Ram Narain Singh v. State Of Bihar

SHAMBHU PD. SINGH, J.

(1.) These seven applications by the landlords under Articles 226 and 227 of the Constitution of India raise a common question as to vires of Section 48-E of the Bihar Tenancy Act (Act No. VIII of 1885) as amended by the Bihar Tenancy (Amendment) Act, 1970 (Act No. VIII of 1970). Therefore, they have all been heard together and are being disposed of by a common judgment.

(2.) Decision of the question whether Section 48-E of the Bihar Tenancy Act, as it now stands, is ultra vires or not does not depend on the facts stated in the petitions. Therefore, I do not propose to state the facts alleged by the petitioners in different writ applications at this stage. I would first deal with various contentions of learned counsel for the parties against and for the vires of the said section and thereafter briefly state facts of each case and also deal with any additional point arising for decision in them.

(3.) Section 48-A, as inserted by Section 4 of the Bihar Tenancy (Second Amendment) Act, 1955 (Bihar Act 24 of 1955), read as follows:--

"48-E. Power to restore to possession under-raiyat unlawfully ejected -- (i) If an under-raiyat is or has been ejected by his landlord from his tenancy or any portion thereof at any time after the 1st February, 1953, in contravention of Section 89, the Collector may, of his own motion or on application made in this behalf by the under-raiyat, initiate any proceeding for restoration of such tenancy or portion to the possession of the under-raiyat: Provided that, if such landlord has, in the opinion of the Collector, made a bona fide transfer, by sale or mortgage with possession, of any land comprised in the tenancy or portion from which the under-raiyat was ejected between the 1st February, 1953 and the 1st December, 1953, the proceedings shall be dropped in respect of such land. (2) When a proceeding is initiated under Sub-section (1), the Collector may refer the matter (hereinafter referred to as dis-pute) So a Board of Conciliation for promoting the settlement of the dispute between the under-raiyat and his landlord. (3) A Board of Conciliation (hereinafter referred to as Board) shall consist of a Chairman, who shall be the sarpanch of the Gram Cutchery, of the village where the disputed land lies and two members, one of whom shall be nominated by the under-raiyat and the other by his landlord within the time allowed by the Chairman: Provided that, where the sarpanch of the Gram Cutchery is himself a party to or is, in the opinion of the Collector, interested in the dispute, the Collector shall appoint one of the panchas of the Gram Cutchery to be the Chairman of the Board: Provided further that if there is no gram Cutchery in the village the Collector shall appoint any other person to be the Chairman of the Board. (4) The Chairman of a Board to which a dispute is referred shall give written notice to the under-raiyat and his landlord in such manner as he thinks fit and the Board shall make endeavours to bring about an amicable settlement of the dispute. (5) Where an amicable settlement of the dispute is brought about, the Board shall submit a report to that effect to the Collector within such time, not exceeding two months from the date of reference made under Sub-section (2) as may be allowed by the Collector in that behalf; and the Collector shall dispose of the proceedings in accordance with the terms of the report. (6) The report submitted under Sub-section (5) shall consist of a memorandum containing only the names of the parties, the description of the disputed land and the terms on which the settlement has been brought about and it shall bear the signature or thumb impression of the under-raiyat and his landlord and those of the Chairman and the members of the Board: Provided that failure on the part of any member of the Board to sign the report shall not affect the validity of the same. (7) If either the under-raiyat or his landlord fails to nominate any person under Sub-section (3), or any person who has been so nominated refuses to serve at any time on the Board or fails to attend any meeting of the Board without showing cause to the satisfaction of the Chairman, or where a Board does not succeed in bringing about an amicable settlement of the dispute under Sub-section (5), the Board shall return the records of the case to the Collector with a report containing the reason for doing so. (8) Where a Board has returned the record of a case under Sub-section (7), the Collector shall, after giving the parties interested a reasonable opportunity of being heard, make such enquiry as he deems necessary; and if the Collector is satisfied that the person alleged to have been ejected was an under-raiyat of the disputed land on the date of ejectment and he was ejected in contravention of Section 89, the Collector shall order that the landlord or, where any other person is in possession of the land comnrised in the under-raiyats tenancy or portion thereof under any claim derived from the landlord, such person shall restore the under-raiyat in possession of the tenancy or portion from which he was so ejected. (9) The order of the Collector under Sub-section (8) shall be in writing and state the grounds on which it is made and specify the period, which shall not exceed six months from the date of order, within which the under-raiyat shall be put in possession of the tenancy or portion thereof. (10) If the landlord or any other person against whom an order has been made under Sub-section (8) fails to put the under-raiyat in possession of the tenancy or any portion thereof, within the period specified in the order the Collector shall, on the application of the under-raiyat and subject to any order on appeal under Section 48-F, evict the landlord or such other person in the prescribed manner and restore the under-raiyat in possession of such tenancy or portion."

