Dhanji Singh v. State Of Bihar

NAGENDRA PRASAD SINGH, J.

(1.) The petitioner, in this writ application, questioned the legality of an order dtd. 24-1-1978 passed by the respondent Sub-divisional Officer, Sasaram, in purported exercise of power under Section 48E of the Bihar Tenancy Act (hereinafter referred to as the Act). A copy of that order is Annexure 1 to the writ application.

(2.) The petitioner filed an application before the respondent Sub-divisional Officer, on 25-1-1977, alleging therein that he was the under raiyat of respondent No. 3 (hereinafter referred to as the re-spondentl and the respondent along with her supporters were disturbing the possession of the petitioner over the lands in question, as such, the respondent should be restrained from interfering with his possession. A copy of that petition is Annexure 2 to the writ application. The Sub-divisional Officer on that very day asked the Anchal Adhikari, Nasriganj to make enquiry and to submit report. Later, he recalled the said order and directed the project Executive Officer, Karakat to hold local enquiry and report. The case was adjourned from time to time as the report was not received. Having learnt about the apprehension of breach of peace over the cutting of the crops, on 8-11-1977, he directed the Officer in charge of Nasriganj police station not to allow either party to harvest the paddy crop grown on the said lands till further orders. On 5-12-1977, an application was filed on behalf of the respondent making a prayer for an order allowing her to harvest the crop, which was directed to be put up on 6-12-1977. On 6-12-1977, the Sub-divisional Officer directed the Officer in charge of the police station to get the crops harvested. In the meantime a report of the Officer in charge of the police station as well as of the Project Executive Officer were received.

(3.) On 2-1-1978, learned Sub-divisional Officer heard both the parties on the merit of the case. On behalf of the petitioner it, was urged that he was under tenant of the respondent and, as such, he cannot be dispossessed from the lands in question. On behalf of the respondent. however, it was disputed. According to the respondent, the report of the Officer in charge of the police station as well as the report of the Project Executive Officer did not support the claim of the petitioner. Both parties urged other questions of law as well as fact, and having noted their arguments in the order dated 2-1-1978, learned Sub-divisional Officer fixed 10-1-1978 for orders. Ultimately, on 24-1-1978, the impugned order was passed saying that be had heard the learned counsel appearing for both the parties and had perused the documents filed on their behalf, as well as the reports aforesaid from which he was satisfied that the land was in possession of the respondent and the petitioner was not cultivating the said lands as under-tenant. On that finding, he dropped the proceeding and directed the police to hand over the crops, which had been harvested, to the respondent.

(4.) The legality of the aforesaid order has been challenged primarily on the ground that it was not open to the learned Sub-divisional Officer to record findings on the merit of the case and after initiating the proceeding he should have constituted a Board as contemplated by Section 48E of the Act. According to the petitioner, the Sub-divisional Officer has adopted a procedure which is not sanctioned by law.

(5.) This case was referred to a Special Bench by Honble the. Chief Justice, perhaps, to determine the scope of subsection (1) of Section 48E of the Act which empowers the Collector to initiate a proceeding under that section for the purpose of deciding a dispute between the raiyat and under raiyat in respect of possession and dispossession of the lands.

(6.) Sub-section (1) to Sub-section (3) of Section 48E of the Act, as substituted by Bihar Act VIII of 1970, which are relevant for the purpose of this case, are as follows :-- "(1) If an under raiyat is threatened with unlawful ejectment from his tenancy or any portion thereof by his landlord or if there is a dispute between them over the possession of land, crop or produce thereof, either on the ground of non-existence of relationship of landlord and tenant between them or otherwise or if an under raiyat is or has been ejected from his tenancy or any portion thereof within twelve years before the commencement of proceedings under this section in contravention of the provisions of Section 89, the Collector may, of his own motion or on application made in this behalf by the under raiyat, initiate a proceeding for preventing the landlord from ejecting the under-raiyat or for settlement of the said dispute or for restoration to possession under raiyat unlawfully ejected from his tenancy or portion thereof :-- (2) The Collector may, after hearing the parties, about which due notice shall have been given to them or ex parte, in cases of emergency, by an order in writing, prevent the landlord from ejecting the under-raiyat until disposal of the proceeding or until further orders and if he is of opinion that any crop or produce of the land which is subject matter of dispute in the proceeding under this section, is liable to speedy and natural decay, he may, if the situation so warrants and in a similar manner as aforesaid direct the proper custody or harvesting or sale as the case may be, of such crop or produce or the sale proceeds thereof. (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."

