IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13691 of 2010 1. MD. MOINUDDIN S/O LATE ABDUL RAHIM R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 2. MD. ARIF ALAM S/O LATE ABDUL RAHIM R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 3. MD. KADIR S/O LATE ABDUL GAFUR R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 4. MD. SAMAD S/O LATE ABDUL GAFUR R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 5. BIBI HASIBA D/O LATE ABDUL GAFUR R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 6. BIBI NASIBA D/O LATE ABDUL GAFUR R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 7. MD. MOKHTAR S/O LATE JAINUDDIN R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 8. MD. ANWARUL S/O LATE JAINUDDIN R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 9. MD. SAYEED AKHTAR S/O LATE JAINUDDIN R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 10. BIBI SAHALUMA D/O LATE JAINUDDIN R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 11. MD. NURUL HAQUE S/O LATE AINUL HAQUE R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 12. MD. JIYAUL S/O LATE AINUL HAQUE R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 13. MD. ASAMUL HAQUE S/O LATE AINUL HAQUE R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 14. MD. ENAMUL HAQUE S/O LATE AINUL HAQUE R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 15. AH TASAN S/O LATE AINUL HAQUE R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 16. SAH NAWAZ S/O LATE AINUL HAQUE R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 17. BIBI NUJ HAIRUL D/O LATE AINUL HAQUE R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 18. BIBI AWADA D/O LATE AINUL HAQUE R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 19. MD. MANAJIR S/O LATE MANJUR ALAM R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 20. BIBI SANJARI D/O LATE MANJUR ALAM R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 21. BIBI AFASARI D/O LATE MAJUR ALAM R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 22. BIBI MUNNI D/O LATE MAJUR ALAM R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 23. MD. BAHARUDDIN S/O LATE BIBI ZOHARA D/O LATE ABDUL RAHIM R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 24. MD. BAH BUD S/O LATE BIBI ZOHARA R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA - 2 - 25. BIBI NAYALA KHATOON D/O LATE BIBI ZOHARA R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 26. BIBI FUL JAHAN D/O LATE BIBI ZOHARA R/O VILL.- BARHARA, P.S. AMOUT, DISTT.- PURNEA 27. JAMALUDDIN HUSBAND OF LATE BIBI SAFURA D/O LATE ABDUL GAFUR R/O VILL.- GARAIYA, P.S. AMOUT, DISTT.- PURNEA 28. MD. KAMALUDDIN S/O JAMALUDDIN R/O VILL.- GARAIYA, P.S. AMOUT, DISTT.- PURNEA 29. MD. SAMAIL S/O JAMALUDDIN R/O VILL.- GARAIYA, P.S. AMOUT, DISTT.- PURNEA 30. MD. FAZAIL S/O JAMALUDDIN R/O VILL.- GARAIYA, P.S. AMOUT, DISTT.- PURNEA Versus 1. THE STATE OF BIHAR 2. THE S.D.O., BAISI, DISTT.- PURNEA 3. THE D.C.L.R. BAISI, DISTT.- PURNEA 4. SK. KALIMUDDIN S/O SK. JARI BUKASH R/O VILL.- GARAIYA, P.S. AMOUT, DISTT.- PURNEA 5. SK. SALIMUDDIN S/O SK. JARI BUKASH R/O VILL.- GARAIYA, P.S. AMOUT, DISTT.- PURNEA For the petitioners : Mr. Praveen Agrawal, Advocate For the State : Mr. Tej Bahadur Singh, Sr. Advocate For the Private respondent : Mr. Shabbir Ahmad, Advocate -------- 5 20.12.2010 Heard learned counsel for the petitioners for the private respondents and the State. Present application arises out of a proceeding initiated by the private respondents herein under Section 48E of the Bihar Tenancy Act (for short the Act). Petitioners are aggrieved by the order dated 23.9.2008 passed by respondent Deputy Collector Land Reforms, Baisi, District- Purnea in Bataidari Case No. 4/2002-03 of the Court of respondent D.C.L.R.. Notices were issued to the parties whereafter the writ petitioners appeared before the said authority. It is the assertion of the petitioners that respondent D.C.L.R. constituted a Bataidari Board and referred the matter to the said Board with a direction to proceed in the matter in terms of the provisions of - 3 - the Act. It is further asserted in the writ petition that the respondent Anchal Adhikari failed to bring about amicable settlement between the petitioners and the private respondents. Since the statutory period of six months was to expire, hence the Anchal Adhikari submitted a report before the respondent D.C.L.R.. On an objection preferred by the petitioners, the said report was rejected and the respondent D.C.L.R. conducted an inquiry himself as per the provisions of the Act in which both the parties