Section 48-F dealing with appeals from an order passed under Section 48-E is as follows:--

"48-F. Appeals -- (1) An appeal shall He from an order referred to in Sub-section (8) of Section 48-E- (i) If such order is passed by an officer other than the Collector of a district, to the Collector of the district or to any officer specially empowered by the State Government by notification to hear such appeals, and, (ii) If such order is passed by the Collector of a district, to the prescribed authority. (2) The Collector of the district may, at any time, transfer any appeal filed before him to any officer specially empowered under Clause (i) of Sub-section (1) to hear such appeals, or withdraw any appeal pending before any officer so empowered, and either hear such appeal himself or transfer it for disposal to any other officer so empowered. (3) Appeals under this section shall be heard and disposed of in accordance with the prescribed procedure. (4) An order duly made under Section 48-E or an appeal under this section shall be final and shall not be called in question in any Civil Court. (5) If a suit is instituted challenging an order made Under Section 48-E or an appeal under this Section, the Civil Court, shall have no power, during the pendency of the suit, to stay the enforcement of such order."

By Act VIII of 1970 a new Section 48-E has been substituted for the section quoted above which reads as follows:--

"48-E. Prevention of a threatened ejectment of under-raiyat and restoration to possession of under-raiyat unlawfully ejected --(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, cither on the ground of non-existence of relation-ship 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 under-raiyat, initiate a proceeding for preventing the landlord from ejecting the under-raiyat or for settlement of the said dispute or for restoration of possession to 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. (4) A Board to be appointed by the Collector in the prescribed manner under Sub-section (3) shall consist of a Chairman, who shall be unconnected with the dispute referred to such Board or with any party directly affected by such dispute and two members to represent the parties to the dispute and the person appointed as a member to represent any party shall be appointed on the recommendation of the party: Provided that if any party does not nominate any person to represent him in the Board or nominates a person who is not available within such time as the Collector considers reasonable, the Collector may appoint such person as he thinks fit to represent that party. (5) If at any time before the Board has completed its work, the service of the Chairman or any member of the Board ceases to be available, or any member of the Board fails to attend the meeting of the Board on two successive dates without showing cause to the satisfaction of the Chairman, the Collector may appoint any suitable person in the prescribed manner to take his place and the proceeding shall be continued before such Board as so reconstituted. (6) The Chairman of the Board to which a dispute is referred, shall give written notice to the under-raiyat and his landlord in the preseribed manner and the Board shall make endeavours to bring about an amicable settlement of the dispute and when an amicable settlement of the dispute is brought about, the Board shall forthwith submit a report containing the terms on which settlement had been brought about, to the Collector, who may dispose of the proceeding in accordance with the terms of the report: Provided that failure on the part of any member of the Board to sign the report shall not affect the validity of the same. (7) Where a Board does not succeed in bringing about an amicable settlement of the dispute, it shall 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 terms of the findings: Provided that failure on the part of any member of the Board to sign the finding shall not affect the validity of that finding: Provided further that if any member does not want to sign the findings of the Board he will submit his disagreement on the findings in writing failing which the Chairman will submit his notes on the subject. (8) In case of disagreement with the report of the findings of the Board, the Collector shall, after recording the reason for such disagreement and after giving the parties concerned a reasonable opportunity of being heard, make such enquiry, if any, as he thinks necessary and on being satisfied that- (i) the person threatened with ejectment is an under-raiyat, the Collector shall declare the threatened ejectment illegal and direct that the landlord shall not interfere with the possession of the under-raiyat in his tenancy or any portion thereof; (ii) the land under dispute is in the tenancy of the under-raiyat, the Collector shall declare possession of the under-raiyat and order the crop or produce, or the sale-proceeds thereof, as the case may be, to be divided between the under-raiyat and his landlord in accordance with the provisions of Sections 69 to 71 of the Act; (iii) the person alleged to have been ejected was an under-raiyat, of the disputed land on the date of ejectment and was ejected within twelve years before the commencement of proceeding under this section in contravention of Section 89, the Collector shall order that the landlord, or, where any other person is in possession of the land comprised in the under-raiyats tenancy or portion thereof under any claim derived from the landlord, such person shall restore the under-raiyat to possession of the tenancy or portion from which he was so ejected. (9) The order of the Collector under Sub-section (6), (7) or (8) shall be in writing and shall state the grounds on which it is made and specify the period which shall not exceed six months from the date of the order within which his order shall be carried. (10) If the Board fails to record its findings or transmit the records as required under Sub-section (7), 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 according to the provision of this section. (11) If the person against whom an order has been made under Sub-section (6), (7) or (8) fails to carry out the orders of the Collector within such time if any, as may be specified in the order or the order passed in appeal under Section 48-F, he shall, on a complaint filed by the Collector, be punishable with imprisonment which may extend to six months or with fine which may extend to one thousand rupees or with both: Provided that the Collector shall await the result of appeal filed under Section 48-F, for filing the complaint. (12) The Board shall have the same power regarding the summoning and attendence of witnesses and compelling the production of documents as a Civil Court has under the Code of Civil Procedure 1908 (V of 1908) and the Collector shall have general control and superintendence over the Board. (13) Save as expressly provided in this Act, no Civil or Criminal Court shall have any jurisdiction over the subject-matter of a dispute after a proceeding is initiated under Sub-section (1) by the Collector: Provided that nothing in this sub-section shall be deemed to affect the powers of a criminal court to take such action as may be necessary for preventing breach of the peace pending the final disposal of the proceeding by the Collector."

