IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8762 of 2002 BUCHESHWAR PASWAN, S/O- LATE GARBHU PASWAN, R/O- VILLAGE- JABE POLICE STATION, BHAWANIPUR, DISTRICT - PURNIA Versus 1. THE STATE OF BIHAR 2. THE DEPUTY COLLECTOR LAND REFORMS AT DHAMDAHA, POLICE STATION – DHAMDAHA, DISTRICT – PURNIA 3. BIBI MISTARI KHATOON WIFE OF MD. AZIZ 4. BIBI SAKILA KHATOON WIFE OF SK. ALAMGIR 5. BIBI ASGARI KHATOON WIFE OF ADBUS SALAM 6. BIBI HUSHNA ARA KHATOON WIFE OF SK. JABBAR NO. 3 TO 6 ARE DAUGHTERS OF SK. MAHIRUDDIN 7. MD. ISTYAQUE ALAM 8. MD. IMTIAJ ALAM 9. MD. IFTIKHAR ALAM SONS OF SK. JABBAR 10.SK. ALIM 11.SK. SALIM SONS OF LATE SK. MANIRUDDIN 12.(A) ANISA KHATOON (WIFE) (B) NASIMUDDIN (SON) (C) WASIM ( SON OF LATE SK. KALIM) (D) FARHAT BANO (DAUGHTER OF LATE SK. KALIM) 13. SK. SATTAR NO. 3 TO 13 ARE RESIDENTS OF VILLAGE – JABE, POLICE STATION – BHAWANIPUR, DISTRICT - PURNIA ----------- 10. 03.03.2009 Heard learned counsel for the petitioner, respondent nos. 3 to 6 as also the State. Petitioner is aggrieved by order dated 21.03.2002 passed by the respondent no.2 in Bataidari Case No. 12 of 2001 as contained in Annexure-7 whereby he dismissed the application filed by the petitioner under Sub-Section 1 of Section 48(e) of the Bihar Tenancy Act (hereinafter referred to as ‘Act’). - 2 - It is submitted on behalf of the petitioner that the respondent no.2 while passing the impunged order committed serious error of law in considering the entire merits of the matter with respect to the dispute regarding the ownership of the land holder. He further submits that once the respondent no.2 on being prima facie satisfied that there exists a bonafide disputes with regard to the identity of the land holder and also the possession, it was incumbent upon him to constitute the Bataidari Board under Sub-Section 3 of Section 48(e) of the aforesaid Act. That having not done the impunged order deserves to be quashed as the respondent no.2 has himself virtually held a full fledged trial of the issue in question. Learned counsel appearing on behalf of respondent nos. 3 to 9 submits that the entire consideration of the respondent no.2 as per the impunged order was only to arrive at the prima facie satisfaction with regard to the dispute between the parties and not a full fledged trial of the issue in question i.e. Bataidari claim of the petitioner. No counter affidavit has been filed by any of the respondents. Upon hearing the rival submissions of the parties it appears that the dispute between the parties - 3 - was with regard to the relationship between the parties under raiyat and the land holder. Respondent no.2 came to a finding to the effect that the second party who were sons of the original recorded raiyat were not the real land holder whereas the daughters of the original land holder who were the first party was the real land holder having the title on account of the gift executed by the original land holder in their favour. It further appears that the respondent no.2 for considering as to whether there is a bonafide dispute between the party has virtually gone deep into the matter and decided the bone of contention between the parties after taking notes of the documents as detailed in paragraph-4 and 5 of the order as well as giving a finding that in absence of any receipt in favour of the petitioner the claim of the Bataidari was not accepted. In my opinion these matters needs detailed examination and consideration on the basis of the materials/evidence to be considered by a Bataidari Board to be constituted in terms of Section 3 of the aforesaid Act and thereafter, further proceeding would follow as provided under Sub- Section 3 of Section 48(e) of the aforesaid Act. The respondent no. 2, however, would be within its competency to pass final order on the merits of the matter only if the Bataidari Board fails - 4 - to decide the issue within a statutory period of six months from the above. Therefore, it appears that the finding recorded by the respondent no.2 could not have arrived by him at the stage of initiation of the proceeding under sub- Section 1 of Section 48(e) of the Act. The proceeding after initiation ought to have referred to the Board constituted by him in terms of Sub- Section 3 of the Act. The same having not done, in my opinion the impugned order dated 21.03.2002 in case no. 12 of 2001 passed by respondent no. 2 as contained in Annexure-7 could not be sustained in law, thus the same is accordingly quashed and the matter is remitted back to the respondent no.2 to take necessary steps as required under Sub- Section 3 of Section 48(e) of the aforesaid Act. The writ application is accordingly, disposed of with the above observations/directions. Jagdish/- (Shailesh Kumar Sinha,J)