IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3046 of 2002 Jay Prakash Mehta, Son of Late Nand Kishore Mehta @ Nand Kishor Mahtha, resident of village- Bhupatti, Police Station- Baboo Barhi, District- Madhubani. ...... Petitioner. Versus 1. The State of Bihar. 2. The Collector, Madhubani. 3. Deputy Collector, Land Reforms at Madhubani within the district of Madhubani. 4. Ram Ashish Sahani, Son of Basudeo Sahani, resident of Village- Kharagbani, Police- Station- Baboo Barhi, District- Madhubani. .... Respondents. ----------- 03- 23.12.2008 Heard Mr. Arun Prasad Ambastha for the petitioner, Mr. Anwar Karim, learned junior counsel to Standing Counsel No.5 for respondent nos.1 to 3, and Mr. Uday Bhanu Roy for respondent no.4. It arises out of proceedings under Section-48E of the Bihar Tenancy Act 1885 (hereinafter referred to as the „Act‟), whereby bataidari rights of respondent no.4 has been upheld and declared. 2. This writ petition is directed against the order dated 4.12.1992 (Annexure-3), passed by the learned D.C.L.R., Sadar Madhubani (respondent no.3), in Badaidari Case No.94 of 1990-91 (Shri Ram Prasad Paswan Vs. Shri Nand Kishore Mahtha and others), which has been 2 upheld by respondent no.2 (The Collector, Madhubani) by order dated 4.8.2001 (Annexure-5), passed in Bataidari Appeal No.140 of 1992-93. The respondents have not placed on record any counter affidavit. 3. A brief narration of facts essential for the disposal of the writ petition may be indicated. Respondent no.4 claims bataidari rights with respect to the following lands owned by the petitioner: ekStk [kkrk ua0 [ksljk ua0 jdok [kM+xouh 396 2300 0-5-0 + 214 2302 0-3-0 2307 0-7-0 0-15-0 Respondent no.4 filed his application dated 16.1.1991 (Annexure-1), under the provisions of Section-48E of the Act, before respondent no.3, which was registered as Case No.107 of 1990-91. Board was constituted in terms of Section-48E (iv) of the Act comprising of the learned Circle Officer as Chairman, and one Panch each nominated by the parties. The Board submitted its report indicating therein the efforts made for conciliation, as well as local inspection. On a consideration of the 3 materials on record including the report of the Board, the learned L.R.D.C. passed the impugned order, whereby he has allowed the application of respondent no.4 and upheld and declared his bataidari rights. Aggrieved by the order, the petitioner preferred appeal which has been rejected by the impugned order (Annexure-5), passed by the learned Collector of the district of Madhubani. Hence this writ petition at the instance of the landlord. 4. While assailing the validity of the impugned order, learned counsel for the petitioner submits that respondent no.4 has raised a frivolous claim. He was only ten years old when the bataidari is said to have commenced. He next submits that there was a concerted and collusive move amongst some co- villagers to grab the lands of the petitioner. 22 identical applications were filed and have been disposed of by the learned L.R.D.C. by a common order. He next submits that frivolous nature of the application in the present case is manifest on the face of the application, inasmuch as it is in a printed proforma. The same does not disclose any cause of action. Description of the land is quite vague and a 4 number of persons claimed identical bataidari rights with respect to the same block of land. He next submits that the Board did not function as a Board in so far as the statutory duty of conciliation is concerned which is mandatory in nature. In effect, there was no effort for conciliation which renders the functioning of the Board invalid. He next submits that the Board‟s report was accepted by the learned L.R.D.C. because of being unanimous, and it had failed to consider the objections raised by the petitioner. He relies on the judgment of a learned Single Judge of this Court in the case of Ganesh Prasad and others Vs. The State of Bihar and others (1981 B.B.C.J. 99). 5. Learned counsel for respondent no.4 submits that the issue of minority raised by the petitioner is an irrelevant consideration in the present context. That may be a relevant consideration in proceedings for occupancy rights. He next submits that the duty on the Board is to make sincere efforts for conciliation, and not to bring about settlement in all cases. In his submission, the Board did make sincere effort for conciliation, and non- participation of the one or the other Panch on 5 one or the other date cannot render the proceedings of the Board invalid. He next submits that there was not much to consider in so far as the objection of the petitioner to the board‟s report is concerned, because it presented unanimous view of the Board. He lastly submits that out of 22 cases disposed of by the learned first authority by the impugned order, 11 were disposed of in favour of the present petitioner which shows full application of mind. