IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. No. 2663 of 2011 1. MD. MOINUDDIN S/O LATE ABDUL RAHIM 2. MD. ARIF ALAM S/O LATE ABDUL RAHIM 3. MD. KADIR S/O LATE ABDUL GAFUR 4. MD. SAMAD S/O LATE ABDUL GAFUR 5. BIBI HASIBA D/O LATE ABDUL GAFUR 6. BIBI NASIBA D/O LATE ABDUL GAFUR 7. MD. MOKHTAR S/O LATE JAINUDDIN 8. MD. ANWARUL S/O LATE JAINUDDIN 9. MD. SAYEED AKHTAR S/O LATE JAINUDDIN 10. BIBI SAHALUMA D/O LATE JAINUDDIN 11. MD. NURUL HAQUE S/O LATE AINUL HAQUE 12. MD. JIYAUL S/O LATE AINUL HAQUE 13. MD. ASAMUL HAQUE S/O LATE AINUL HAQUE 14. MD. ENAMUL HAQUE S/O LATE AINUL HAQUE 15. AH TASAN S/O LATE AINUL HAQUE 16. SAH NAWAZ S/O LATE AINUL HAQUE 17. BIBI NUJ HAIRUL D/O LATE AINUL HAQUE 18. BIBI AWADA D/O LATE AINUL HAQUE 19. MD. MANAJIR S/O LATE MANJUR ALAM 20. BIBI SANJARI D/O LATE MANJUR ALAM 21. BIBI AFASARI D/O LATE MAJUR ALAM 22. BIBI MUNNI D/O LATE MAJUR ALAM 23. MD. BAHARUDDIN S/O LATE BIBI ZOHARA D/O- LATE ABDUL RAHIM 24. MD. BAH BUD S/O LATE BIBI ZOHARA 25. BIBI NAYALA KHATOON D/O LATE BIBI ZOHARA 26. BIBI FUL JAHAN D/O LATE BIBI ZOHARA ALL RESIDENTS OF VILLAGE BARHARA, P.S.- AMOUT, DISTRICT- PURNEA 27. JAMALUDDIN HUSBAND OF LATE BIBI SAFURA D/O- LATE ABDUL GAFUR. 28. MD. KAMALUDDIN S/O JAMALUDDIN 29. MD. SAMAIL S/O JAMALUDDIN 30. MD. FAZAIL S/O JAMALUDDIN ALL RESIDENTS OF VILAGE GARAIYA, P.S.- AMOUT, DISTRICT- 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 5. SK. SALIMUDDIN S/O SK. JARI BUKASH BOTH R/O VILL.- GARAIYA, P.S. AMOUT,DISTT.- PURNEA WITH C.W.J.C. No. 3379 of 2011 1. MD. MOINUDDIN S/O LATE ABDUL RAHIM 2. MD. ARIF ALAM S/O LATE ABDUL RAHIM 3. MD. KADIR S/O LATE ABDUL GAFUR 4. MD. SAMAD S/O LATE ABDUL GAFUR 5. BIBI HASIBA D/O LATE ABDUL GAFUR 6. BIBI NASIBA D/O LATE ABDUL GAFUR 2 7. MD. MOKHTAR S/O LATE JAINUDDIN 8. MD. ANWARUL S/O LATE JAINUDDIN 9. MD. SAYEED AKHTAR S/O LATE JAINUDDIN 10. BIBI SAHALUMA D/O LATE JAINUDDIN 11. MD. NURUL HAQUE S/O LATE AINUL HAQUE 12. MD. JIYAUL S/O LATE AINUL HAQUE 13. MD. ASAMUL HAQUE S/O LATE AINUL HAQUE 14. MD. ENAMUL HAQUE S/O LATE AINUL HAQUE 15. AH TASAN S/O LATE AINUL HAQUE 16. SAH NAWAZ S/O LATE AINUL HAQUE 17. BIBI NUJ HAIRUL D/O LATE AINUL HAQUE 18. BIBI AWADA D/O LATE AINUL HAQUE 19. MD. MANAJIR S/O LATE MANJUR ALAM 20. BIBI SANJARI D/O LATE MANJUR ALAM 21. BIBI AFASARI D/O LATE MAJUR ALAM 22. BIBI MUNNI D/O LATE MAJUR ALAM 23. MD. BAHARUDDIN S/O LATE BIBI ZOHARA D/O- LATE ABDUL RAHIM 24. MD. BAH BUD S/O LATE BIBI ZOHARA 25. BIBI NAYALA KHATOON D/O LATE BIBI ZOHARA 26. BIBI FUL JAHAN D/O LATE BIBI ZOHARA ALL RESIDENTS OF VILLAGE BARHARA, P.S.- AMOUT, DISTRICT- PURNEA 27. JAMALUDDIN HUSBAND OF LATE BIBI SAFURA D/O- LATE ABDUL GAFUR. 28. MD. KAMALUDDIN S/O JAMALUDDIN 29. MD. SAMAIL S/O JAMALUDDIN 30. MD. FAZAIL S/O JAMALUDDIN ALL RESIDENTS OF VILAGE GARAIYA, P.S.- AMOUT, DISTRICT- 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 5. SK. SALIMUDDIN S/O SK. JARI BUKASH BOTH R/O VILL.- GARAIYA, P.S. AMOUT,DISTT.- PURNEA For the petitioners: Mr. Praveen Kumar Agrawal For the respondents: Mr. Shabbir Ahmad, - ---------- 4 01.03.2011 In C.W.J.C. No. 2663 of 2011, petitioners have challenged the order dated 23.9.2008 passed by respondent Deputy Collector, Land Reforms, Baisi, Purnea in Bataidari Case No. 03/2002-03 (Md. Azim & Ors versus Moinuddin & Ors) whereby the respondents have been declared Bataidars in terms of provisions contained under Section 3 48E of the Bihar Tenancy Act (for short “ the Act”). In C.W.J.C. No. 3379 of 2001, the same set of petitioners have challenged the order dated 23.9.2008 passed by respondent Deputy Collector Land Reforms in Bataidari Case No. 02/2002-03 (Md. Azim & Ors versus Moinuddin & Ors) whereby on a consideration of the materials on record, the respondents therein were declared bataidars of the lands in terms of the provisions contained under Section 48E of the Act. The petitioners and the private respondents are same. The issues are identical. This Court, therefore, with the consent of the parties heard both the matter analogously. They are being disposed of by the present order. Relevant facts shall be drawn from C.W.J.C. No. 2663 of 2011. On an application filed by the private respondents in the year 2002, aforesaid two Bataidari cases were initiated in the Court of respondent No. 3. It further appears that few more such applications were filed by the bataidars. Such claim in the present case was raised in respect of land of Mauza Garhara appertaining to plot No. 292, Khata No. 10 within Amour Police Station. Notices were issued to the parties whereafter the writ petitioners appeared before the said authority. The 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 the Act. It further appears that respondent 4 Anchal Adhikari who was the Chairman of the Board failed