K.B.N Singh, C.J & P.S Sahay, J.:— As common questions of law and fact are involved in all these sixteen writ applications, with consent of patties, they have been heard together and are being disposed of together by this common order.
2. The petitioners claim to be bataidars in respect of the lands in dispute in each of these wit applications and they have, prayed for quashing an order of the Additional Collector dated the 3rd June, 1977; setting aside the order of the Deputy Collector Incharge Land Reforms (respondent no. 2) passed under Sub-section (7) of Section 48E of the Bihar Tenancy Act (hereinafter referred to as “the Act”) near about the same period in May 1975. The petitioners in these writ applications filed applications under Section 48E of the Act claiming to be bataidars in respect of the lands mentioned in the applications, the details of which need not be mentioned. On receipt of the applications respondent no. 2 constituted a Batai Board and referred the matter to the Board. On 29th April, 1976, the Board submitted its recommendation to the effect that the petitioners claim to be bataidars in respect of the lands was correct. Respondent no. 2 accepted the recommendations of the Board in all the cases and confirmed the findings of the Board under Sub-section (7) of Section, 48E of the Act. The land owner who is respondent no. 3 in each of the writ applications, filed appeals before the Additional Collector purported to be under Section 48F of the Act and the appeals were heard together and the Additional Collector by his order dated 3rd June, 1977, allowed the appeals and remanded the matter to respondent no. 2 for a fresh consideration in accordance with law. It is against this order of the Additional Collect for that all these writ applications have been filed and the main ground taken in all these writ applications is that no appeal lay before the Additional Collector, and, therefore, the order of the Additional Collector was wholly without jurisdiction. A counter-affidavit has been filed on behalf of respondent no. 3 alleging illegality committed by respondent no. 2 in the constitution of the Batai Board and the failure on the part of the Board to comply with the mandatory provision to effectuate compromise between the parties on which ground alone the findings of the Board and the order of respondent no. 2 were wholly illegal. Other facts which are relevant will be referred to in course of the judgment.
3. Mr. Yogesh Chandra Verma, counsel on behalf of the petitioners, has urged that the order of the Deputy Collector Incharge Land Reforms (respondent no. 2) having affirmed the finding of the Board under Sub-section (7) of Section 48E and being not one of disagreement under Sub-section (8) of Section 48E, no appeal lay against that order and the order became final. There is substance in the submission of learned counsel. The appeal is provided only when an order is passed under Sub-section (8) of Section 48E as provided under Section 48F of the Act find was so held by a Bench of this Court in the case of (1) Jai Ram Das Bhatia v. Harinandan Singh (1976 B.B.C.J 476). It is, therefore, manifest that the order of the Additional Collector in all these cases is without jurisdiction.
4. Mr. Shree Nath Singh, however, appearing on behalf of respondent no. 3, has urged that the constitution of the Board is vitiated on account of non compliance with the mandatory provisions of the Act and the Rules and the finding of the Board and the order of respondent no. 2 having been arrived at in gross disregard of the mandatory provisions are wholly illegal. Learned counsel has therefore, submitted that quashing the order of the Additional Collector though illegal will amount to restoring another order which is equally illegal. In support of his submission, Mr. Shree Nath Singh has referred to the affidavit and the documents filed on behalf of respondent no. 3 in C.W.J.C No. 1124 of 1977 to which we shall refer in course of the judgment which are common to all the cases. The first illegality alleged to have been committed by respondent no. 2 in the constitution of the Board is that by order dated 12-8-75 respondent no. 2 appointed the Anchal Adhikari, Kharagpur, as the Chairman of the Board without giving the landowner any opportunity to object against the appointment. Learned counsel relied on Rule 2 of the Rules framed under the Act, which lays down that the Collector will nominate a person to be the Chairman of the Board and simultaneously ask both the landlord and the under-raiyat to indicate within three days of his order, whether they have any objection in the nomination on the ground that the Chairman nominated has any connection with the dispute or with any of the party directly affected by the dispute and the party raising an objection to the appointment will be heard by the Collector and if the objection is found to be valid, another person will be nominated as the Chairman. Similar objection will be invited regarding the appointment of the next Chairman. That not having been done, the constitution of the Board is invalid and this illegality will vitiate the finding of the Board.
