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1988 DIGILAW 230 (PAT)

Sudama Devi v. State of Bihar

1988-05-13

S.B.SINHA

body1988
JUDGMENT S. B. Sinha, J. In this writ application the order dated 19.10.1975 passed by the respondent no. 3 in Appeal Case No. 384/78/79 as contained in Annexure-4 to the writ application and the order dated 28.1.1982 passed by the respondent no. 3 in case no. 1869 of 1979 as contained in Annexure 5 to the writ application are under challenge. 2. In view of the order proposed it is not necessary to state the facts of the case in details. one Bikram Singh left behind two sons, namely, Surajpal Singh and Narain Singh. The petitioner claims right title and interest in the property in question as hair of Narain singh being her daughter. According to the petitioner, upon the death of Narain Singh She inherited the interest of the aforesaid Narain Singh. The other son of Bikram Singh, namely Surajpal Singh died in the year 1962 leaving behind his widow, Gena Devi who succeeded her husband. 3. The respondent no 5 in is the contesting respondent who claims his right title and interest in the land in question on the basis of a deed of sale dated 24.1.1961 executed by Gena Devi widow of Surajpal Singh. 4. The only dispute between the parties aforementioned is as to whether the property in question is the self-acquired property of Narain Singh or the joint family property of both Surajpal Singh and Narain Singh, who as stated here in before, are sons of Bikram Singh. 5. By reason of the impugned orders it has been held that respondents no 1 and 2 to have acquired title over the property in question, which was the joint property and as such Gena Devi had right to execute the aforesaid deed of sale in favour of the respondent no. 5 after the death of Surajpal Singh. 6. The learned counsel appearing on behalf of the respondent no. 5 has drawn my attention to Annexure-2, where from, it appears that a suit, in relation to the said property, is pending. However, counsel for both the parties agree that the suit had abated in terms of section 4 (C) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act') 7. The learned counsel appearing on behalf of the respondent no. However, counsel for both the parties agree that the suit had abated in terms of section 4 (C) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act') 7. The learned counsel appearing on behalf of the respondent no. 5 submitted that in view of the fact that now consolidation proceeding is over, the suit would be revived and in the suit, dispute between the parties can be resolved in the aforementioned suit. Mr. Ganesh Prasad Singh, learned Counsel appearing on behalf of the petitioner in reply to the aforementioned submission of the learned counsel for the respondent no. 5 drew my attention to a judgment of special Bench of this Court in the case of Ram Krit Singh and others Versus The State of Bihar and others. 8. In the said decision, the special Bench after taking into consideration the various provisions appended to section 4 C of the said Act, came to the conclusion that in the suit, if the same revives, the civil court is bound to pass a decree in conformity with the judgment passed in the Consolidation proceedings. In this view of the matter I am of the view that the pendency of the suit should not be a bar in hearing of the writ application on merit as to relegate the parties to the suit would be an empty formality. 9. Mr. Singh, the learned counsel appearing on behalf of the petitioner has drawn my attention to the impugned order as contained in Annexure-5 to the writ application. The learned counsel submitted that from a perusal of the said order it would appear that the respondent no-I while passing the said order-merely catalogued the respective documents filed on behalf of the petitioner and the respondent no 6 but he has not discussed the effect of the said documents whatsoever. 10. The learned counsel for the respondent no. 5, on the other hand, submitted that the respondent no. I was exercising a revisional jurisdiction and as such, it was not necessary for him to consider the effect of if, every document or all the evidences on record He has drawn my attention to the findings arrived at by respondent no. I, which according to the learned counsel were on the basis of the materials available on record. I was exercising a revisional jurisdiction and as such, it was not necessary for him to consider the effect of if, every document or all the evidences on record He has drawn my attention to the findings arrived at by respondent no. I, which according to the learned counsel were on the basis of the materials available on record. In this connection he has drawn my attention to a Division Bench decision of this court in the case of Mostt Jamuarta Kuer Versus Director of Consolidation. In that decision it has been held that writ of certiorari cannot be issued either for correcting an error of fact or that law committed by the Subordinate authorities by the High Court in exercise of its power under Article 226 of the Constitution of India. There is no dispute so far as the provisions of law laid down in the aforesaid Division Bench decision is concerned. However, it is also well known that the writ of an error of law apparent on the face of the record. 11. In the instant case the respondent no. I was exercising his jurisdiction under section 35 of the aforementioned Act, which reads as follows:- “The Director of consolidation may of his own motion or on the application of any party or any reference being made by any subordinate authority, call for and examine the record of any case decided or proceedings taken by 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 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.” From a perusal of the aforementioned provision it is evident that the Director of Consolidation while exercising his power under section 35 of the aforementioned Act, is not only required to examine the regularity of the proceeding of the subordinate authority but also is required to exercise his jurisdiction with regard to the correctness, legality or propriety of any order passed by such authority. The jurisdiction under the provisions of section 35 of the said Act, is not, therefore in Pari materia with the additional jurisdiction of this court as contemplated under section 115 of the Civil Procedure Code, In my opinion, the Director of Consolidation in terms of the provisions of sections 35 of the said Act, has a very wide power. 12. In my opinion, the power under section 35 of the Act, being not circumscribed by any statutory limitation the revisional authority can not only correct errors of law but also is entitled to correct gross errors of fact also. It is true that while exercising a power of revision, the authority does not Act, as an appellate authority but for the purpose of finding out such a vital fact that is as to whether the property in question was ancestral property or a joint family property, it was obligatory upon him to arrive at the decision after assigning some reasons. There is nothing on the record to show that he has applied his own independent mind with reference to the various documents relied upon by the parties concerned. 13. I am further of the opinion that in view of the fact that the Director of Consolidation while exercising his revisional jurisdiction exercise a judicial function, he is bound to assign some reasons in support of his order which may not be a detailed reason, while passing his order. In this case the respondent no. I has singularly failed to do so. It is now well-known that mere cataloguing of all the documents without discussing the effect there of amounts to exercise of jurisdiction in au irregular or illegal manner. The authority concerned, in my opinion has committed a material irregularity in the exercise of his jurisdiction by not taking into consideration such vital materials before arriving at a decision. Such illegal exercise of jurisdiction by an authority comes within the purview scope of Articles 226 and 227 of the Constitution of the India and thus enabling this Court to interfere with such order. 14. In this view of the matter, I am of the opinion that the order dated 28.1.1982 passed by the respondent no. 2 as contained in Annexure-5 to the writ application suffers from a jurisdictional error and as such I have no other option but to quash the said order and direct the respondent no. 14. In this view of the matter, I am of the opinion that the order dated 28.1.1982 passed by the respondent no. 2 as contained in Annexure-5 to the writ application suffers from a jurisdictional error and as such I have no other option but to quash the said order and direct the respondent no. 2 to rehear the parties and pass an order in accordance with law. 15. In the result, this writ application is accordingly allowed but there will be no order as to costs. Application allowed.