On a plain reading of the aforesaod subsections it appears that the Collector may, of his own motion, or on applica- tion made in this behalf by the under raiyat, initiate a proceeding under Section 48-E, (i) if an under raiyat is threatened with unlawful ejectment from his tenancy or any portion thereof by his landlord, (ii) if there is a dispute between them over the possession of the land, crop or produce thereof, either on the ground of non-existence of relationship of landlord and tenant or otherwise, (iii) if an under-raiyat is or has been ejected from his tenancy or any portion thereof within 12 years before the commencement of the proceeding under said section in contravention of the provisions of Section 89. Sub-section (2) vests power in the Collector to prevent the landlord from ejecting an under raiyat till the disposal of the proceeding or until further orders. This power is analogous to the power of granting injunction. Sub-section (2) says that such orders can be passed only after hearing the parties, it can be passed ex parte, only in cases of emergency. Sub-section (3) provides that once a proceeding is initiated under Sub-section (1), the Collector may refer the dispute to the Board. to be appointed by him for promoting the settlement of the dispute between the parties. Sub-section (4) of Section 48-E says that the Board shall consist of a Chairman and two members to represent two parties to be appointed on the recommendation of the parties concerned. Thereafter, in view of Sub-section (6), the Chairman has to give written notice to both the parties and then the Board has to make endeavours to bring about an amicable settlement of the dispute. If the Board does not succeed in bringing about an amicable settlement of the dispute, in view of Sub-section (7), it has to "make enquiry into the same, receive such evidence as it considers necessary, record its findings on the disputes and transmit the entire record of the proceeding forthwith to the Collector who may dispose of the proceeding in accordance with the terms at the finding." In case of disagreement with the report or findings of the Board, the Collector, under Sub-section (8), after giving the parties concerned a reasonable opportunity of being heard, can make enquiry and he can pass orders restraining the landlord from interfering with the possession of the under-tenant or declaring the possession of the under-tenant or restoring the possession to the under tenant. Sub-sectioin (10) provides that if the Board fails to record its finding or transmit the records within a period of six months from the date of its appointment, the Collector may withdraw the proceeding from the Board and decide the dispute himself. Sub-sectioin (12) says that the Board shall have the same power regarding the summoning and attendance of witnesses and compelling the production of documents as a Civil Court has under the Code of Civil Procedure, and "the Collector shall have general control and superintendence over the Board."

(7.) In view of the aforesaid provisions, there should not be any difficulty in holding that although the Collector has been vested with general control and superintendence over the proceedings in connection with the dispute between the landlord and the under raiyat, still, at the first instance, after having initiated the proceeding under Sub-section (1) of Section 48-E, the Collector has to refer the dispute to the Board. The Board has first to make endeavour for an amicable settlement, failing which it has to make enquiry and has to receive such evidence as it considers necessary, and, thereafter, to record a finding in respect of the dispute. The Collector can decide that dispute only under two contingencies, if he differs with the findings and report of the Board, or, if the Board fails to record its finding within a period of six months from the date of its appointment. But there is no question of Collector deciding the dispute before the Board constituted by him has an occasion to apply its mind. The purpose appears to be obvious, Sub-section (3) itself says in so many words that after initiating the proceeding under Sub-section (1), the Collector may refer the matter to a Board for promoting settlement of the dispute between the parties. The Board, which consists of one representative of both the parties, shall be in much better position to make endeavour about the amicable settlement of the dispute. In the case of Ram Narain Singh v. State of Bihar (AIR 1973 Pat 275 [LQ/PatHC/1972/143] ), a Bench of this Court has considered the scope of this Section 48-E and it was pointed out that the function of the Board was similar to arbitrators, the only difference being that in case of a proceeding under Section 48-E there is a provision of compulsory reference to arbitration. In my view, although Sub-section (3) says that when a proceeding is initiated under Sub-section (1) the Collector may refer the matter to a Board to be appointed by him, it has to be interpreted that after initiating the proceeding he has to refer the matter to the Board. It was pointed out in the aforesaid Ram Narain Singhs case in connection with Sub-section (1) of Section 48-E that, no doubt, the legislature has used the word may which is generally understood as enabling and not mandatory, but "when the power conferred by the statute is coupled with the duty of the person to whom it is given to exercise it, then even though the word may is used, it has to be construed as imperative." In the case of Julius v. Lord Bishop of Oxford [(1880) 5 AC 214] The Lord Chancellor (Earl Cairns) observed :--