5. Learned counsel appearing on behalf of the petitioners has urged that the land-owner (respondent no. 3) having appeared before the Collector under the Act but not having raised any objection before him to the appointment of the Chairman of the Board, it must be taken that the landowner accepted that the Chairman was not in any way biassed against him, and, therefore, the Chairman must be taken to be a person unconnected with the dispute as well as with any party directly affected by the dispute. The requirement of Sub-section (4) of Section 48E of the Act is that the Chairman to be nominated by the Collector in the prescribed manner should be a person unconnected with the dispute or with any party directly affected by such dispute. Rule 2 of the Rules requires that as soon after the proceeding under Section 48E(1) is initiated as possible, the Collector will nominate a person as Chairman and will ask the land owner and the under-raiyat to raise objection, if any, within three days, to the nomination of the Chairman on the ground of his connection with the dispute or the parties concerned. In the instant case, the landowner not having raised such objection at any early stage and possibly had taken a chance for an order in his favour from the Board; Cannot now be permitted to turn round and raise such objection at a later stage. True it is that if the landowner had unsuccessfully raised such an objection before the Collector at an early stage of the proceeding before him, not necessarily within the pried of three days as prescribed by the rules, this Court if moved would have perhaps quashed the order of the Collector rejecting the objection in an appropriate case. But that is not the position in the instant case. We are, however, not suggesting, for a moment, that the requirement of the rule of a proper notice to file objection to nomination of Ghairman is not meant to be strictly followed by the Collector under the Act. But waiver of lacuna, if any. In such notice can be inferred. In an appropriate case.
(sic).
6. The next contention of Mr. Shree Nath Singh is that the finding of the Board is vitiated on account of the failure on the part of the Board to make endeavours to bring about an amicable settlement of the dispute which is fatal to the proceeding, being contrary to Sub-section (6) of Section 48E of the Act. Sub-section (6) on which reliance is placed, may use-fully be reproduced:—
“The Chairman of the Board to which a dispute is referred, shall give written notice to the under-raiyat and his landlord in the prescribed manner and the Board shall make endeavors 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. From the aforesaid provisions it is apparent that after the matter is referred to a Board, which is in the nature of an Arbitration Board, the first thing that the Board is required to do is to notice the parties and make endeavors to bring about an amicable settlement of the dispute between the parties. If the Board succeeds in bringing about an amicable settlement, the Board is required forthwith to submit a report containing the terms of settlement and the Collector thereafter is to dispose of the proceeding in accordance with the terms of the report.
8. It is only where the Board does not succeed in bringing about an amicable settlement of the dispute, the Board under Sub-section (7) of Section 48E is to make enquiry regarding the claim of the bataidar. Sub-section (7), which is relevant in this regard, may also be usefully quoted:
“Where a Board does not succeed in bringing about an amicable settle-merit 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 the 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.”
9. From the aforesaid provisions it is manifest that the provision with regard to endeavour by the Board for an amicable settlement is a “must” and without making such an effort the Board cannot assume jurisdiction to enquire into the matter referred to the Board. From the Order sheet of the Batai Board, which is Annexure ‘C’ to the supplementary affidavit to the counter-affidavit filed by respondent no. 3, it is apparent that the Board had not made any endeavour for amicable settlement before entering upon the enquiry. Such an effort, if any, had been made after examination of the witnesses, which is not, the proper stage for it. From the order dated 6.4.76 (Annexure C), last paragraph, it appears that 12.4.76 was fixed as the date for the Board to make recommendation and it is mentioned therein as follows:
“IS BICH DONO PANCH is BAD KE SAMBANDH ME EK MAT HONE KI KOSHIS KARENGE”.
10. This will not amount to endeavours on the part of the Board to bring about an amicable settlement. It will amount to the Chairman asking the two Panches of both sides for making efforts for amicable settlement. That is not what the statute requires. It is thus menifest that the finding of the Board has been arrived at without complying with the provisions of Sub-section (6) of Section 48 E and as such it is illegal. As the position is the same in all the cases, the order of the Deputy Collector Incharge Land Reforms (respondent no. 2) affirming such a finding of the Board will be vitiated in all the cases on account of the aforesaid illegality. It was the duty of the Deputy Collector Incharge Land Reforms to see that the Board complied with the mandatory provisions of Sub-section (6) of Section 48E of the Act before proceeding to enquire into the matter. The order of respondent No. 2, there fore, affirming the finding of the Board is also illegal on that score.
