IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9488 of 2003 1. Shiv Narayan Mahto S/o Late Badhu Mahto resident of village Bhabhata Tola Gopalpur P.S.Sathi, Dist. West Champaran 2. Ram Chandra Yadav S/o Late Dina Nath Yadav resident of village Bhabhata Tola Gopalpur P.S.Sathi, Dist. West Champaran 3. Dukhi Mahto S/o Late Jagdeo Mahto resident of village Bhabhata Tola Gopalpur P.S.Sathi, Dist. West Champaran 4. Phool Mohammad Mian S/o Late Khalil Mian resident of village Bhabhata Tola Gopalpur P.S.Sathi, Dist. West Champaran 5. Nagnarayan Yadav son of Satar Yadav resident of village Bhabhata Tola Gopalpur P.S.Sathi, Dist. West Champaran 6. Kashi Yadav son of late Indrasan Yadav resident of village Bhabhata Tola Gopalpur P.S.Sathi, Dist. West Champaran Petitioners Versus 1. THE STATE OF BIHAR 2.The Additional District Magistrate, Bettiah, West Champaran 3.The Land Reforms Deputy Collector, Narkatiaganj, West Champaran 4.The Circle Officer, Narkatiaganj, West Champaran 5.Gajadhar Jha s/o late Srikant Jha resident of village Jabdaul P.S.Chanpatia Dist. West Champaran 6. Prabhu Jha S/o late Bhola Jha resident of village Jabdaul P.S.Chanpatia Dist. West Champaran 7. Sanchu Jha S/o late Bhola Jha resident of village Jabdaul P.S.Chanpatia Dist. West Champaran 8.Prakash Jha S/o Baidya Nath Jha resident of village Jabdaul P.S.Chanpatia Dist. West Champaran 9. Gudru Jha S/o Baidya Nath Jha resident of village Jabdaul P.S.Chanpatia Dist. West Champaran 10. Sonu Jha S/o Baidya Nath Jha resident of village Jabdaul P.S.Chanpatia Dist. West Champaran Respondents ----------- For the petitioners: Mr Vikash Kumar Pankaj, Advocate For the respondents: Mr Binod Kumar AC to SCV ---------------- 3 25.08.2009 Earlier, notices were issued to respondents no. 5 to 10 and in response thereof they had appeared by filing vakalatnama. However, at the time of hearing of this matter, none had appeared on their behalf. Heard learned counsel for the petitioners and the - 2 - State. Learned counsel for the petitioners submitted that the Deputy Collector Land Reforms had issued notice to the landlord prior to taking a stand as to whether prima facie bonafide dispute exists or not. After hearing the landlord he has passed a detailed order considering the case of landlord all along but without any discussion with respect to the case of the petitioners. The order refusing to initiate a proceeding under section 48E of the Act is supposed to be passed under section 48E(i) of the Act and, though there is no provision of appeal thereof, on advice, Batai Appeal case no. 250/99- 2000/109/01-02 (Annexure 2) was preferred and had also been decided against the petitioners. However, the aforesaid appellate order would be without jurisdiction. Learned counsel for the petitioners had placed reliance upon a decision of the Special Bench of this Court rendered in Dhanji Singh vs. State of Bihar & others reported in 1979(27) BLJR 711 to show that while hearing the matter on an application filed under section 48E of the Act and before initiating proceeding, the Collector had to prima facie satisfy itself regarding the bona fide existence of the dispute with regard to the claim of - 3 - the petitioners and for that purpose he was not required to hold preliminary enquiry, as scheme of the provision does not provide two enquiries; first preliminary and other final. If the landlord on his own had appeared, he might have been heard but even in that situation, the Collector would have to keep in mind that he was not required to decide the matter finally after holding a preliminary enquiry. Learned counsel for the petitioners referred to paragraph 14 of the aforesaid decision. In that case landlord was heard and after hearing him detailed findings were recorded negativing the claim of the petitioners. The Special Bench of this Court had found that the order was without sanctioned by law. Learned counsel for the State also fairly submitted that the Collector was not required to issue notice upon the landlord while deciding the matter of initiation of proceeding under section 48E of the Act. Even if it is assumed that the notices were issued after initiation of proceeding then again order could not be held to be in conformity with the different provisions of section 48E of the Act inasmuch as in that case the matter ought to have been referred to Bataidari Board. In view of above, I am of the opinion that the order - 4 - dated 16.12.1999 passed by DCLR, Narkatiaganj, West Champaran can not be sustained for the reasons that the authority concerned was not required to issue notice and after hearing landlord record a detailed finding negativing claim of the petitioners without properly appreciating/ discussing the case of the petitioners. Even if it is assumed that the order initiating proceeding was passed earlier and notice to the landlord was issued subsequently then again the order would be bad as in that case matter was required to be referred to the Consolidation Board. For reasons as aforesaid, I set aside the order dated 16.12.1999 as contained in annexure 1. So far the appellate order is concerned, it is settled by now that there is no provision of appeal against the order refusing to initiate a proceeding. However, since the original order itself as has been set aside by this Court as above, the appellate order has also to go. Thus, the same is also set aside. This matter is remitted to the respondent no.3 to decide it afresh in accordance with law. Accordingly, this application is allowed. shahid (Dr. Ravi Ranjan, J)