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to me that the Board did not function in the manner contemplated by sub-section (5) of Section-48E of the Act which provides as follows: “48E- xxx xxx xxx xxx xxx xxx (5) If at any time before the Board has completed its work, the service of the Chairman or any member of the Board ceases to be available, or any member of the Board fails to attend the meeting of the Board on two successive dates without showing cause to the satisfaction of the Chairman, the Collector may appoint any suitable person in the prescribed manner to take his place and the proceeding shall be 6 continued before such Board as so reconstituted.” It is manifest from a perusal of the order of the learned first authority that the Panches nominated by the parties were not present on various dates, as well as on two successive dates without showing cause to the satisfaction of the Chairman. It is surely in breach of sub-section (5) of Section-48E of the Act. 6.1) The Board did not make the requisite efforts for compromise contemplated by sub- section (5) of Section-48E of the Act which is reproduced hereinbelow: “48E. xxx xxx xxx xxx xxx xxx (6) 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 endeavours 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: Provided that failure on the part of any member of the Board to sign the report shall not effect the validity of the same.” 7 The following portion of the order of the learned first authority makes the position quite clear: “lquokbZ dh frfFk ckj&ckj fuf’pr djus ij Hkh fdlh u fdlh i{k ds iap vuqifLFkr jg tkrs Fks bl dkj.k ls mUgksaus LFkkuh; tkap djus ds fy, frfFk 19&6&92 fu/kkZfjr fd;k D;ksafd mHk; i{kksa ds chp lqyg djkus dk iz;kl laHko ugh gks ldk Fkk“ (Emphasis added) 6.2) It thus appears to me that the Board acted in violation of the provisions of sub-sections (5) and (6) of Section 48E of the Act. This is enough to render the proceedings bad in law. 7. It further appears that the applicant (respondent no.4 herein) was a minor on the date he claims that his bataidari had commenced. He has stated in his application dated 16.1.1991 (Annexure-1) that he is dealing with the land for about 32 years which takes it back to 16.1.1959. Photo copy of the extract of the voters-list is marked Annexure-2 to the writ petition, which indicates the position as on 1.1.1975. The applicant (respondent no.4 herein) is shown to be aged 26 years as on 1.1.1975, which means that he was born on 1.1.1949. It appears incredulous that a boy 8 aged 10 years would start tilling the land and would become a bataidar at that age. It is a circumstance which goes against the applicant (respondent no.4 herein). 8. This has to be read with the other circumstances on record. Learned counsel for the petitioner is right in his submission that as many as 22 applications by different Bataidars have been filed against the present petitioner all of which have been disposed of by the learned first authority by a common order dated 4.12.1992 (Annexure-3). The applicant‟s application is in printed proforma, photo copy of which is Annexure-1 and does create an impression that there was a concerted attack on the petitioner to deprive him of his lands. It is evident on a plain reading of Annexure-1 that it is in a printed pro-forma filling up the blanks regarding the description of lands, names of the parties, village etc. and the rest like kind of allegation, the cause of action, etc. are all printed. This kind of a situation does not inspire confidence with respect to the case set up by the applicant (respondent no.4). 9 9. It appears on a perusal of the order of the learned appellate authority that he accepted the Board‟s local inspection report because it was unanimous. Learned counsel for the petitioner is right in his submission that his objections to the report were not considered. Such an approach has been disapproved by this Court in the case of Ganesh Prasad & others Vs. The State of Bihar & others (Supra). The relevant portion of paragraph 5 of the judgment is reproduced hereinbelow for the facility of quick reference: “...The Bataidari Magistrate in this case on his failure to follow this procedure committed an apparent error in accepting the report of the Board merely on the ground that it was still the majority decision. There is a bunch of authorities under the Arbitration Act cases where awards given by an Umpire in such a manner have been held to be vitiated...” 10. There are indications in the order that the lands in question have not been accurately verified and different persons have claimed bataidari rights with respect to the same land. The proceedings suffer from various infirmities and cannot be sustained. 11. In the result, this writ petition is allowed. The order dated 4.12.1992 (Annexure-3), 10 passed by the D.C.L.R. Sadar Madhubani, in Bataidari Case No. 94 of 1990-91, and the order dated 4.8.2001 (Annexure-5), passed by the Collector of the district of Madhubani, in Bataidari Appeal No.140 of 1992-93 are hereby set aside. (S.K. Katriar, J.) S.K.Pathak/