IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.812 of 2005 BAIDYANATH GOSWAMI @ BAIJA NAN GOSWAMI & ORS. Versus THE STATE OF BIHAR & ORS ----------- For the petitioner: M/S. Sarangdhar Jha,& Sanjay Kumar Sharma For the State: Mr. Sanjay Kumar No.1, G.P.14 and Ms.Archanan Snali J.C. to GP 14. ----------- 7. 2.5.2008 I.A No. 2567/2008 The interlocutory application has been filed for substituting the heirs of petitioner no. 1. It is stated that petitioner no.1, Baidya Nath Goswami @ Baijanand Goswami died on 13.5.2007 leaving behind his heirs and legal representatives whose names are stated in paragraph no. 2 of the interlocutory application. In the above circumstances, the name of petitioner no.1, Biadya Nath Goswami @ Baijanand Goswami is directed to be expunged and in his place his heirs and legal representatives as stated in paragraph no. 2 of the interlocutory application are directed to be substituted. I.A. No. 2567/2008 is accordingly disposed of. All the newly added heirs have already entered appearance by filing Vakalatnama. Heard learned counsel for the petitioners, learned counsel for respondent nos. 6 and 7 and learned G.P. No. 14 for the State. The petitioners seek quashing of the order dated 20.10.2004 (Annexure-3) passed by the Additional Collector, Araria in Appeal Case No. 6/2002-03 under Section 48(F) of the Bihar Tenancy Act by - 2 - which he has set aside the order dated 20.6.2002 (Annexure-2) passed by the Deputy Collector ,Land Reforms , Araria, in Bataidari Case No. 590/91-92. The present case has a chequered history. An application under Section 48 E of the Bihar Tenancy Act was filed on 17.2.92 before the D.C.L.R. Araria by respondent nos. 6 and 7 claiming that they used to cultivate the same for about 30 years on oral batai under respondent nos. 8 to 11. Accordingly, the bataidari case filed on 17.2.1992 was registered although respondent nos. 8 to 11 did not appear but the petitioners appeared before the D.C.L.R. and filed an application on 10.11.93 for being impleaded as party claiming that they were earlier Adhi Bataidar under the respondent nos. 8 to 11 and the said respondents land owners had taken money for treatment and other works from the petitioners and when they became unable to refund the said amount they contracted to sell the land to the petitioners. It was further claimed in the said intervention application that the respondent no. 6 was also desirous to purchase the said land but the land owners refused to sale the land to him and thereafter two sale deeds were duly executed in favour of the petitioners on 17.6.92. Since then, the petitioners are coming in peaceful cultivating possession over the land in question and also have two houses over the same. The intervention petition was allowed and the petitioners were added as party in the Bataidari proceeding. Thereafter the Bataidari Board was constituted under the Circle Officer, Raniganj and ultimately on the basis of the report of the Chairman of the said Board - 3 - the respondent nos. 6 and 7 were declared by the D.C.L.R. as Bataidars. The petitioners filed Bataidari Appeal Case No. 152/ 93-94 before the Collector, Araria who by his order dated 25.8.95 found that no attempt was made to constitute the Bataidari Board in the absence of the punches in accordance with the provisions of Section 48 E(5) and the Chairman of the Bataidari Board had also not made the local enquiry after informing the parties. No memo of enquiry was prepared by him and further no attempt was made by the Chairman of the Board for amicable settlement of the dispute between the parties. Though it was further held by the Additional Collector, Araria in the said order that despite the said facts being brought to the notice of the D.C.L.R., without following the proper procedure he has accepted the report of the Board and for the said reasons the order dated 3.12.93 of the D.C.L.R. was set aside and the matter was remitted back to him to decide afresh in accordance with law after following the prescribed procedure. It is admitted that though all the parties appeared, even on remand no fresh Board was constituted by the D.C.L.R. and merely on hearing the parties he has passed the order dated 20.6.2002 which went in favour of the petitioners. Again the said respondent nos. 6 and 7 filed appeal before the Collector which was numbered as Appeal Case No. 6/2002-03 and was allowed by the Additional Collector, Araria by order dated 20.10.2004 which is impugned in this writ application. Learned counsel for the petitioners submits that no appeal - 4 - lies against an order of the D.C.L.R. which has been passed without any reference to any report of the Board as in the present matter and thus for the said reason the order of the Additional Collector is non est , illegal and fit to be set aside. Learned counsel for the petitioners also submits that no proper notice was given to the petitioners by the Additional Collector before passing the said order and the matter has been disposed of without giving proper opportunity of hearing. Learned counsel for the respondent nos. 6 and 7 on the other hand submits that on the basis of the fact recorded in the order sheet that both the sides had appeared before the Additional Collector and the petitioners had also appeared on several dates thereafter, but subsequently they started remaining absent and in the said circumstances, the impugned order has been passed. Learned counsel however argue that the order cannot be passed under Section 48E(10) of the Act since in the present matter the Board had been constituted and submitted its report and thus it would be considered to be an order under Section 48E(8) of the Act which would definitely be appealable under Section 48F of the Act. It is evident that the order of remand dated 25.8.1995 had directed the D.C.L.R. to re-hear the matter in accordance with the prescribed procedure, but the order has not been followed in its spirit and the D.C.L.R. has proceeded to decide the matter straightway after hearing the parties. No steps were taken by the D.C.L.R. to re- constitute the Board in accordance with the provisions of the Act and - 5 - proceed afresh in the matter as per the Act thereafter. The order of the Additional Collector also is not in accordance with law since he has merely set aside the order of the DCLR without again remanding the matter to him to proceed afresh from the stage of reconstitution of the Bataidari Board. This aspect has been ignored by him while emphasizing the fact that the petitioners remained absent during the subsequent part of the proceedings before him. Thus on a consideration of the entire facts and circumstances, the impugned order dated 20.10.2004 passed by the Additional Collector, Araria in Appeal Case No.6/2003-04 is modified to the extent that the matter is remitted to the Deputy Collector, Land Reforms, Araria, to proceed afresh in the matter in accordance with law in the light of the observations made in this order. The writ application is accordingly allowed to the extent indicated above. P. Kumar (Ramesh Kumar Datta, J.)