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1985 DIGILAW 286 (PAT)

Kailash Rai v. Joint Director of Consolidation, Bihar Patna

1985-09-30

J.N.DUBEY

body1985
JUDGMENT J.N. DUBEY, J. This writ petition is directed against the order dated 28.8.1985 of the Joint Director of Consolidation Bihar. 2. It appears that the land in dispute was recorded in the names of the respondent nos. 4 to 16 in the statement of principles prepared under section 9A of the Bihar consolidation of Holdings & Prevention of Fragmentation Act, 1956 (for short ‘the Act’). The petitioners filed objection under section 10(2) of the Act claiming that they were landholders in possession of the land in dispute but heir names were wrongly omitted from the revenue records. Respondents nos. 4 to 16 contested the objection on the ground that they were land-holders in possession of the in dispute and were rightly recorded as such in the revenue records. The Assistant the objection, allowed it on 11.11.1977. The respondent nos. 4 to 16 filed appeal to the Deputy Director of Consolidation, Muzaffarpur which was dismissed on 26.12.1979. Thereafter they filed revision which was allowed by the Joint Director, the petitioner have filed this writ petition. 3. Heard the learned counsel for the parties and perused the record. 4. Learned counsel for the petitioners contented that the Joint Director of Consolidation was not legally justified in setting aside the findings of fact recorded by the two courts below in their favour in its revisional power under section 35 of the Act. 5. I find substance in the argument of the learned counsel. The Assistant Consolidation Officer and the Deputy Director of consolidation, after considering the entire material on record, had recorded the finds of fact in favour of the petitioners and the same could not be legally set aside by the Joint Director of Consolidation in its revisional power. It is now well settled that the revisional court cannot give a finding by appreciating the facts de novo. My this view finds support from a decision of the Supreme Court in Ram Dular-versus-Deputy Director of Consolidation, Joanpur and others (1994 Supp. It is now well settled that the revisional court cannot give a finding by appreciating the facts de novo. My this view finds support from a decision of the Supreme Court in Ram Dular-versus-Deputy Director of Consolidation, Joanpur and others (1994 Supp. (2) Supreme Court Cases, 198 in which the Supreme Court while interpreting a similar provision of the U.P. Consolidation of Holdings Act, has held as under : “It is clear that the Director had power to satisfy himself as to the legality of the proceedings or as to the correctness of the proceedings or correctness, legality or propriety of any order than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a fact finding authority by appreciating for itself of those facts de novo. It has to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by it is based on evidence, by patent illegality or impropriety had been committed or there was any procedural-irregularity, which goes to the rest (sio root) of the matter, had been committed in recording the order or finding.” 6. The Joint Director of Consolidation has committed an error apparent on the fact of the record in setting side the findings of fact recorded by the two subordinate courts in favour of the petitioners and as such, his order is liable to be quashed. 7. Learned counsel for the respondents nos. 4 to 16 contended that even assuming that the order of the Joint Director of Consolidation is without jurisdiction, it is not a fit case for interference under Article 226 of the Constitution as substantial justice has been done between the parties. According to him, the objection filed by the petitioner under section 10 (2) of the Act was contested by the respondents and therefore, the same could not be legally decided by the Assistant Consolidation Officer. Under section 10 (3) of the Act, the Assistant Consolidation officer is competent only to decide the objection on the basis of compromise. Since in this case, there was no compromise between the parties he had no jurisdiction to decide the objection on merit. Under section 10 (3) of the Act, the Assistant Consolidation officer is competent only to decide the objection on the basis of compromise. Since in this case, there was no compromise between the parties he had no jurisdiction to decide the objection on merit. He should have forwarded the objection for disposal to the Consolidation officer as contemplated by section 10 (4) of the Act. He further contended that the Deputy Director of Consolidation also acted illegally for maintaining the order of the Assistant Consolidation officer which was wholly without jurisdiction. 8. I am in agreement with the argument of the learned counsel for the respondents. The register prepared under sub section (2) of section 9 of the Act and the statement of principles prepared under section 9A of the Act has to be published under sub section (10 of section 10 of the Act. Aggrieved persons can challenge those entries by filing an objection under sub-section (2) to the Assistant Consolidation officer. Under sub section (3) the Assistant Consolidation Officer has to make effort to get the dispute settled by compromise. The objections in which the parties come to compromise can be finally decided by him on the basis of the compromise and the remaining objections have to be forwarded to the Consolidation Officer for disposal under sub section (4). In view of the admitted position that there was no compromise between the parties in this case, the Assistant Consolidation Officer had no jurisdiction to decide the objection finally in favour of either of the parties. The only course open for him was to forward the objection to the Consolidation Officer for deciding it on merit as contemplated under sub-section (4) of section 10 of the Act. The Deputy Director of Consolidation committed an error apparent on he face of the record in not setting aside the order of the Assistant Consolidation Officer which was clearly without jurisdiction. The Joint Director of Consolidation also traveled beyond his jurisdiction in setting aside the findings of fact recorded by the two courts below by appreciating the evidence on record de novo. 9. The Joint Director of Consolidation also traveled beyond his jurisdiction in setting aside the findings of fact recorded by the two courts below by appreciating the evidence on record de novo. 9. Learned counsel for the respondents while conceding that the Joint Director of Consolidation had no jurisdiction to set aside the findings of fact recorded by the two courts below by appreciating the evidence on record de novo, contended that the orders which have been set aside by him themselves were without jurisdiction and as such, no prejudice has been caused to the petitioners. In other words, according to him, substantial justice has been done between the parties and, therefore, it is not a fit case for interference under Article 226 of the Constitution. I find so substance in this argument of the learned counsel. It is true that the orders of the Assistant Consolidation officer and the Deputy Director of consolidation which have been set aside by the Joint Director of Consolidation themselves were without jurisdiction, but it cannot be claimed that substantial justice has been done between the parties. The petitioners had rightly filed objection under section 10 (2) of the Act before the Assistant Consolidation Officer. It is the Assistant Consolidation Officer who committed the mistake in deciding the objection himself instead of forwarding the same to the Consolidation officer for disposal, for which the petitioners cannot be legally punished. 10. In my opinion, it would sub-serve the interest of justice if the orders of all the three consolidation authorities are set aside and the Assistant Consolidation officer is directed to forward the objection of the petitioners to the Consolidation officer for disposal. 11. I, accordingly, dispose of this writ petition by quashing the impugned orders dated 28.8.1985, 25.12.1979 and 11.11.1977 passed by the respondent nos. 1, 2 and 3 respectively and direct the respondent no. 3, the Assistant Consolidation Officer, Minapur to forward the objection of the petitioners to the Consolidation Officer under section 10 (4) of the Act for disposal. 12. No order as to costs. Application disposed with direction.