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1984 DIGILAW 381 (PAT)

Shyam Bihari Upadhyay v. State Of Bihar

1984-11-09

M.P.VARMA, NAGENDRA PRASAD SINGH

body1984
Judgment N.P.SINGH, J. 1. The writ application has been filed on behalf of the petitioners for quashing different orders passed by the , consolidation authorities. 2. Registers of lands of the village in question were prepared in accordance with S.9 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 thereinafter to be referred to as the Act). The registers so prepared along with the statement of principles were published under S.10(1) of the Act. The plots in question were shown to be in possession of Mosst. Bhagjogna Mosst. Bhagjogna had died in the year 1972. 3. Before the Assistant Consolidation Officer objection was filed under sub-sec.(2) of S.10 of the Act by the petitioners. The objection of the petitioners was allowed by an order dated 13-1-1981. Thereafter, respondents 6 to 8, who had not filed any objection under S.10(2) of the Act filed objection before the Consolidation Officer under S.12(2) of the Act. By order dated 12-2-1983 that objection was allowed. The petitioners filed an appeal before the Deputy Director, Consolidation which was dismissed on 31-3-1983. Even the revision filed before the Director, Consolidation was dismissed on 3-3-1984. 4. On behalf of the petitioners it was submitted that respondents 6 to 8 having not filed any objection under S.10(2) of the Act could not have challenged any entry made in the map or register prepared under S.9 or the statement of principles prepared under S.9A of the Act in view of S.10A. S.10A is as follows: - "No question in respect of any entry made in the map or registers prepared under S.9 or the statement of principles prepared under S.9A relating to the consolidation area, which might or ought to have been raised under S.10 but has not been raised, shall not be raised or heard at any subsequent stage of the consolidation proceeding." On behalf of the petitioners it was urged that the Director, Consolidation should have held that as no objection was filed on behalf of respondents 6 to 8 under S.10(2) of the Act S.10A operated as a bar and respondent, Consolidation Officer could not have allowed the objection of respondents 6 to 8 by his order dated 12-2-1983, 5. The scope of S.10A has been I considered by a Bench of this Court in the case of Jagarnath Thakur V/s. State of Bihar, 1984 BBCJ 140 where it was pointed out that if a person does not file an objection under S.10(2) he cannot raise any objection in respect of the entry at any subsequent stage of consolidation proceeding because the bar of S.10-A operates in such cases. The question whether the bar of S.10-A also operates on the power of the Director, Consolidation under. S.35 of the Act, however, was left open as it did not arise for consideration in the facts and circumstances of that case. 6. Sec.10-A applies the bar to the "subsequent stage of consolidation proceedings", the object being that a person, who has not availed of the opportunity of filing an objection within the time prescribed, should not be allowed to raise any such objection, as it is likely to delay the different stages of the consolidation proceedings. S.10D, however, vests power in the Deputy Director of Consolidation if he is satisfied that the register of lands published under sub-sec.(1) or corrected under sub-secs.(3), (4), (5), (6) of S.10 a substantial number of raiyats could not avail of the opportunity to place their claim under sub-sec.(2) of S.10, to direct re-publication of the register of lands or statement of principles in the manner prescribed. If any such order is passed the persons concerned within 30 days of such re-publication, may file objection before the Assistant Consolidation Officer disputing the correctness and nature of entries in the register of land, notwithstanding the provisions of S.10-A. 7. On behalf of the respondents it was urged that S.10-A cannot be held to be bar on the power of the Director, Consolidation under S.35 of the Act, because S.35 vests supervisory power in the Director for rectifying a wrong committed by the consolidation authorities. On behalf of the respondents it was urged that S.10-A cannot be held to be bar on the power of the Director, Consolidation under S.35 of the Act, because S.35 vests supervisory power in the Director for rectifying a wrong committed by the consolidation authorities. S.35 as inserted by Bihar Act 27 of 1975 is as follows: - The Director of Consolidation may of his own motion or on the application of any party or on reference being made by any subordinate authority, call for and examine the record of any case decided or proceedings taken by such authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings, and may after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit." On a plain reading this section vests a very wide power in the Director of Consolidation which can be exercised by him suo motu or on an application of any party. While exercising the power under that section the Director of Consolidation can examine the record of any case deckled or proceedings taken by the consolidation authorities for the purpose of satisfying himself as to correctness, legality or propriety of orders passed in any case or proceedings. 