), s/o Saudagar Mandal. 3(i) Jai Prakash Mandal, son of Shiv Narain Mandal. 3(ii) Sita Ram Mandal, son of Shiv Narain Mandal. 3(iii) Krishndeo Mandal, son of Shiv Narain Mandal. 3(iv) Upendra Mandal, son of Shiv Narain Mandal. 3(v) Panch Lal Mandal, son of Shiv Narain Mandal. 4. Suresh Mandal, s/o Tilo Mandal 5. Amal Sharma, s/o Lachhu Sharma 6. Mishri Sharma (deceased), s/o late Gena Sharma. 6(i) Bhawani Devi, wife of late Mishri Sharma. 6(ii) Chuloho Sharma, son of late Mishri Sharma. 6(iii) Fulo Sharma, son of late Mishri Sharma. 7. Biranchi Sharma, s/o Sakal Sharma 8. Anirudh Sharma, son of Kulo Sharma. 9. Arjun Sharma, son of Kulo Sharma 10. Chandeshwari Sharma, son of Kulo Sharma. 11. Tilo Mandal (deceased), son of late Hiyalal Mandal 11(i) Brahmdeo Mandal, son of Tilo Mandal 11(ii) Shivjee Mandal, son of Tilo Mandal 11(iii) Deoki Mandal. 12. Raj Kumar Sharma, s/o late Shohi Sharma. 13. Shivujee Mandal, son of Tilo Mandal 14. Bishundeo Mandal, son of Tilo Mandal 14(i) Surendra Mandal, son of Bishundeo Mandal 14(ii) Birendra Mandal, son of Bishundeo Mandal 14(iii) Santosh Mandal, son of Bishundeo Mandal 14(iv) Subodh Mandal, son of Bishundeo Mandal. 15. Brahmdeo Mandal, son of Tilo Mandal. All residents of Village +P.O. Pama Tola Kabaiya, P.S. Saur Bazar, District-Saharsa. 16. Kapori Mandal, son of late Mithu Mandal 2 17. Kamleshwari Mandal, son of late Itbari Mandal, Both resident of village- Paharpur, P.S. Saur Bazar, District- Saharsa. .....Petitioners. Versus 1. The State of Bihar 2. The Collector, Saharsa 3. The S.D.O. Saharsa 4. The Deputy Collector, Land Reforms, Saharsa. 5. The Circle Officer, Paterghat, Saharsa. 6. Ashok Sharma, son of Nageshwar Sharma 7. Jai Kumar Sharma, son of Nageshwar Sharma 8. Brahmdeo Sharma, son of late Rashik Sharma 9. Bhuneshwari Sharma(deceased), son of late Rashik Sharma. 10. Sukhdeo Sharma, son of late Rashik Sharma 11. Domi Sharma, son of late Mohan Sharma 12. Gaina Sharma, son of late Lattar Sharma 13. Ghuran Sharma (deceased), son of late Sarobar Sharma 13(i) Sukhdeo Sharma, son of late Ghuran Sharma 13(ii) Mukhlal Sharma, son of late Ghuran Sharma 13(iii) Budhlal Sharma, son of late Ghuran Sharma 14. Mushharu Sharma (deceased), s/o late Gopal Sharma 14(i) Braj Kishore Sharma, son of late Mushharu Sharma 14(ii) Nand Kishore Sharma, son of Mushharu Sharma 14(iii) Jang Bahadur Sharma, son of Mushharu Sharma 15. Chamalal Sharma, s/o Bipat Sharma 16. Ashok Sharma, son of late Nageshwar Sharma 17. Jai Kumar Sharma, son of late Nageshwar Sharma. All residents of village + P.O. Pama Tola Kabaiya, P.S. Saur Bazar, District- Saharsa. ..... Respondents. ******* 3 05- 24.10.2008 Heard Mr. Hemendra Prasad Singh for the petitioners, Mr. Anwar Karim, learned junior counsel to Standing Counsel No.5 for respondent nos.1 to 5, and Mr. B.N.P. Singh for respondent nos.6 to 17. This writ petition is directed against the order dated 12.3.2001 (Annexure-5), passed by the learned Collector of the District of Saharsa, in Bataidari Appeal No.1 of 1999 (Shivdas and others Vs. Brahamdeo Sharma and others), whereby he has rejected the appeal, and upheld the order dated 18.11.1999 (Annexure-4), passed by the learned Sub- Divisional Officer, Saharsa, in Case No.285 of 1999 (Shiv Das and others Vs. Anchladhikari Saur Bazar and Brahamdeo Sharma). 