Section 48-F has been left unamended.

(4.) It has been contended by Mr. Kailash Roy, who has appeared on behalf of the petitioners in all these applications, that the section, as it stands now after the amendment of 1970, is hit by Article 14 of the Constitution as it is discriminatory in nature. According to learned counsel, the section leaves a discretion in the Collector and the under-raiyat in the matter of initiating a proceeding against the landlords without laying down any guidelines for the purpose with the result that while in similar circumstances a proceeding under the section may be started against one landlord, it may not be started against the other and a civil suit may be filed against him by the under-raiyat. He has submitted that a landlord against whom a civil suit will be filed by an under-raiyat will have certain advantages over the landlord against whom a proceeding under the said section with drastic consequences is initiated. In support of his submission that the provisions of the section are drastic, he has drawn our attention to Sub-section (11) which makes the disobedience of the order passed under the section an offence and provides for sentences of imprisonment extending to six months or fine extending to one thousand rupees or both. Further according to learned counsel for the accused Sub-section (13) which takes away jurisdiction of the Civil Court over the subject-matter of a proceeding initiated under the section is itself drastic. Learned counsel for the petitioners has further submitted that the section is discriminatory also on the ground that read with Section 48-F, an appeal can be filed only against orders passed under Sub-section (8) of the section but not against orders passed under Sub-sections (6), (7) and (10).

(5.) Learned Advocate-General appearing for the State has submitted that though Sub-section (1) of Section 48-F uses the word may so far the Collector is concerned, he has been left with no discretion in the matter of initiation of proceeding. If he comes to know either on an application of an under-raiyat or from other sources that any of the three circumstances mentioned in Sub-section (1) exists he must initiate a proceeding. According to him, Sub-section (1) does provide guidelines for the Collector in the matter of initiation of proceeding and the provisions of the section as a whole are not drastic. He has further submitted that under Section 48-F appeal can be filed against all orders of the Collector passed under the section except where he agrees with the report or the finding of the Board. Thus, according to him, there is no discrimination even in the matter of right of appeal.

(6.) Mr. Indu Shekhar Pd. Sinha, appearing on behalf of respondent No. 6 in C. W. J. C. No. 1522 of 1971, has submitted that as a result of the amendment of the year 1970 the jurisdiction of the Civil Court has been completely taken away with regard to matters in respect whereof a proceeding can be initiated under the section. According to him, the Bihar Tenancy Act confers certain rights on the under-raiyats and this section provides a special remedy for the enforcement of those rights; hence the remedy of the under-raiyats for enforcement of those rights by a suit has been taken away. With reference to Sub-section (13) he has uregd that that refers only to pending litigations which were instituted before the amendment. He has further submitted that Article 14 of the Constitution can be called in aid only when there is a discrimination by the State; assuming that the section confers a right on the under-raiyats either to make an application before the Collector for initiation of a proceeding under this section or to institute a suit before a Civil Court, the discrimination will be by private party and Article 14 is not attracted to such a case. He has supported the contention of learned Advocate-General that the provision contained in Sub-section (1) for initiation of a proceeding by the Collector is imperative and not merely permissive.

(7.) I propose to deal first with the question whether the provision contained in Sub-section (1) of Section 48-E for initiation of a proceeding by the Collector is imperative or merely permissive. No doubt, the legislature has used the word may in this sub-section which is generally understood as enabling and not mandatory. But many a time it is also construed as imperative and obligatory. It is now well-settled that 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 Frederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford: The Rev. Thomas Thellusson Carter, (1880) 5 AC 214. The Lord Chancellor (Earl Cairns) after referring to earlier English Decisions on the point summarised the law as follows:--

"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".

The Lord Chancellor also observed:--

"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".