"That where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the court will require it to be exercised."

It was further observed by the Lord Chancellor :--

"There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so."

In my view, although Sub-section (3) of Section 48-E uses the expression may, it has to be held that once a proceeding is initiated under Sub-section (1) of that section, the dispute has to be referred to the Board to be constituted by the Collec-tor. A Bench of this Court in the case of Lakshmi Prasad Bhagat v. State of Bihar (1978 BBCJ (HC) 750) has held that the Collector after initiating the proceeding has no jurisdiction to decide the dispute without reference to the Board. I am in respectful agreement with the said view. If the impugned order amounts to deciding the dispute itself, then it has to be held that the Sub-divisional Officer had no such power before it had been referred to the Board.

(8.) Being faced with this situation, the learned counsel for the respondent submitted that the impugned order does not amount to deciding the dispute finally, but it only amounts to refusal to initiate a proceeding under Sub-section (1) of that section. Learned counsel further urged that the Collector is not bound to initiate a proceeding, no sooner an application is filed on behalf of the under-tenant, he has to apply his judicial mind and in appropriate cases he may reject the prayer of the under-tenant. What is the scope of Sub-section (1), can be determined only after it is ascertained as to whether under Sub-section (1) the Collector has to exercise an administrative power or a quasi Judicial one. According to learned Government Advocate, who appeared on behalf of the State, the Collector has no option, after having received an information or petition from the under-tenant regarding 8 theatened ejectment, or a dispute about possession or dispossession of the undertenant, but to refer the same to the Board for decision. As such, according to him, there is no question of exercise of a quasi judicial power at that stage. In my opinion, it is difficult to accept this contention. Sub-section (1) prescribes three contingencies, mentioned above, under which the Collector has to initiate a proceeding. The Collector, before initiating the proceeding has to be satisfied on the materials produced before him or on the basis of the information received by him that one of those three requisite conditions exists. Is the Collector bound to initiate a proceeding under Sub-section (1), if an allegation has been made in the petition of the under-tenant, that he had been dispossessed on a date which is beyond 12 years from the date of the filing of this application Similarly, is he bound to initiate a proceeding if the allegation or information is that the under-tenant has been dispossessed not by his landlord but by a third person The answer in both the cases shall be in the negative. Therefore, it cannot be said that at the time of initiating a proceeding, the Collector has not to apply his judicial mind for the purpose of ascertaining as to whether the requisite conditions for initiating the proceeding exist or not