to bring about amicable settlement between the petitioners and the private respondents. Since the statutory period of six months was to expire and the Anchal Adhikari submitted a report to the respondent D.C.L.R.. On an objection preferred by the petitioner, the said report was rejected and the respondent D.C.L.R. conducted inquiry himself as per provisions of the Act in which both the parties were allowed to adduce oral as well as documentary evidence. On a consideration of the materials on record, respondent D.C.L.R. recorded findings based on appraisal of materials adduced in course of inquiry whereby the applicant(s) (private respondents herein) were found and held bataidars and their claim made under Section 48E of the Act was allowed. Aggrieved thereby, the writ petitioners have approached this Court. Learned counsel for the petitioners submits that while constituting the Board in terms of the provisions of the Act, panches were nominated but the Panch nominated on behalf of the petitioner could not appear in the said proceeding whereafter an opportunity was granted to nominate another Panch. Consequently the writ petitioners appointed another person as his Panch. It is submitted that without making any effort for reconciliation followed by inquiry allowing the parties to lead evidence, an ex-parte 5 report was submitted by the Board in the proceeding. It is further contended that the Bataidari claim was raised based on a Sikmi right with regard to land in question which is not inheritable. It is contended that one of the land owners namely Md. Jainuddin was dead prior to the adjudication and as such the orders stands vitiated. Per contra, learned counsel appearing on behalf of the private respondents submitted 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 authorities having found that there is a prima facie case to be adjudicated upon between the parties. The Panch nominated by the petitioners showed his inability whereafter an opportunity was given to the writ petitioner to nominate another Panch and accordingly, the same was nominated. It is contended that since the statutory period of six month 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 authorities under the Act with a report which was not relied on by the Court on an objection filed by the writ petitioners. Accordingly, the D.C.L.R. made inquiries himself in terms of the provisions of the Act and passed the impugned order which is appealable in terms of the Section 48F of the Act. It is further contended that the effect of death of one of the 6 land holders prior to initiation of the proceeding shall have to be considered keeping in view the fact that many of his descendants were also parties to the proceeding and appeared therein. It is the stand of the petitioner that all these issues can very well be raised in an appeal which is a final Court of fact. Learned Counsel appearing on behalf of the State respondents supported the impugned order. It is submitted that based on the order-sheet of the Anchal Adhikari as well as the discussions of the authority under the Act, it would appear that the order under challenge 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.). It is next contended that identical/similar issues raised by the petitioners herein in C.W.J.C. No. 13691 of 2010 has been considered and disposed of by this Court by order dated 20.12.2010. I have heard the submissions made on behalf of the parties and perused the materials on record. In view of the submissions of parties, these matters were directed to be listed along with records of C.W.J.C. No. 13691 of 2010 (Md. Moinuddin & Ors versus The State of Bihar & Ors). On going through the order dated 20.12.2010 passed therein, this Court is of the view that the submissions of the 7 respondents that similar/identical issues raised by the present set of writ petitioners in C.W.J.C. No. 13691 of 2010 has been considered and disposed of whereby the petitioners were granted liberty to file appeal against the impugned orders as provided under Section 48F of the Act. The operative portion of the order dated 20.12.2010 reads as under: “Thus, this Court finds that the D.C.L.R. allowed the 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.“ Accordingly, this Court is satisfied that the present applications should also be disposed of in the aforesaid terms. Let the petitioners file appeal in terms of Section 48F of the Act. If such an appeal is preferred within six weeks from today along with a copy of the present order, the same shall be considered on its own merit and disposed of in accordance with law. Petitioners shall be at liberty to raise all issues before the said Court. Both the applications stand disposed of. pkj (Kishore K. Mandal,J)