IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2138 of 2001 KRISHNADEO SINGH & ORS Versus THE STATE OF BIHAR & ORS ----------- For the Petitioners : M/s Birendra Prasad Verma, Sr. Advocate, Dr. Mrityunjaya Kr. Gautam, Yogendra Kumar, Manish Kumar and R.N.Ray, Advocates For the Respondent no.5: M/s Raghib Hasan, Sr. Advocate and Bachan Jee Ojha, Advocate For the State :Mr. Anwar Karim @ Anwar, JC to SC 5 04 04.9.2008 Heard learned counsel for the parties. 2. Petitioners claim themselves to be the under raiyat of the lands in question. They have filed this writ application against the order dated 22.11.2000, Annexure-10, whereunder the Collector under the Act differing with the report of the Bataidari Board dated 20.12.1999, Annexure-8, has dismissed their claim. 3. Counsel for the petitioner submitted, with reference to the contents of last but one paragraph of the impugned order dated 22.11.2000, Annexure-10 that the said order has been passed under Sub-section 10 of Section 48E of the Bihar Tenancy Act (hereinafter referred to as the Act), which is not appealable and this Court should entertain this writ application. To buttress the aforesaid submission, he referred to paragraphs 36,37 and 38 of the counter affidavit and with reference to those statements, submitted that the DCLR himself has admitted in the counter affidavit that he passed the impugned order in exercise of his powers contained in Sub-section (10) of Section 48E of the Act and thus this Court should proceed on the basis that the 2 impugned order is passed under Sub-section (10) of Section 48E of the Act, which is not appealable. In this connection, learned counsel relied upon three Division Bench judgments of this Court in the case of Rasik Lal Singh and others Vrs. The State of Bihar and others, reported in 1979 (27) BLJR 20, in the case of Kamleshwari Mandal and others Vrs. Balgovind Thakur and others, reported in 1984 PLJR 419 and in the case of Prem Shankar Dubey & Ors. Vrs. The State of Bihar & Ors., reported in 2008(2) PLJR 143.With reference to paragraph 4 of the judgment rendered in the case of Rasik Lal Singh and others (Supra), submitted that there does not lie any appeal against the order passed under Sub-section (10) of Section 48E of the Act. The other two Division Bench judgments in the case of Kamleshwari Mandal and others and Prem Shankar Dubey & Ors. (Supra) have also relied upon the judgment rendered in the case of Rasik Lal Singh and others (Supra) and has held that the orders passed under Sub-section (10) of Section 48E of the Act is not appealable. He further pointed out that earlier also this matter had come to this Court at the instance of the petitioners in CWJC No. 4669 of 1997, which was allowed under orders dated 5.8.1998, Annexure-5 and the matter was remitted back to the Collector under the Act to take steps for fresh amicable settlement between the parties through a Conciliation Board in accordance with law, which order was also affirmed under orders dated 4.1.1999, passed in L.P.A. No. 1005 of 1998, 3 Annexure-6 and in the light of the aforesaid two orders, the illegality in the impugned order should be appreciated by this Court itself. 4. Counsel for the private Respondent no. 5, the raiyat has countered the aforesaid submission, with reference to the contents of the order at internal page 5 and submitted that close perusal of the order would indicate that the Collector under the Act having not been satisfied with the report, differed with the same giving out reasons for not accepting the same and while giving out reasons for not accepting the report, has also made a factual statement that the report was submitted beyond the period of six months from the date of reference/ constitution of the Board as is required under Sub-section (10) of Section 48E of the Act. The said statement of fact shall, however, not change the nature of the order. In the light of the aforesaid submission, learned counsel asserted that the order has been passed under Sub-section (8) of Section 48E of the Act against which there lies an appeal in terms of Section 48F of the Act. He further submitted that the nature of the order is to be construed from the contents of the order publicly made in exercise of statutory authority and not in the light of the explanations subsequently given by the officer making the order. 5. Having perused the impugned order myself, I am satisfied that while passing the impugned order, the Collector under the Act has differed with the report submitted by the 4 Bataidari Board and while differing with the report he has also indicated that the report was submitted beyond six months in violation of Sub-section (10) of Section 48E of the Act. Once the Collector under the Act has given reasons for differing with the report of the Board submitted beyond six months, the order is necessarily under Sub-section (8) of Section 48E of the Act and if the order is under Sub-Section (8) of Section 48E of the Act, then there lies an appeal under Section 48F of the Act and this writ application is dismissed to avail the remedy of appeal. Arjun/ (V.N. Sinha, J.)