11. Mr. Shree Nath Singh has therefore, submitted that though no appeal lay and thus the Additional Collector had no jurisdiction to pass any order yet by the impugned order (Annexure 3) has set aside the illegal finding of the Board and the Illegal order of respondent no. 2 and this Court in the exercise of its writ jurisdiction should not interfere with the order of the Additional Collector as it would amount to restoring an illegal order. In support of his contention, learned counsel relied on the following decisions, namely (2) Jharia Water Board v. Jagdamba Loan Co. (A.I.R 1938 Patna 539), (3) Abdul Majld v. The State Transport Appellate Authority, Bihar (A.I.R 1960 Patna 332, para 9), (4) Dina Nath Kaul v. Election Tribunal, Jammu and Kashmir (A.I.R 1960 Jammu and Kashmir 25), (5) Kedarnath Lath v. Jaikumari Devi (1967 B.L.J.R 375), (6) Devendra Pd. Gupta v. The State of Bihar (1977 Bihar Bar Council Journal 543) and (7) Gadde Venkateshwara Rao v. Government of Andhra Pradesh (A.I.R 1966 Supreme Court 828) laying down the proposition that in such cases the High Court should not exercise its extraordinary discretionary power. It is not necessary to deal with each case. Suffice it to refer to the following observation of the Supreme Court in Venkateshwara Rao's case (supra), as the same principle has been reiterated in those decisions as well:
“Both the orders of the Government, namely, the order dated March, 7, 1962 and that dated April 18, 1963 were not legally passed; the former, because it was made without giving notice to the Panchayat Samiti, and the latter, because the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act and also because it did not give notice to the representatives of Dharmajigudam village. In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order—it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case.”
12. In the instant case, if respondent no. 3 instead of going before the Collector in appeal would have come to this Court in its writ jurisdiction, this Court would have, doubtlessly, quashed the order of the Deputy Collector Incharge Land Reforms, on account of the failure of the Board to make an endeavour to bring about an amicable settlement between the parties. The same result has been achieved as per the order of the Additional Collector, though he had no jurisdiction to pass that order. In such a situation, the Court seldom interferes in exercise of its extraordinary discretionary power, we do not, therefore, think it expedient to interfere with the order of the Additional Collector in these writ applications as that would not be in aid of justice. As already mentioned above, the order of respondent no. 2 as well as that of the Board has been set aside and the matter has been remanded for disposal in accordance with law. It is not known whether the same Anchal Adhikari who was the Chairman of the Board is there or somebody else is there in his place and whether the Panches of the parties are available or not. We, therefore, direct that respondent no. 2 should nominate a fresh Chairman with notice to the parties as required under Rule 2 of the Rules with option to nominate their Panches. The Board, after constitution, will make endeavours to bring about an amicable settlement under Sub-section (6) of Section 48E, and on failure to bring about an amicable settlement will proceed under Sub-section (7) of that section and dispose of the proceeding in accordance with law.
13. In C.W.J.C Nos. 1126, 1133, 1134 and 1137 of 1977 learned counsel for respondent no. 3 has raised another question also to the effect that the heirs of the original landowner, who died during the pendency of the bataldari proceeding, were not substituted and a petition in that regard was filed before the Deputy Collector Incharge Land Reforms, and, therefore, those proceedings were not maintainable. As the matter is going back to the Deputy Collector Incharge Land Reforms, he will consider this question. Certain other points have been raised by Mr. Shree Nath Singh with regard to the maintainabity of the batai applications but as the matter is going on remand to respondent no. 2, we do not consider it necessary to decide those points.
14. In the result, the writ applications are dismissed with the observations made above. Respondent no. 2 is directed to proceed in the matter in accordance with law, keeping in view the observations made above. In the circumstances, we make no order as to costs. As the matter is old, respondent no. 2 and the Board will dispose it of expeditiously.
Application dismissed. (with observations).