CIVIL WRIT JURISDICTION CASE No.8225 OF 1994 (In the matter of an application under Articles 226 and 227 of the Constitution of India.) ******* SRI KRISHNA SHUKLA son of Sri Mathura Shukla, resident of Baswaria, Police Station Mufassil, District- East Champaran. ------------Pettiioner Versus 1. THE STATE OF BIHAR 2. The Collector, East Champaran 3. The Deputy Collector, Land Reforms Motihari, District- East Champaran. 4. The Anchal Adhikari Motihari, District- East Champaran 5. Sri Gorakh Sahni, son of Sri Ram Ratan Sahni, resident of village- Bhataha, Police Station- Motihari Mufasil, District- East Champaran. -------------Respondents with CWJC No.8228 oF 1994 SIR KRISHNA SHUKLA, son of Sri Mathura Shukla, resident of Baswaria, Police Station- Mufassil, District- East Champaran. --------------Petitioner Versus 1. STATE OF BIHAR 2. The Collector, East Champaran 3. The Deputy Collector, Land Reforms Motihari, District- East Champaran. 4. The Anchal Adhikari Motihari, District- East Champaran 5. Nagarjit Sahni @ Indrajit Sahni s/o Kisun Sahni, resident of Village-Bhataha, Police Station- Motihari District- East Champaran -----------Respondents. with CWJC No.8229 oF 1994 SRI KRISHNA SHUKLA son of Sri Mathura Shukla, resident of Baswaria, Police Station- Mufassil, District- East Champaran -----------Petitioner Versus 1. THE STATE OF BIHAR 2. The Collector, East Champaran 3. The Deputy Collector, Land Reforms Motihari, District- East Champaran. 2 4. The Anchal Adhikari Motihari, District- East Champaran 5. Gagandeo Sahani son of Narsing Sahani resident of Village- Bhataha, P.S.-Motihari, District- East Champaran. -------------Respondents. with CWJC No.8230 oF 1994 SRI KRISHNA SHUKLA son of Sri Mathura Shukla, resident of Baswaria, Police Station- Mufassil, District- East Champaran ---------------Petitioner Versus 1. THE STATE OF BIHAR 2. The Collector, East Champaran 3. The Deputy Collector, Land Reforms Motihari, District- East Champaran. 4. The Anchal Adhikari Motihari, District- East Champaran 5. Shiv Dayal Sahani, son of Shiv Sharan Sahani, resident of Village- Bhataha, Police Station-Motihari Mufassil, District- East Champaran. ----------Respondents ****** For the Petitioners:- Mr. Krishna K. Sinha, Adv. For the State:- Mr. Anil Kr. Jha, Senior Advocate. ******* P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA THE HON'BLE MR. JUSTICE JYOTI SARAN ******* Navin Sinha & Jyoti Saran, J.J. Heard learned counsel for the petitioners and learned counsel for the State in this batch of applications. No one appears on behalf of the private respondent, the Bataidari rights claimant despite valid service of notice. The private respondent preferred an 3 application claiming Bataidari rights upon the lands in question. It came to be allowed by the Additional Collector confirmed in appeal under Section 48F of the Bihar Tenancy Act (hereinafter referred to as the Act) restraining the eviction of the Bataidar from the lands in question. The petitioners question the orders in this batch of writ applications on the ground that the final order of the Bataidari Board having been passed in a proceeding without participation of the representative of the petitioners were vitiated in law as the requirement for participation of the representative of both sides was a mandatory requirement under Section 48E of the Act. Any proceedings of the Board in violation of the statutory provisions vitiate the entire proceedings, recommendation and the impugned orders of the Additional Collector and Collector arising from the same. Reliance was placed upon a Division Bench decision in 1979 BLJR 101 (Lakshmi Prasad Bhagat & Anr. Vs. The State of Bihar & Ors.) as also Bench decision in 1991(2) PLJR 82 (Krishna Deo Prasad Singh Vs. State of Bihar) and finally another Division Bench decision in 1978 PLJR 390 (Haji Taiyab Ali & Ors. Vs. State of Bihar & Ors). Counsel for the State relied upon Section 4 48E(6) to submit that any infirmity in the recommendation of the Board not containing the signature of the representative of one of the parties was inconsequential and shall not vitiate the recommendation. The necessary provisions of law relevant to the controversy are Section 48E (3), (4), (5) and (6) which are set out hereinafter:- “48E(3) When a proceeding is initiated under sub-Section (1) the Collector may refer the matter (hereinafter referred to as “dispute”) to a Board to be appointed by him, for promoting the settlement of the dispute between the under-raiyat and the landlord. (4) A Board to be appointed by the Collector in the prescribed manner under sub-section (3) shall consist of a Chairman; who shall be unconnected with the dispute referred to such Board or with any party directly affected by such dispute and two members to represent the parties to the dispute and the person appointed as a member to represent any party shall be appointed on the recommendation of that party: Provided that if any party does not nominate any person to represent him in the Board or nominates a person who is not available within such time as the Collector considers reasonable, the Collector may appoint such person as he thinks fit to represent that party. (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 5 Collector may appoint any suitable person in the prescribed manner to take his place and the proceeding shall be continued before such Board as so reconstituted. (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.” The word “may” used in Section 48E(3) has been interpreted to be a mandatory requirement in the case of Lakshmi Prasad Bhagat (Supra) relied upon by the petitioner. This issue need not detain us and requires no further discussion. If it is mandatory for the Collector to refer the matter for amicable settlement