(8.) The classical observations of the Lord Chancellor (Earl Cairns) have been followed in numerous later English decisions which need not be referred to and are noted in the Maxwell on Interpretation of Statutes while dealing with the word may in the Chapter headed Exceptional Construction. The observations were followed by the Judicial Committee in Alcock, Ashdown and Co. Ltd. v. Chief Revenue Authority of Bombay, 50 Ind App 227 = ILR 47 Bom 742 = (AIR 1923 PC 138) where Lord Phillimore held that the word may under Section 51 of the Income-tax Act, 1918, was imperative and the Commissioner of Income-tax was bound to state a case for opinion of the High Court when called upon by an assessee to do so if conditions mentioned in the said section were satisfied. The decision in Alcock Ashdown and Co. Ltds. case, was approved and followed by the Supreme Court in Chief Controlling Revenue Authority v. Maharashtra Sucar Mills Ltd., AIR 1950 SC 21S. In this case Kania, C. J., held that the word may in Section 57 of the Stamp Act was to be construed as imperative and the decision of the Bombay High Court directing the Chief Controlling Revenue Authority and the Superintendent of Stamps at Bombay to state a case for the opinion of the Court under the aforesaid section was correct.

(9.) Sub-section (1) of Section 48-E of the Act specifically lays down the conditions when a proceeding under the section has to be initiated by the Collector. They are (1) when an under-raiyat is threatened with unlawful ejectment from the tenancy or any portion thereof by his landlord or (2) 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 between them or otherwise or (3) if an under-raiyat is or has been ejected from his tenancy or any portion thereof within 12 years before the commencement of the proceedings under this section in contravention of the provisions of Section 89. The section was re-enacted for the benefit of the under-raiyats. The object for the amendment of Section 48-F by Bihar Act VIII of 1970 is stated as follows:

"Object:-- Under Section 48-F of the Bihar Tenancy Act, 1885 the power to restore an under-raiyat to possession of the tenancy can be exercised by the Collector only after he is or has been unlawfully ejected. It has been found that after actual unlawful ejectment of the under-raiyats, it becomes very difficult for them to take legal steps for getting the land restored. Hence it has been considered necessary to empower the Collector to take preventive measures in the event of threatened ejectment and refer the dispute between the under-raiyat and his landlord to a Board for promoting a settlement and also to make the disobedience of the order of the Collector in this regard a penal offence".

In my opinion, therefore, the power of initiating a proceeding is deposited with the Collector, a public officer, for the purpose of being used for the benefit of persons, namely, under-raiyats who are specifically pointed out and with regard to whom a definition is supplied by the Legislature of the conditions upon which they arc entitled to call for its exercise. Thus, the rule laid down by the Lord Chancellor (Earl Cairns) in Frederic Guilder Juliuss case (1880) 5 AC 214 is applicable to the case before us. The power conferred by this section is coupled with the duty of the Collector, the person to whom it is given to exercise it. It has, therefore, to be construed as imperative. Whenever the Collector comes to know of the existence of any of the three, conditions, either suo motu or on an application of an under-raiyat, he is duty bound to initiate a proceeding. On this interpretation, it is not possible for the Collector to discriminate between one landlord and the other.

(10.) Mr. Kailash Roy, learned counsel for the petitioners has, however, further urged that even if it be held that there is no scope for discrimination at the hands of the Collector with regard to initiation of proceeding, there may be discrimination between one landlord and the other for the section does not completely take away the power of the under-raiyat to institute a suit before a Civil Court. In other words, according to him, the enactment is supplemental and not substitutive and merely provides for an additional remedy to the under-raiyats. He has contended that while one under-raiyat may make an application before the Collector for institution of the proceeding, the other may institute a suit and on that account the landlord against whom the proceeding is initiated is discriminated inasmuch as he will be subject to the drastic procedure of the impugned section, whereas the landlord against whom the suit is instituted will be entitled to the benefits of the ordinary law of the land. While dealing with this contention of Mr. Roy, it will be necessary to dispose of first the submissions of Mr. Indu Shekhar Prasnd Sinha that impugned section is substitutive and after its enactment it is not open to an under-raiyat to institute a suit before a civil court. In support of his submission Mr. Sinha has strongly relied on the use of the word "after" in Sub-section (13) of Section 48-F. According to him, Sub-section (13) refers to only pending proceedings in civil and criminal courts. In my opinion, it is not possible to accept this submission of Mr. Sinha. On a plain construction, this sub-section means that after a proceeding is initiated under Sub-section (1) of Section 48-E, except for express provisions in the Act, civil and criminal courts shall have no jurisdiction over the subject-matter of dispute in the proceedings. In other words it expressly debars institution of a suit in respect of property which is subject-matter of a dispute in a proceeding. If the intention of the Legislature would bave been to make Sub-section (13) applicable to only pending proceedings, it would have been specifically stated in the section that civil or criminal court shall cease to have jurisdiction in pending proceedings over subject-matter of a dispute in respect whereof a proceeding under Sub-section (1) is initiated. Provisions of a statute are ordinarily to be given a plain meaning and words thereof are to be given exceptional construction only in certain limited circumstances.