8. Learned Additional Advocate General, who appeared for the respondent-State, pointed out that when S.10-A says "which might or ought to have been raised under S.10 but has not been raised, shall not be raised or heard at any subsequent stage of the consolidation proceeding", it means that the bar will operate at subsequent stage of consolidation proceeding and not on the revisional power of the Director, Consolidation. In other words when the Director of Consolidation exercises the revisional power suo motu or on the application of a party, it is not a subsequent stage of the consolidation proceeding. In my opinion, there is substance in this contention. Director of Consolidation under S.35 has to satisfy himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order passed by such authorities in the case or proceedings. In my opinion, there is substance in this contention. Director of Consolidation under S.35 has to satisfy himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order passed by such authorities in the case or proceedings. In appropriate cases he may be satisfied that petitioner before him could not file objection under S.10(2) for the reasons beyond the control of such petitioner. It is well known that in many cases for some reason entries in respect of plots are made in favour of persons who have neither title nor possession over such plots, and the rightful owner, who is in possession might not have filed objection within the time prescribed due to some unfortunate and compelling reasons. In such cases, if it is held that the Director cannot interfere, it will amount to perpetuating a wrong done to a person. This interpretation is consistent with the interpretation given on different occasions in respect of supervisory powers vested in different authorities under different enactments. A Full Bench of Allahabad High Court in the case of Ramakant Singh V/s. Dy. Director of Consolidation, U. P., AIR 1975 All 126 , while construing the scope of S.48 of the U. P. Consolidation of Holdings Act, which is a parallel provision to S.35 of the Act, pointed out that under that section the Director can examine the record to decide whether it was a fit case for the exercise of the revisional jurisdiction suo motu, and it was observed that such opinion shall have to be formed even in a case where the application in revision moved by a party is defective having been made beyond the prescribed period of limitation or where all the necessary parties have not been impleaded. However, in cases where all the necessary parties have not been impleaded, it was said that the Director of Consolidation should give notice to all the necessary parties irrespective of the fact whether they were or were not impleaded in the application. 9. Learned Additional Advocate General pointed out that in case of Gaffora V/s. Dy. However, in cases where all the necessary parties have not been impleaded, it was said that the Director of Consolidation should give notice to all the necessary parties irrespective of the fact whether they were or were not impleaded in the application. 9. Learned Additional Advocate General pointed out that in case of Gaffora V/s. Dy. Director of Consolidation, Meerut, AIR 1975 SC 1716 while holding that S.11A of the U. P. Consolidation of Holdings Act, which is a similar provision to S.10-A of the Act, and bars all objections at later stage of the proceeding, did not hold that the said bar of S.11-A operates even on the power of the Director under S.48 of that Act It may also be pointed out that there is no "non obstante clause" in S.10A so that it can be inferred that framers of the Act purported to give it an overriding effect even on S.35 of the Act. In my opinion, S.10 A does not operate as bar on the power of the Director, Consolidation. The Director, Consolidation within the limitation prescribed for exercise of supervisory jurisdiction can exercise his power, under S.35 for rectifying any mistake in the order passed or proceedings taken for ends of justice. 10. Coming to the facts of the present case, it is an admitted position that respondents 6 to 8 did not file any objection under S.10(2) of the Act As such, the bar prescribed under S.10-A operated against them. They could not have taken an objection in respect of the entry under S.12(2) because sub-sec.(2) of S.12 opens with the words "subject to the provisions contained in S.10A", The Consolidation Officer, while allowing that objection by his order dated 12-2-1983, overlooked the bar imposed by S.10-A of the Act As such, that order cannot be sustained The Director of Consolidation did not notice this aspect of the matter while dismissing the application of the petitioners. The matter would have been different if in exercise of his revisional jurisdiction he had come to the conclusion that in the facts and circumstances of the case it was only just and proper that respondents 6 to 8 should have been allowed to file an objection for the ends of justice. But, as none of the aforesaid questions has been considered by the learned Director. But, as none of the aforesaid questions has been considered by the learned Director. Consolidation, I am left with no option but to allow this application and to set aside the order dated 5-3-1984 passed by him. The application is, accordingly, allowed. The revision application shall be heard afresh and shall be disposed of in accordance with law in light of the observations made above. 11. As respondents 6 to 8 have entered appearance I direct the petitioner as well as respondents 6 to 8 to appear before the Director, Consolidation on or before 29th November, 1984 in order to avoid delay in service of notice on the parties concerned. On that day, a date for hearing of the revision application shall be fixed and it shall be disposed of in accordance with law. M.P.VERMA, J. 12 I agree.