were allowed to adduce oral as well as documentary evidence. Witnesses were examined on behalf of the writ petitioners and the respondents. On a consideration of the materials on record, respondent Deputy Collector Land Reforms recorded finding(s) based on the materials on record that the applicant (private respondents herein) were able to demonstrate their claim with regard to Bataidari on the lands in question. Aggrieved thereby, the writ petitioners have approached this Court. Learned counsel for the petitioners submits that initially, while constituting the Board in terms of the provisions of the Act, Panches were nominated but since the Panch nominated on behalf of the petitioner could not appear in the said proceeding, an opportunity was granted to nominate another Panch. Consequently, the writ petitioner appointed another person as his Panch. It is the stand of the petitioners that without making any effort for reconciliation followed by - 4 - inquiry allowing the parties to lead evidence, an ex parte report was submitted by the Board in the proceeding. It is further the case of the petitioners that the Bataidari claim was raised based on a Sikmi right with regard to land in question which is not inheritable. It is also the stand of the petitioners that two of the land owners namely Md. Jainuddin and Bibi Johra were dead prior to the adjudication and as such the order stands vitiated. Learned counsel appearing on behalf of the private respondents submits that from the pleadings made in the writ application, it would appear that initially in terms of the provisions of the Act, a Board was constituted by the respondent D.C.L.R. having found that there is a prima facie case to be adjudicated upon between the parties. The Panch nominated by the writ petitioners showed his inability whereafter an opportunity was given to the writ petitioners (land owners) to nominate yet another Panch and, accordingly, Abdul Wadud was nominated by the land holders. Referring to the order of the respondent Anchal Adhukari, it is submitted that since the period of six months was going to expire and as such the respondent Anchal Adhikari did not allow the parties to lead evidence and referred the matter back to the authority under the Act with a kind of report which was not relied upon by the Court on an objection filed by the writ petitioners. Accordingly, the D.C.L.R. made inquiries himself in terms of the Act and passed the impugned order which, according to him, is appealable in - 5 - terms of Section 48F of the Act. Learned A.A.G.-VII supported the impugned order. It is the stand of the learned Addl. Advocate General that based on the order-sheet of the Anchal Adhikari as well as the discussions of the D.C.L.R., it would appear that the impugned order was not passed in agreement with the report submitted by the respondent Anchal Adhikari and as such the order would be appealable. He relied on a judgment of this Court reported in 1979 P.L.J.R. 475 (D.B.). I have heard the submissions made on behalf of the parties and perused the materials on record including the pleadings made in the writ petition. From the pleadings made in the writ petition, it appears that the writ petitioners admitted that once the Anchal Adhikari failed to bring about any amicable settlement between the parties he embarked on an inquiry but considering the time constraint, referred the matter back to the respondent D.C.L.R. for proceeding in accordance with law. It is further seen from the order of Anchal Adhikari dated 20.3.2004 (Annexure-4) that it was not deemed expedient to keep the matter pending for allowing the parties to adduce evidence considering the time involved and as such the records were sent back to the court of D.C.L.R. along with a report. It further appears that the said report was not acted upon on objection filed by the petitioners. Thus, this Court finds that the D.C.L.R. allowed the - 6 - parties to lead evidence whereafter came to the conclusion that the private respondents herein have been able to prove their claim of Bataidari in respect of the disputed lands. That being the situation, this Court is satisfied that the petitioner would be well advised to file appeal in terms of Section 48F of the Act. If such an appeal is preferred within six weeks from today, the same shall be considered on its own merit and disposed of in accordance with law. Petitioners will be at liberty to raise all other issues before the said Court. The application is accordingly disposed of. pkj (Kishore K. Mandal, J)