(9.) Learned Government Advocate submitted that Sub-section (1) does not say in so many words that the Collector should be satisfied about the existence of the dispute. According to me, merely because of the absence of expression like "if the collector is satisfied", it cannot be held that the reference to the Board is an automatic action, without any application of mind. It is well settled that where a particular statute vests power in a particular authority to initiate or not to initiate a proceeding on its own opinion, still it can be shown that those circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefrom, suggestive of the aforesaid things. In other words, the opinion can be challenged on the ground of non-application of mind or perversity, or on the ground that it was formed on collateral grounds and was beyond the scope of the statute. Reference in this connection may be made to the well known case, Barium Chemicals Ltd. v. Company Law Board (AIR 1967 SC 295 [LQ/SC/1966/132] ). In the case of the Purtabpur Co. Ltd. v. Cane Commr. of Bihar (AIR 1970 SC 1896 [LQ/SC/1968/359] ) it was pointed out that the Cane Commissioner while allotting sugarcane areas to different Sugar Factories, was exercising a quasi judicial power. Reference can be made in this connection, to the case of Province of Bombay v. Khusaldas S. Advani (AIR 1950 SC 222 [LQ/SC/1950/29] ) where it was pointed out that if a statute empowers an authority, not being a court in ordinary sense, to decide disputes arising out of a claim made by one party which is opposed by another party, then there is a lis and prima facie and in absence of anything in the statute to the contrary it is the duty of the authority to act judicially. Similarly, in the case of Shivji Nathubhai v. Union of India, (AIR 1960 SC 606 [LQ/SC/1960/12] ) it was observed that when the Central Government decides a review application under Rule 52 framed under the Mines and Minerals (Regulation and Development) Act, there could be no doubt that the Central Government is required to act judicially under Rule 54. In the case of Board of High School and Intermediate Education, U. P. Allahabad v. Ghanshyam Das Gupta (AIR 1962 SC 1110 [LQ/SC/1962/56] ) it was held that although there was nothing in the statute making express provision as to when the power has to be exercised, still the authority has to act as a quasi judicial body while exercising power under the statute. The Collector under the said section, after having initiated the proceeding, can prevent the landlord from ejecting the under raiyat until the disposal of the proceeding, which order shall be in the nature of an order of injunction. Then can it be said that he is perform-big only administrative functions. In my opinion, no sooner the Collector considers the question of initiation of a proceeding under Sub-section (1) on the basis of an information received by him or on the basis of an application made on behalf of the under-raiyat, a quasi judicial proceeding is initiated and all orders passed thereafter are to be passed consistent with the norms prescribed. I have no hesitation in holding that a proceeding under Section 48-E can be initiated only after the Collector is satisfied that one of the three requisite conditions exists. On what materials and in what manner the Collector shall be satisfied about existence of one or the other requisite conditions for initiation of the proceeding, no hard and fast rule can be laid down. It will depend on the facts and circumstances of each case.

(10.) Learned counsel appearing for the petitioner, while challenging the impugned order, submitted that even if it is held that the order for initiating a proceeding under Section 48-E of the Act, by the Collector, is of a quasi judicial nature, still for that he is not required to hear the landlord. In my view, this contention has to be accepted. Before passing an order the other side is to be heard only under two situations, (i) if it is required by the statute itself, or (ii) even in absence of an express provision, it is required under the principles of natural justice. So far as the present case is concerned, Sub-section (1) does not say that before initiation of the proceeding the landlord must be heard. This cannot be read even on the principles of natural justice because by merely initiating a proceeding no final order is passed affecting any of the rights of the landlord.

(11.) Learned counsel appearing for the respondent, however, submitted that there being no bar, if the landlord appears at his own and intervenes at the time of the initiation of the proceeding, he should be heard and it should be open to him to show that the information received by the Collector is false or that the application filed by the under-tenant is not a bona fide one. In my opinion, from the scheme of Section 48-E it is clear that it does not conceive two enquiries, one preliminary and other the final. If the applicant satisfies the Collector on the basis of the materials produced before him or the Collector is satisfied on the information received by him, then without waiting for the landlord he can initiate the proceeding. Of course, in some cases where the, claim on behalf of the under-tenant has been made by suppressing the material facts, like an order under Section 145 of the Code of Criminal Procedure between the same parties, upholding the claim of the landlord and negativing the claim of possession made by the under tenant, or a recent delivery of possession having been effected in favour of the landlord over the lands in question, then the landlord may bring to the notice of the Collector that the claim of the applicant lacks bona fide. But, the landlord can-not be permitted at that stage to convert the initiation of the proceeding, a mini trial or a parallel enquiry. He has to wait till the matter is placed before the Board.

(12.) Learned counsel appearing for the respondent then submitted that if the Collector is not required to verify and check the allegations and information regarding the claim of threatened dispossession, possession or dispossession at the time of initiation of the proceeding, then in many cases frivolous proceedings may be initiated at the instance of the enemies and so-called social workers causing great harassment to the landlord. I have already pointed out above that the Collector even at that stage is required to apply his judicial mind and he has to initiate a proceeding only if he is satisfied that the allegations regard-ing the existence of one of the three conditions are prima facie correct and bona fide. Even in the case of Ram Narain Singh (Supra) it mas observed by Shambhu Prasad Singh, J., that at the time of initiation of the proceeding the Collector must be satisfied that the dispute was a bona fide one.