(11.) Mr. Indu Shekhar Prasad Sinha has also relied on the rule of interpretation that if a statute confers a right and itself provides a remedy for that right, then other general remedies are not available to the person in whose favour the right is created. As it appears from the object of Bihar Act VIII of 1970 already quoted, Section 48-E was re-enacted to prevent unlawful ejectment of under-raiyats. In my opinion, the right of an under-raiyat to remain in possession so long as he is not lawfully ejected is not a creation of the Bihar Tenancy Act. Every tenant, be he a raiyat or an under-raiyat, is entitled to remain in possession of his tenancy lands till lawfully evicted therefrom even under the general law. Therefore, the very basis on which Mr. Sinha built up this argument does not appear to be correct; unless it is expressly provided for, statutes are not to be interpreted so as to exclude the general remedy available to the citizens under the law of the land. Section 48-E, in my opinion, does not completely take away from the under-raiyats the right to institute a suit before the civil court. It merely confers upon them an additional remedy of getting a proceeding under Sub-section (1) of that section initiated. So long the proceeding is not initiated, he can institute a suit. But once a proceeding is initiated, the jurisdiction oJ the civil court or criminal court over the subject-matter of the proceeding is taken away. Thereafter no suit can be instituted in respect thereof. In other words, the remedy provided by Section 48-E to an under-raiyat is merely supplemental and not substitutive.

(12.) Mr. Kailash Roy has placed strong reliance on the decision of the Supreme Court in Northern India Caterers (Pvt.) Ltd. v. State of Punjab, AIR 1967 SC 1581 . In this case Section 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act was held to be discriminatory and violative of Article 14 of the Constitution. Their Lordships found that the Act did not repeal remedy of eviction under ordinary law and Section 5 conferred an additional remedy over and above the remedy by way of suit leaving it in the unguided discretion of the Collector to resort to one or the other and to pick and choose some of those in occupation of public properties and premises for the application of more drastic procedure under that section. According to Mr. Roy Where some one else (in this case an under-raiyat) is given a power of election and thereby to exercise his will arbitrarily by instituting a proceeding under the section or a suit, the person, for example the landlord, against whom the power is exercised by initiation of a proceeding under Section 48-E of the Act is discriminated inasmuch as he is deprived of his right to avail of the benefits under the general law. It has been observed in the aforesaid case that discrimination would result, if there are two available procedures one more drastic and prejudicial to the parties concerned than the other and which can be applied at the arbitrary will of the authority. Both Mr. Roy and Mr. Sinha rely on this observation -- Mr. Roy on the availability of two procedures and Mr. Sinha on the expression authority. It is not disputed by Mr. Roy that where two forums are available to a person for ventilating his grievances, both with different procedures, it is for the person who goes to the court or authority first to choose the forum and the other side has to follow him and cannot make a grievance of discrimination merely on the ground of availability of two forums to his opponents. Question of discrimination would arise only if one of the procedures available at the two forums is more drastic or prejudicial to the party concerned. Mr. Sinha also does not dispute that if the statute itself per se discriminates between two persons or groups of persons, in the absence of an intelligible differentia and reasonable nexus with the object sought to be achieved by the enactment, it is hit by Article 14 of the Constitution, but his contention is that Bihar Act VIII of 1970 does not make any per se discrimination, nor there is any scope for discrimination by the authority and it cannot be held to be bad on account of any discrimination which may per chance be made at the instance of an under-raiyat. According to him, it is unlikely that any under-raiyat would not avail of the speedier remedy under Section 48-E. Before deciding the question whether Article 14 of the Constitution can be attracted to a case of discrimination at the instance of a private party, I would like to examine the question whether the procedure available in the proceeding under this section is more drastic or prejudicial to the landlord than the procedure available under a regular suit.

(13.) In support of his contention that the procedure available in a proceeding under Section 48-E is more drastic or prejudicial to the landlord, Mr. Kailash Roy has first drawn our attention to Sub-section (11) which makes disobedience of the Collectors order an offence and punishable with imprisonment or fine or both. The provision contained in this sub-section, no doubt, is drastic, but really it does not relate to a procedure in the proceeding itself. A complaint has to be filed by the Collector for the prosecution of the person disobeying his order and the trial is to take place before a regular criminal court. According to Mr. Roy, the discrimination lies in the fact that while the landlord against whom the under-raiyat does not get a proceeding under this section initiated but institutes a suit will not be liable to criminal prosecution for disobedience of the orders of the Civil Court, the landlord against whom a proceeding is initiated under the section is made liable for criminal prosecution by this sub-section. The sub-section is severable from other provisions of the section. As the Act does not take away the! general remedy available to an under-raiyat by a civil suit and makes the landlord liable for criminal prosecution for disobedience of the Collectors order in the proceeding while he is not made liable for the disobedience of the Civil Courts order in the suit, Sub-section (11) being drastic and prejudicial to the landlord is discriminatory and ultra vires. It has been contended by learned Advocate-General and Mr. Indu Shekhar Prasad Sinha that a landlord disobeying a civil courts order may also be made liable for being sent to jail for contempt of court and, therefore, Sub-section (11) is not discriminatory. Courts rarely exercise their powers for contempt of Court for sending a person to jail and that cannot be treated at a par with the conviction and sentence at a regular criminal trial as contemplated by this sub-section. Subsection (11), therefore, has to be struck down.