2. It arises out of proceedings under section 48-E of the Bihar Tenancy Act, 1885, and is the third round of litigation. The petitioners had earlier preferred C.W.J.C. No.4516 of 1998 (Shiv Das and others Vs. The State of Bihar), which was allowed by order date 12.4.1999 (Annexure-3), whereby the recommendations of the Board, the order of the learned Land Reforms Deputy Collector, and that of the learned Collector were set aside, and the learned first authority was directed to 4 implead the petitioners therein who are the petitioners in the present proceedings, as parties. It was further observed in the order that although the authorities had noticed that the lands were purchased by the petitioners, no attempt was made to implead them as parties. It was, therefore, directed that “...Since the impugned orders have been quashed for non- joinder of the petitioners as party, I direct the Deputy Collector, Land Reforms, to hear all the relevant parties and constitute a fresh Board, if necessary in accordance with law and get the dispute herein adjudicated.” (Emphasis added) 3. The matter on remand went back to the first authority who impleaded the present petitioners as parties but refused to constitute a fresh Board in terms of sub- sections (3) and (4) of Section-48E of the Act. He instead relied on the proceedings of the Board and disposed of the matter by the impugned order marked Annexure-4. Aggrieved by this order, the present petitioners preferred appeal which has been rejected by the impugned order marked Annexure-5. The learned appellate 5 authority recorded the following observations in the appeal: tgka rd mPp U;k;ky; ds vkns’k ds vkyksd esa u;s cVk;nkj cksMZ xBu djus dk fcUnq gS bl laca/k es mPp U;k;ky; ds mij of.kZr vkns’k es funsZ’k fn;k x;k Fkk fd vxj vko’;d gks rks cksMZ dk xBu fd;k tk;@ vuqe.My inkf/kdkjh us vius vkns’k esa ik;k gS fd u;s cksMZ dk xBu iqu% djuk vko’;d ugha gS@ 4. On a perusal of the materials on record and consideration of the submissions of learned counsel for the parties, it appears to me that the learned appellate authority has not passed an order in accordance with law. He had only played with the words “vxj vko’;d gks rks cksMZ dk xBu fd;k tk;@“ He has completely failed to realise that the petitioners were not parties herein. Therefore, they were not represented before the previous Board. Relying on the proceedings of a Board, which was without participation of the present petitioners, was obviously an error apparent on the face of the record. Secondly, in view of Section 48E-(3) of the Act, the Board is bound in law to take steps to promote settlement of dispute between the under-raiyat and the landlord. The order of the learned appellate authority is bad in law on one more count. He has not himself examined 6 that whether or not it was essential to nominate a fresh Board. He has only relied on the findings/observations of the learned first authority by observing that “vuqe.My inkf/kdkjh us vius vkns’k esa ik;k gS fd u;as cksMZ dk xBu iqu% djuk vko’;d ugha gS@“ 5. Law is well settled that the appellate authority is bound to examine all the issues of facts and law. He ought to have applied his independent mind and examine whether or not nomination of fresh Board was essential in the facts and circumstances of the present case. The impugned order is a product of abdication of essential duties and functions and is also the product of non-application of the mind. 6. In the result, the order dated 18.11.1999 (Annexure-4), and the order dated 12.3.2001 (Annexure-5), are hereby set aside. The learned first authority is directed to nominate the Board in terms of Section 48-E (3) of the Act, and dispose of the matter expeditiously. This Court will be pleased if the entire process is completed within a period of six months from the date of receipt and/or production of a copy of this order. In view of the position that the parties are represented before me with their consent let 24.11.2008 be the first date before the first authority. (S K Katriar, J.) S.K.Pathak/ 7