(13.) Learned counsel appearing for the respondent then referred to some of the Bench decisions of this court where after allowing the writ applications, directions were given to the Collector concerned to hear both the parties and then to decide whether the dispute should be referred to the Board or not. Those cases are, M/s Jute and Gunny Brokers (Pvt.) Ltd. v. State of Bihar (1976 BBCJ (HC) 48), Lakshmi Thakur v. State of Bihar (1976-BBCJ (HC) 395) and Kapildeo Singh v. Chathu Lal Rai (1978 BBCJ (HC) 131). As petitioners of those cases had moved this Court and their writ applications were allowed, their Lordships directed, while remitting the cases back. to hear both.the parties, but on basis of those judgments it cannot be held that it is incumbent on the Collector to hear both parties for the purpose of ascertaining as to whether one of the requisite conditions mentioned under Sub-section (1) of Section 48E exists,

(14.) In the instant case, the Sub-divisional Officer acting as Collector, has not only heard both parties but he has looked into the documents and has considered the respective contentions advanced on behalf of both the parties at the stage of initiation of the proceeding. Admittedly, this case is not one of those cases where the landlord at his own initiative having appeared before the Collector has produced such a material which established the mala fide nature of the application filed on behalf of the petitioner. The impugned order itself shows that the Sub-divisional Officer has purported to adjudicate the respective claims of the parties and has negatived the claim of the petitioner after recording a finding. In such a situation, I am left with no option but to hold that the impugned order has been passed by adopting a procedure which is not sanctioned by law.

(15.) Accordingly, this writ application is allowed. The impugned order dated 24-1-1978 (Annexure-1) is quashed. The case is remitted back to the learned Sub-divisional Officer. He shall apply his judicial mind to the materials on the record which may include the application and documents filed on behalf of the petitioner as well as information received bv the learned Sub-divisional Officer from other sources like the police and the Project Executive Officer. Learned counsel appearing on behalf of respondent No. 3 pointed out that the reports bv the police and the Project Executive Officer disclose that the claim made on behalf of the petitioner is not at all sustainable. Learned Sub-divisional Officer shall consider all these aspects of the matter before passing an order whether a proceeding should be initiated or not. In the circumstances of the case, there will be no order as to costs. Birendra Prasad Sinha, J.

(16.) I agree with the order proposed. However, I should like to add a few lines of my own.