(14.) I next take up for consideration the Question whether apart from Sub-sec-tion (11), the procedure followed in a proceeding under Section 48-E can be said to be drastic and prejudicial compared with the procedure to be followed in a civil suit. There is nothing in Sub-section (1) itself which can be said to be drastic or prejudicial to the landlord. The first part of Sub-section (2) confers on the Collector powers similar to that of granting injunction by civil courts and the second part of it is similar to Sub-section (8), of Section 145 of the Code of Criminal Procedure. Therefore, provision of Sub-section. (2) cannot be said to be more drastic or prejudicial to the landlord on the face of it. However, it has been contended by Mr. Kailash Roy that remedies open to a person to file an appeal against an order of injunction by a civil court or to move this Court under Section 115 of the Code of Civil Procedure are not available to the landlord against an order passed under Sub-section (2). True it is that these remedies may not be available to the landlord against an order under Sub-section (2), but on that account the provision of the section cannot be held to he drastic or prejudicial to the landlord. The section provides for speedier remedy. Sub-section (10) lays down that the Board to which the dispute is referred must record its find- ings or transmit the records within a period of six months from the date of its appointment and in case it fails to do so, the Collector may withdraw the proceeding and decide the dispute himself. An appeal against an order of injunction or a revision against such an order, it is common knowledge, takes much more time for their disposal than six months. In the circumstances, absence of provision for an appeal or revision against an order under Sub-section (2) cannot be a ground for holding that provisions of that sub-section are drastic or prejudicial to the landlord. Sub-sections (3) to (7) deal with the reference of the dispute to the Board and its disposal by it. The function of the Board appears to be just like arbitrators. It is to be constituted of a Chairman to be appointed by the Collector and two members to represent the parties to the dispute. The members are to be appointed on the recommendation of the parties. Only when the party fails to recommend any person for membership of the Board, the Collector may appoint any person as he thinks fit to represent that party. The Board has to make endeavours first to bring about amicable settlement of the dispute. If no amicable settlement is reached the Board is empowered to make enquiry into the matter and receive such evidence as it considers necessary and record its findings. Even in civil suits the subject-matter of dispute may be referred to arbitration if the parties agree and make an application for that. Only difference between the two is that in the case of a proceeding under Section 48-E there is provision for compulsory reference to arbitration. On the basis of that fact alone the provisions cannot be held to be drastic or prejudicial to the landlord.

(15.) It has been contended by Mr. Kailash Roy that the discrimination is there because there is no provision for challenging the order of the Board passed either under Sub-section (6) or Sub-section (7) either by filing an appeal or in any other manner. Sub-sections (6) and (7) empower the Collector to pass an order according to the reports and findings of the Board. It is similar to Section 17 of the Arbitration Act which empowers the civil court to pronounce judgment according to the award. Section 17 further lays down that no appeal shall lie from a decree following the judgment so pronounced except on the ground that it is in excess or otherwise not in accordance with the award. If the Collector disagrees with the award, then the order passed by him will be one under Sub-section (8) and an appeal lies against such an order under Section 48-F. Thus prima facie there appears no difference between the remedy available to the landlords against the Collectors orders when it is in excess of or not otherwise in accordance with the award and the remedy available to them against such a judgment and a decree of the civil Court under Section 17 of the Arbitration Act However, elaborating his aforesaid contention Mr. Kailash Roy has submitted that if there is any misconduct etc. by the arbitrators, the party aggrieved by the award may make an application for setting it aside and there is no such remedy available against the award of the Board in a proceeding under Section 48-E. According to him, there may also be cases in the proceeding where the members of the Board may misconduct themselves or that they may even incorrectly state that there has been an amicable settlement of the dispute between the parties. In my opinion, the aggrieved party be he an under-raiyat or a landlord is not left without a remedy in such cases. The bar imposed on the jurisdiction of the civil Court under Sub-section (13) is subject to other express provisions of the Bihar Tenancy Act. Sub-section (4) of Section 48-F says that an order duly made under Section 48-E or an appeal under this section shall be final and shall not be called in question in any civil Court. The effect of Sub-section (4) of Section 48-F, in my opinion, is that if an order is unduly made under Section 48-E or in an appeal under Section 48-F, it shall not be final and can be called in question in a civil Court. Sub-section (5) of Section 48-F lays down that if a suit is instituted challenging an order made under Section 48-E or an appeal under the section the civil Court shall have no power during the pendency of the suit to stay the enforcement of such order. This sub-section also makes it clear that a suit can be instituted challenging an order made under Section 48-E if that order is not duly made. The provisions of Sub-sections (3) to (7) of Section 48-E, therefore, in my opinion, cannot be held to be drastic or prejudicial to the landlord.

