IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15628 of 2010 1. MD.MOKHTAR ANSARI S/O LATE BASIRUDDIN ANSARI, R/O VILL. GOGARI P.S. GOGARI, DIST. KHAGARIA ---- PETITIONER Versus 1. THE STATE OF BIHAR THROUGH COLLECTOR, KATIHAR COLLECTORATE MIRCHAIBARI, KATIHAR 2. THE LAND REFORMS DEPUTY COLLECTOR, KATIHAR, P.S. MIRCHAIBARI, DIST. KATIHAR 3. THE CIRCLE OFFICER, BARARI, P.S. BARARI, DIST. KATIHAR 4. AWINASH RAY SON OF LATE KARU RAY 5. RAJESH RAY SON OF LATE KARU RAY 6. PAPPU RAY SON OF LATE KARU RAY (RESPONDENT NOS. 4 TO 6 ARE R/O VILL. NISHAHARA P.S. BARARI, DIST. KATIHAR. ---RESPONDENTS. With CWJC No.15598 of 2010 1. MD.JAHANGIR ANSARI S/O LATE SHAUKAT ALI, R/O VIL. GOGARI KASIM TOLA P.S. GOGARI, DIST. KHAGARIA ---PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE COLLECTOR, KATIHAR 2. THE LAND REFORMS DEPUTY COLLECTOR, KATIHAR, P.S. & DISTT. KATIHAR 3. THE CIRCLE OFFICER BARARI P.S. BARARI, DIST. KATIHAR 4. CHANDESHWARI RAY SON OF LATE BHAGIRATH RAI 5. BINDESHWARI RAY SON OF LATE BHAGIRATH RAI 6. BINOD RAY SON OF LATE BHAGIRATH RAI ALL RESPONDENT NOS. 4 TO 6 ARE R/O VILL. NISHAHARA P.S. BARARI DIST. KATIHAR. --- RESPONDENTS. For the Petitioners : Mr. Ajit Kumar Singh, Advocate. For the private Respondents : Mr. Jai Krishna Prasad, Advocate For the State : Mr. Mrigendra Kumar, A.C. to S.C 10 ----------- 06 19.01.2011 Heard the parties. With the consent of the parties both the matters have been taken up together for consideration and disposal as issues 2 involved therein are the same. The respondents in both the applications are related to each other and claimed Bataidari rights over the land(s) in question which have been allowed. The land holders/owners also belonged to the same family. Having regard to these facts the appeal preferred by both the writ petitioners being appeal no. 626 of 1999-2000 and 627 of 1999- 2000, were heard analogously and disposed of by the respondent Collector by order dated 29.01.2009. In C.W.J.C. No. 15598 of 2010 petitioner filed an application claiming Bataidari rights over a total area of 1.96 decimals appertaining to thana no. 220`, khata no. 987, khesra nos. 1437, 1436 and 1431 and Khata no. 1018, khesra no. 1494 situated in mauza Raunia in the District of Katihar. In C.W.J.C.No. 15628 of 2010 the aforesaid claim was allowed by the respondent in respect of 0.79 acres of land appertaining to khata no. 1018, khesra no. 1494 situated in the same mauza Raunia in the District of Katihar. This Court proposes to draw relevant facts from C.W.J.C. no. 15598 of 2010 for the purpose of disposal of the matter. On an application having been filed seeking claim of Bataidar in terms of Section 48 E of the Bihar Tenancy Act (hereinafter referred to as the ‘Act’), the respondent D.C.L.R. by order dated 25.6.93 (Annexure-2), allowed the said claim made on behalf of the private respondents. Aggrieved by the aforesaid order the land holder/writ petitioner preferred two revision applications being revision nos. 399 of 93-94, and 401 of 1993- 3 94 before respondent Collector. Respondent Collector by order dated 14.11.1994, remanded the case back to the respondent D.C.L.R. with a direction that a bataidari Board should be constituted, and the case be decided in accordance with law keeping in view the provision contained in Section 48 C of the Act. After remand, the respondent D.C.L.R. reconstituted the Board. It appears that the Board did not succeed in bringing about amicable settlement within the time prescribed under the Act, as a result whereof, a report was submitted to the respondent D.C.L.R. by the said Board. The said report of the Board was rejected by the D.C.L.R. as having been found not in accordance with law, and submitted beyond the statutory period. Thereafter an effort was made by the said Court to re-conciliate between the parties which ultimately failed. Thereafter the respondent D.C.L.R. allowed the parties to adduce oral evidence. It appears that an intervention petition was also filed on behalf of Nand Lal Roy and ors. claiming themselves to be the bataidars in respect of the disputed land. On a consideration of the materials on record, the respondent D.C.L.R. allowed the claim of the respondents and they were, thus, declared bataidars in respect of the land in question. Aggrieved by the said order the writ petitioners preferred appeal before the respondent Collector vide appeal nos. 627 of 1999-2000 in CWJC no. 15598 of 2010, and 626 of 1999-2000 in CWJC no. 15628 of 2010. Respondent Collector by a reasoned order dismissed the appeals preferred by the writ petitioners leading to filing of these two writ petitions. 4 Learned counsel, who appears in support of both the writ petitions, submits that the respondent D.C.L.R. committed an illegality in referring the matter back to the respondent Board for re-conciliation. For this proposition he placed reliance on the case of Kamleshwari Mandal & ors. vs. Balgovind Thakur & ors. since reported in 1984 PLJR 419 (para 7). According to him, the Collector should have himself conducted the entire enquiry. It is next submitted that the implication of Section 48C of the Act has not been properly considered by the respondent D.C.L.R. since the petitioners were having less than 05 acres of irrigated land and in such circumstance no right of bataidari can be allowed. Learned counsel appearing on behalf of the private respondents, on the other hand, submits that in view of the order of remand passed by respondent Collector on an application preferred by the writ petitioners themselves the D.C.L.R. was required to re-constitute the re-conciliation Board and thereby allow the parties to appear before the said Board in order to make an effort of re-conciliation. It is next submitted that in a matter concerning the claim of Bataidari made under Section 48E of the Act, the provision contained under Section 48C of the Act shall have absolutely no application. Both these provisions operate in two different and distinct fields. For this proposition he relied on the following judgments:- (i) 1997(1) PLJR 487, paragraph 12= 1997(1)BLJ 