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1979 DIGILAW 140 (PAT)

Ganga Devi v. Mahila Silpkala Bhawan, Muzaffarpur

1979-07-03

S.ALI AHMAD, UMESH CHANDRA SHARMA

body1979
By Court These two writ applications have been heard together and are being disposed of by one common order. 2. It appears that a survey operation within the meaning of the Bihar and Orissa Municipal Survey Act was going on within the Muzaffarpur Municipality, Plot no. 321 of the recent survey comprised parts of plot nos. 2255, 2256, 2258, 3382 and 3383. This plot, it further appears, was recorded in the name of the petitioner under the draft prepared and published under section 8 of the Bihar and Orissa Municipal Survey Act, 1920. Objections were filed to this entry. Mahila Shilp Kala Bhawan, respondent no. 1 in the two cases filed case no. 264 of 1975 before the Assistant Superintendent of Survey claiming that portions of plot nos. 3384, 3385 and 3386 belonged to her and, as such, plot no. 321 should be recorded in her name. An application was filed on behalf of respondent no.2, the State of Bihar also and in that application, it was, inter alia, stated that portions of plot nos. 3382, 3383 and 3384 vested in it and. as such plot no. 321 should be recorded in the name of the State of Bihar. The objection of the State of Bihar was registered as Case No. 304 of 1975. The two cases were heard together and the learned Assistant Superintendent of Survey dismissed the two objections holding (i) that respondent no. 1 had claimed portions of plot nos. 3384, 3385 and 3386 and that these plots did not constitute the present plot no. 321 and (ii) that the objection of the State of Bihar also had no merit and plot nos. 3382, 3383 along with parts of plot nos. 2255, 2256, 2257 and 2258 belonged to the Muzaffarpur Municipality which was sold by a registered sale deed dated 15.8.1958 in favour of the petitioner. The two objections were, therefore, rejected. Two appeals were filed against the order of the Assistant Superintendent of Survey one by the Mahila Shilp Kala Bhawan and the other on behalf of the State of Bihar. The appellate court, after hearing the parties, allowed the appeals and directed the Khatian to be corrected as prayed for by respondents no. 1 and 2. By these two writ applications therefore, a prayer has been made that the order passed In appeals as contained in Annexure 1 to the applications be quashed. 3. Mr. The appellate court, after hearing the parties, allowed the appeals and directed the Khatian to be corrected as prayed for by respondents no. 1 and 2. By these two writ applications therefore, a prayer has been made that the order passed In appeals as contained in Annexure 1 to the applications be quashed. 3. Mr. Lal Narayan Sinha, learned counsel for the petitioners, has submitted that the Superintendent of Survey, who heard the appeals against the orders of the Assistant Superintendent of Survey, as contained in Annexure 2, had no jurisdiction to entertain the appeals. According to learned counsel, an appeal is a creation of statute and since the statute did not provide any appeal, the Superintendent of Survey has no jurisdiction to sit in appeal and set aside the orders of the Assistant Superintendent of Survey. Learned counsel in that connection referred to section 9 of the Act which provided that all objection shall be disposed of by such officer and in such manner and subject to such appeal, if any, as may be prescribed. It is said that no rule prescribing any appeal has been made so far and as such the Superintendent of Survey had no authority in law to sit as an appellate Court. Learned Counsel for the State, on the other hand, says that the real question as noticed by the Superintendent of Survey was as to whether the Municipality had the right to transfer the land to the petitioners and since that question had not been answered either way, the case should be sent back on remand. This argument of learned counsel cannot be accepted. A bare reading of section 9 of the Act shows that an appeal against an order passed by the Assistant Superintendent of Survey will lie only if, by rule framed under the Act; an appeal is provided. Admittedly no rules have been framed providing an appeal against the order passed by the Assistant Superintendent of Survey. The Superintendent of Survey, respondents no.3, therefore, had absolutely no jurisdiction to entertain the appeal and set aside the order passed by the Assistant Superintendent of survey, the order as contained in Annexure 2. For these reasons, we think the order as contained in Annexure 1 cannot be sustained. The applications are, therefore allowed and the order as contained in Annexure 1 is quashed. There will be no order as to costs. For these reasons, we think the order as contained in Annexure 1 cannot be sustained. The applications are, therefore allowed and the order as contained in Annexure 1 is quashed. There will be no order as to costs. Application allowed.