(16.) With reference to Sub-section (8) of Section 48-E, Mr. Kailash Roy has urged that because this section or any rules made by the State Government do not provide for following the procedure laid down in the Code of Civil Procedure in an enquiry by the Collector, it is discriminatory, for the landlord against whom a proceeding under the section is instituted is deprived of the advantage of the procedure available to him in a suit. Sub-section (8) says that the Collector can make an enquiry only after giving the parties concerned a reasonable opportunity of being heard. In Khem Chand v. Union of India, AIR 1958 SC 300 , it was observed:--

"the reasonable opportunity envisaged by the provision under consideration includes : (a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and tbe allegations on which such charges are based ; (b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself of any other witnesses in support of his defence; and finally (c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant."

According to Mr. Kailash Roy, these observations were made with reference to Article 311 of the Constitution in case of a Government servant and, therefore, they cannot be applied to the case before us. There appears no reason why the meaning attributed to the expression "the reasonable opportunity of being heard" with reference to Article 311 of the Constitution in (a) and (b) of the aforesaid observation in the aforesaid case be not attributed to the same expression in this section. Hence, the landlords do get an opportunity of filing a written statement and of cross-examining the witnesses produced by the under-raiyat and examining witnesses including themselves in support of their case. They must also have a right to produce documentary evidence in support of their case and make submissions before the Collector. Thus, the procedure to be followed in an enquiry under Section 48-E is not much different than the procedure followed in a civil suit, of course with this difference that the enquiry in the proceeding will be of a summary nature as the main purpose behind the enactment is to provide speedier remedy to the under-raiyats. Sub-section (9) also requires the Collector to make his order under Sub-sections (6), (7) or (8) in writing and to state the grounds on which it is made. This also indicates that the order of the Collector must be like a judgment in a civil suit.

(17.) Mr. Kailash Roy has attempted to make much out of the fact that Section 48-F provides for an appeal only against an order under Sub-section (8) and not Sub-section (10) of Section 48-E, and according to him, this fact itself is sufficient to show that the section is discriminatory. Sub-section (10) lays down that if the Board fails to record its finding or transmit its record as required in Sub-section (7) 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 according to the provision of this section. In my opinion, therefore, really no order is passed by the Collector on the merits of the case under Sub-section (10). The order passed by the Collector under that sub-section is only for withdrawing the proceeding from the Board. Thereafter he proceeds to decide the dispute in accordance with the provisions of Section 48-E, i.e., in accordance with the provisions of Sub-section (8). Thus, after a proceeding is withdrawn under Sub-section (10), the order passed by the Collector on merit of the case is one under Sub-section (8) and it is appealable under Section 48-F. The section cannot, therefore, be held discriminatory on this ground either. Mr. Roy has not been able to point out any other difference between the procedure to be adopted in the the proceeding and to be followed in a civil suit. After having given my anxious consideration to arguments advanced by learned counsel for the parties, I am of the opinion that apart from Sub-section (11) which is scverable, no other part of Section 48-E is drastic or prejudicial to the landlord. The rule laid down by the Supreme Court in the Northern India Caterers (Pvt) Ltd.s case AIR 1967 SC 1581 is not of much help to the petitioners and except Sub-section (11) no other part of Section 48-E can be held to be ultra vires on the ground that it is discriminatory in nature. In view of this finding it is not necessary to decide the question whether Article 14 of the Constitution can be attracted to a case of discrimination at the instance of a private party such as under-raiyat in the instant case.

(18.) Some arguments were also advanced before us as to legality of the rules framed under Section 48-E and of a circular letter issued by the State Government which has been made annexure to these petitions. The section itself, excluding Sub-section (11), has been held to be intra vires. I find nothing in the rules or the circular letter to justify quashing thereof.