(17.) It has been held that a proceed-ing under Section 48-E can be initiated only after the Collector is satisfied that one of the three requisite conditions mention-ed in the section exists. It has been further held that the Collector while initiating a proceeding under Section 48-E has to apply his judicial mind and at this stage he acts in exercise of the quasi-judicial power. According to Webster, third new International Dictionary, the word initiate, among other things, means "to begin or set going; make a beginning of; perform or facilitate the first actions, steps, or stages or to bring about the initial formation of, originate, to mark the beginning of, to begin the instruction of in some field, lead to knowledge of elements or rudiments, foster the first steps or beginning progress of, aid in becoming familiar or knowing." This indicates that before a proceeding is initiated and the Collector decides to go further or make a beginning, he has to form an opinion. Once this is conced-ed, he cannot refuse to hear the land-lord in proper cases. It is true that at the stage of initiating a proceeding the Collector has only to find out a prima facie case and he is not required to have a mini trial. In a criminal proceeding when a complaint is filed, under Section 200 of the Code of Criminal Procedure, a Magistrate is required to examine the complainant on solemn affirmation and examine the witnesses present, before issuing process. He must be satisfied on the materials disclosed in the petition of complaint, the statement of the complainant made on oath and the result of an enquiry under Section 202 of the Code of Criminal Procedure, about the existence of a prima facie case. There is no statutory bar for an accused person to come before the Magistrate at this stage and show that there is no prima facie case against him. But, according to the judicial pronouncements, it has been held that the accused has no locus standi before a process has been issued. That rule in my opinion, cannot be applied in a case under Section 48-E of the Bihar Tenancy Act. In a criminal case, the complainant is examined on solemn affirmation as soon as a complaint is filed and he makes himself liable for the consequences that may ensue in the event of a finding that the complaint was false or that the statement on oath had been made falsely. There is nothing of this kind in a proceeding under Section 48-E of the Bihar Tenancy Act. The person filing an application under Section 48-E, claiming himself to be a bataidar does not make himself liable for any punishment if, ultimately, it is found that the application was baseless and mala fide. In this context, the rights of the parties will have to be determined. In the case of Jute and Gunny Brokers v. State of Bihar (1976 BBCJ (HC) 48), a direction was given to the Collector to consider the matter afresh and for coming to a conclusion after hearing the parties, firstly, as to whether the petitioners of that case came within the exception or protection provided by Section 48C and, secondly, whether, on the facts as asserted by them it could be said that the proceedings are mala fide or not. The petitioners in that case were the landlords. On an application at the instance of respondent No. 2, a proceeding had been initiated under Section 48E of the Bihar Tenancy Act. The contention was that the claim put forward by the under-tenant was not bona fide and that the Collector had not applied his mind to the fact as to whether the landlords claim for exemption under Section 48C was sustainable or not. The Bench deciding that case directed the Collector to hear the parties, i.e., also the landlords, and if the finding on both the points was against the landlords then to constitute a Board under Section 48E. In another Bench decision of this Court, Lakshmi Thakur v. State of Bihar (1976 BBCJ (HC) 395), a similar direction was given to hear the landlord before instituting the proceedings and then to proceed to constitute a Board, if the finding went against the landlord. The decision in the case of Ram Narain Singh v. State of Bihar (AIR 1973 Pat 275 [LQ/PatHC/1972/143] ) is to the effect that if a false, frivolous and mala fide case is prima facie proved, then the proceeding shall have to be dropped. In order to prove that the case is frivolous and mala fide, in appropriate cases, opportunity may be given to the landlord at the time of the initiation of the proceeding itself. The decision in the case of Lakshmi Pd. Bhagat v. State of Bihar (1978 BBCJ (HC) 750) is also to the same effect. I agree with my learned Brother that Section 48E does not conceive of two enquiries but the Collector has to find out a prima facie case and, in finding out a prima facie case, he cannot shut out the landlord from appearing before him and showing that the proceeding sought to be initiated is mala fide and baseless. How it will be done will, surely, depend upon the facts of each case. Such proceedings are not aimed at harassing the landlord. No doubt, it is a beneficial legislation for safeguarding the interest of the bataidars but care must be taken that the landlords are not unnecessarily harassed at the hands of unscrupulous persons. The Collector should decide the matter as expeditiously as possible and see that the landlords do not drag on the matter on false pretexts. P.S. Sahay, J.

(18.) I had the advantage of going through the judgment of my learned brethren and I agree with the reasonings and conclusions arrived at by learned brother Nagendra Prasad Singh, J. that for initiating a proceeding under Section 48E of the Bihar Tenancy Act the Collector has only to see whether the three requisite conditions enumerated under Sub-section (1) of Section 48E have been satisfied or not. How he will be satisfied about it, is entirely for him to decide, and no hard and fast rule can be laid down. If the landlord appears and wants to be heard then Collector may hear him. But to allow the landlord to appear in all cases as a matter of right will not be the correct procedure. As my learned brother Birendra Prasad Sinha, J., has observed that the object of the provisions under Section 48-E of the Act is to safeguard the interest of the undertenants, who belong to weaker class, if landlords are allowed to appear in all cases at the initial stage then, in my opinion, their main object will be to delay the enquiry, by praying for time on some ground or the other which will be difficult for the Collector to refuse. The result will be that in most of the cases the under-raiyats will lose all interest in the case to their peril. Such proceedings should be dealt with expeditiously, both for the advantage of the under-tenants and the landlords, so that they may also know where they stand. That is all the more reason that the first stage of enquiry should not be time consuming because at later stages parties will have the full opportunity to place their case.