to a Board, the components for constitution of the Board under Section 48E(4) have to be read as a mandatory requirement. The proviso to this sub-section makes the mandatory nature of the provisions explicit. Not only does the statute provide for the appointment of a representative of each party, but it also provides for the consequence of a party not appointing its 6 representative, by empowering the Collector to do so in lieu thereof. If there has to be an attempt at amicable settlement, naturally views and opinions of both sides have to be expressed, exchanged and considered. The word “may” used in the proviso to Section 48E(4) has therefore to be interpreted as a mandatory requirement to be fulfilled by the Collector once the conditions for exercise thereof are satisfied. Otherwise the very purpose of a mandatory reference by the Collector to the Board stands defeated. Any other interpretation shall be doing violence to the language of the statute which is plain and unambiguous besides defeating the very purpose of the legislative enactment and scheme. Section 48E(5) thereafter provides that if such representative of a party, appointed by the party or the Collector on his behalf, as the case may be, ceases to be available, or fails to attend two successive meetings of the Board, unless shown to be to the satisfaction of the Chairman, the Collector “may” appoint a suitable person in his place. That the words “may” again have a mandatory connotation need not detain the discussion any further. The pre-requisite condition is cessation of availability on two successive dates, the absence not being explained to the satisfaction of the Chairman. There is no requirement in the statute that such 7 appointment by the Collector as a replacement is to be done only on the application of a party that his representative was not participating. It is a statutory obligation of the Collector to do so once the conditions are satisfied. It is only after the aforesaid statutory provisions have been complied with and there is participation by the representative of both sides at the stage of settlement that Section 48E(6) comes into play. Since there was due representation at the stage of efforts for amicable settlement any procedural omission by one of the members not signing the recommendation shall not vitiate it. No prejudice at the stage of settlement having been occasioned the Section seeks to preserve the proceedings of the Board, otherwise valid in law. We find it difficult to read that a proceeding of the Board not constituted properly conducted in violation of Section 48E (4) and (5) shall nonetheless assume validity and sanctity in law under Section 48E(6). In the present case on 12.3.1992, the representative of the petitioner was present only and on 23.3.1992 only the representative of the respondent no. 5 was present. The Board however, proceeded with the deliberations and submitted its report in favour of 8 Bataidari claimant. Prima facie, the Board proceeded on a single absence of the representative of the parties on a single date when the mandatory requirement under Section 48E(5) was that if the representative of a party failed to participate on two successive dates, the Collector may appoint a suitable person. If the Board proceeded without waiting for two successive dates of absence of a representative of the petitioner the act of the board was clearly violative of Section 48E(5) as it proceeded to act pre-maturely. The requirement of the law not having been fulfilled, the Collector was preempted from fulfilling his statutory obligation by appointing of another representative of a party after the conditions stood satisfied. The view taken by us finds support from a Division Bench of this Court in Haji Taiyab Ali (supra) interpreting Section 48E(4) to hold that the fact of non-availability of any representative of a party ipso facto requires the Collector to appoint any person as it thinks fit to represent that party. This view has been followed by a Bench in the case of Krishna Deo Prasad Singh (supra) also relied upon by the petitioner. The reference while admitting the writ petition on 23.3.1995 noticing the judgment of this Court in Krishna Deo Prasad Singh (Supra) observed that if a 9 representative nominated by a party remained absent that party must bear the consequence. The prima facie view was that this would enable the party to Bataidari proceeding to seek frivolous adjournment by nominating fresh representative who may not participate on the next date also thus leading to unreasonable delay in the disposal of the proceeding. The Court therefore prima facie interim opined that in such a case it may not be obligatory for the Collector to appoint a new representative in absence of an application by the petitioner before the Collector. Hence the matter has been placed before the Division Bench. We are of the considered opinion that the judgment of Krishna Deo Prasad Singh (supra) lays down the correct law and needs no reconsideration. We take the same view as Haji Tayab Ali (supra) that the appointment of a representative by the Collector in specified circumstances under Section 48E(4) and (5) are the statutory obligation of the Collector without further more and no application by a party is required to be made. The Constitution of the Board not being complete in law and the Collector having failed to perform his statutory duty to appoint another representative, the entire deliberations of the Board and 10 its recommendation being contrary to law stands vitiated. The impugned orders allowing the Bataidari claim and the appellate orders are set aside. The applications stand allowed. Patna High Court Dated 8th of July 2010 P. Kumar/NAFR ( Navin Sinha, J.) (Jyoti Saran, J.)