(19.) I now propose to deal with facts of the cases before us and also with any additional point arising for decision in them. C. W. J. C. Nos. 1481 to 1485 of 1971 In all these five applications the petitioners are the same. They have prayed for quashing of annexure 3 to the petition. Six cases were filed before the Deputy Collector Incharge Land Reforms (hereinafter referred to as D. C. L. R.), Sadar, Muzaffarpur, who, it appears, has been vested with the powers of a Collector for the purposes of Section 48-E. They were numbered as case Nos. 1 to 6 of 1971-72. Case No. 1 was withdrawn and in the other cases a common order annexure 3 has been passed. In the order there is no mention of case No. 3. It appears to have so happened on account of the mistake in numbering the petitions. C. W. J. C. 1481 arises out of case No. 2, 1482 of case No. 5 and 1483 of case No. 6. In each of case Nos. 1484 and 1485 the number of case from which they arise, as mentioned in annexure 3, the copy of the order, is 4. The name of the petitioner in the case from which C. W. J. C. 1484 arises is Nawal Kishore Pandey while the name of the petitioner in the case from which C. W. J. C. 1485 arises is Raghubir Kapar. Only one of these cases should have been numbered as 4 and the other as 3. In each of the five cases the petitioner before the D. C. L. R. claimed to be an under-raiyat of the petitioners before this Court. They are respondents No. 3 in these writ applications. In their show cause, filed before the D. C. L. R., the petitioners (before this court) claimed that they were recorded in possession of the plots in dispute in the re-visional survey records-of-right. In the cases out of which C. W. J. C. Nos. 1481 and 1434 arise they further claimed that the lands in dispute were under attachment by an order passed under Section 145 (4) of the Code of Criminal Procedure. They also challenged the assertion of respondent No. 3 in each of the five cases that they were under-raiyats and jurisdiction of the D. C. L. R. to initiate proceeding under Section 4S-E. The D. C. L. R. has held that he has got jurisdiction to initiate the proceeding and also pass an order under Sub-section (2) of Section 48-E restraining the petitioners from evicting the under-raiyat. According to the petitioners, the D. C. L. R. could not initiate a proceeding under Section 48-E unless after a preliminary enquiry he found prima facie that respondent No. 1 of each case was an under-raiyat. In my opinion, the learned D. C. L. R. has rightly overruled this contention. One of the conditions for starting a proceeding under the section is existence of a dispute between the under-raiyat and his landlord over possession of land, crop or produce thereof either on the ground of non-existences of relationship of landlord and tenant between them or otherwise. Even a dispute over possession on the ground of non-existence of relationship of landlord and tenant between the two is sufficient for initiating the proceeding. Hence, for this condition, if there is a dispute, a person claiming as under-raiyat, irrespective of the fact whether in fact he is under-raiyat or not, will for the purposes of initiating the proceeding be deemed to be an under-raiyat. Of course, the dispute must be a bona fide dispute. However, before passing an order restraining the landlord from evicting an under-raiyat, the Collector must be satisfied that the under-raiyat is in possession. If the under-raiyat is not in possession, the question of evicting him does not arise. In the show cause of the petitioners, the factum of possession of the under-raiyats was challenged and in support of that allegation reliance was placed on the records-of-right and order of attachment under Section 145 (4) of the Code of Criminal Procedure, fn the circumstances, in my opinion, the D. C. L. R. ought to have applied himself to the question of factum of possession before passing an order restraining the petitioners from evicting respondent No. 3 in each case and that part of the order of the D. C. L. R. must be quashed. C. W. J. C. No. 1522 of 1971 In this case the prayer by the petitioners who are landlords is for quashing the order contained in annexures 6, 9 and 10 and the circular contained in annexure 12. Annexure 6 contains the order initiating the proceeding and issuing notice to the petitioners. Annexure 9 is the order nominating the Chairman of the Board and directing the parties to nominate their representatives on the Board as members. Annexure 10 contains further orders in the case. In this case there is no order passed under Sub-section (2) of Section 48-E and there appears to be no error in the order initiating the proceeding. C. W. J. C. No. 1560 of 1971. In this case the petitioners pray for quashing of the order contained in Annexure 4. It contains the order initiating the proceeding as well as an order directing the Mukhiya and Sarpanch of the Village Pan-chayat to protect the paddy on the disputed land, get it cut and keep it with themselves. In this case also there appears no error in the order of the Collector initiating the proceeding. There is also no order restraining the petitioners from evicting the under-raiyat. The order passed is under the second part of Sub-section (2). Grievance of the petitioners is that the Collector has not applied himself to the facts of the case. That does not appear to be correct. He has applied himself to the facts of the case before passing the impugned order under Sub-section (2) and there appears nothing wrong with that part of the order as well.

(20.) In the result, all the seven writ applications are allowed in part to the extent that Sub-section (11) of Section 48-E of the Act is declared ultra vires. C. W. J. C. Nos. 1481 to 1435 further succeed to the extent that part of the order of the D. C. L. R. restraining the petitioners from evicting the respondent No. 3 of each case is also quashed. He may pass such an order only after satisfying himself as to the factum of possession of the under-raiyat concerned. The applications do not succeed in other respects. In the circumstances of the case, there will be no order as to costs.