609 Mukhlal Ram vs. State of 5 Bihar & ors. (ii) 2006(2) PLJR 228=2006(1) BBCJ 358 Mojib Ansari vs. The State of Bihar & ors. I have considered the submissions made on behalf of the parties and perused the materials on record. According to the petitioner, respondent D.C.L.R. committed illegality in referring the matter back to the Board for fresh re-conciliation. It is the stand of the petitioner that previously such an attempt had failed and as such the respondent Collector was required to make an enquiry himself in terms of the provision of the Act. In this connection, learned counsel for the petitioner has relied on Kamleshwari Mandal (supra). Per contra, learned counsel for the respondents has submitted that the D.C.L.R. has simply carried out the directions made by the Collector on an application preferred by the writ petitioners themselves. In view of the said direction issued by the respondent Collector on the submissions advanced on behalf of the petitioner(s) they now cannot be heard to submit that the respondent D.C.L.R. committed an apparent illegality in referring the matter again to the Board for making a fresh attempt of re-conciliation. It appears the respondent D.C.L.R. has only obeyed the order of respondent Collector. No illegality thus can be found in making such reference of the matter to the Board. Facts of the present case are entirely different from those in the setting whereof case was decided in Kamleshwari Mandal (supra). In my view, the submission of the respondents 6 appears to be correct. It is seen from the records that the writ petitioners had preferred a revision application before the respondent Collector wherein such direction was issued while remitting the matter back to the respondent D.C.L.R. Now the petitioners cannot be heard making any complaint about such direction since the same was issued at the instance of the writ petitioners which remained unassailed. The submission of the petitioners is, therefore, fit to be rejected. Learned counsel for the petitioners has next submitted that respondent D.C.L.R. committed illegality in not considering the provisions of Section 48C of the Act. According to him, the respondents were not entitled to be declared Bataidar in respect of their lands since the writ petitioners held less than 05 acres of irrigated land and as such they were protected tenants in terms of Section 48C of the Act. To this learned counsel for the respondents has argued that the two provisions operate in altogether different fields. The claim of Bataidari can be considered and allowed even if the land holder is protected in terms of Section 48C of the Act. Reliance in this regard has been placed on a judgment of this Court in the case of 1997(1) PLJR 487(Para 12) =1997(1) BLJ 609 Mukhlal Ram vs. The State of Bihar & ors. This Court is tempted to extract para 13 of the report which reads thus:- “13. Mr. Singh, lastly submitted that respondent No.3 had only 9.48 acres of unirrigated land and hence he was insulated against any proceeding under Section 48-E of the Act. In our opinion, the submission is wholly without substance. The extent of the area of land 7 held by a landlord is relevant only under Section 48-C of the Act in terms of which a person having held the land as an underraiyat for a period of 12 years or more may raise a claim of acquisition of occupancy rights. In a proceeding under Section 48-E of the Act, the extent of land held by the landlord has absolutely no relevance.” The same view appears to have been taken by a Bench of this Court in the case since reported in 2006(2) PLJR 228. I may usefully quote para 6 of report at page 229 which reads thus:- “6. Mr. Birendra Prasad Verma, learned Senior Counsel appearing on behalf of respondent no.6, submitted that the order of the original authority was equally illegal and he erroneously mixed-up the provisions of Sections 48C and 48E of the Act. Mr. Verma submitted, and in our view quite rightly, that the provisions of Sections 48C and 48E operate in different spheres and the conditions of Section 48C had no relevance to a proceeding under Section 48E of the Act. But an illegal order passed by the original authority cannot justify another illegality committed by the appellate authority. In case the order passed by the D.C.L.R. suffered from an infirmity of law, the appropriate course would have been to set aside that order and to remit the matter for fresh adjudication, in accordance with law.” Having regard to the aforesaid proposition of law decided by Division Bench of this Court, I feel difficulty in holding that the respondents have committed illegality in considering the claim of Bataidari made on behalf of respondent nos. 4 to 6, in both the writ petitions. In fact, the respondent Collector in his appellate order dated 29.01.2009, has considered this aspect of the matter and rejected the said claim of the writ petitioners. Relying on those judgments, this Court also holds that in deciding claim of Bataidari under Section 48E of the B. T. Act 8 the provision contained in Section 48C shall have no application. These two provisions operate in different spheres. One aspect of the matter requires attention of the Court. The respondents in their counter affidavit have stated that during pendency of this application the writ petitioners have alienated their right, title, interest over the land by executing two registered sale deeds Annexure C/1 series to the counter affidavit filed in C.W.J.C.No. 15628 of 2010. It is the stand of the respondents that this factum has been concealed before this Court while filing the writ petitions. The writ petitioners have not filed any rejoinder thereto. This Court, therefore, accepts the stand of the private respondents that the present writ petitions filed on behalf of the writ petitioners suffers from suppression of material facts disentitling them from seeking remedy by invocation of extra ordinary writ jurisdiction of the Court. For all these reasons the writ petition(s) are fit to be rejected. The writ petition(s) are dismissed. Sym ( Kishore K. Mandal, J.)