Ram Prabesh Singh And Another v. State Of Bihar — 1990 DIGILAW 115 (PAT)

Judgment Binod Kumar Roy, J. 1. This is an application under Articles 226 and 227 of the Constitution of India for issuance of a writ in the nature of Certiorari quashing various orders passed by the consolidation authorities as contained in Annexures-10, 11, 12 and 14 to the writ application under the provisions of the Bihar Consolidation of Holdings Act, 1956 (hereinafter referred to as the Act), One of the questions formulated at the time of admission of this writ application is as follows: Whether in a case in which during the continuance of consolidation proceeding notification creating a notified area under the Bihar and Orissa Municipal Act is issued, the Consolidation authorities shall continue the proceedings or not. The Facts: 2. The dispute centers around 20 decimals of land in revisional survey plot Nos. 14 and 19 decimals of land in revisional survey plot No. 15 appertaining to Revisional Survey Khata No. 114 of village Suara, Police Station Nokha, District Rotas. The said land correspond the cadastral survey lot No. 20, measuring an area of 39 decimals, appertaining to cadastral survey Khata No. 26. Khata No. 26 stood recorded in the names of Shiv Narain Sah, Ram Narain Sah, Ganesh Sha and Birja Sah, all sons of late Khadu Sah. Due to non-payment of rent, Rent Suit No. 68 of 1938 was instituted by the then landlord in the court of 2nd Munsif, Sasaram which was decreed. The decree was put in execution in Execution Case No. 1371 of 1939. The land was put on sale through auction. On 25th March, 1939 it was purchased by the then landlord. The sale was also confirmed on 17.4.1939. A certificate under Order XXI, Rule 4 of the Code of Civil Procedure (as contained in Annexure-1) was also issued. The then landlord came in Khas possession. By a registered deed of Mokarari dated 21.12.1940 (A.nnexure-2) the then landlord settled the land in question in favour of petitioner No. 2 after taking a Nazrana of Rs. 100 Petitioner No. 2 along with his family members has been in peaceful possession of the said iand. He also obtained rent receipts from the landlord for the year 1348 Fasli to 1363 Easli i.e., 1941 to 1956. One of the rent receipt dated 16.9.1964 is Annexure-2/1 to this writ application. 100 Petitioner No. 2 along with his family members has been in peaceful possession of the said iand. He also obtained rent receipts from the landlord for the year 1348 Fasli to 1363 Easli i.e., 1941 to 1956. One of the rent receipt dated 16.9.1964 is Annexure-2/1 to this writ application. The petitioners also Constructed a double storeyed house over 20 decimals of land situate towards north of cadastral survey plot No. 20 and that the remaining area was being used as their Sahan. The house was used as gola upto the year 1960 and thereafter it was let out to the Department of Animal Husbandry of the Government of Bihar till January, 1971. This is evident from the letter bearing memo No. 1884 dated 3.6.1971 of the Deputy Director, Animal Husbandry, Central Range, Patna, as contained in Annexure-3 as also a certificate granted by the Touring Veterinary Officer, Nokha, as contained in Annexure-3/1. Since January, 1975 the said building was let out to M/s. Shree Parshu Ramjee Gulla Chand of village Nokha but before that the petitioners were themselves in possession. At the submission of the return by the landlord at the time of the vesting the name of the petitioners, however, were not entered in the jamabandi and thus petitioner No. 2 filed a petition before the Circle Officer for entering his name in regard to the lands which was registered as Case No. 7 of 1967-68/8 of 1969-70. A recommendation was made by the Circle Officer, as contained in Annexure-4, for creating Tamabandi in favour of the petitioners as the land in question was recorded as Anabad Bihar Sarkar during the Revisional Survey and in the records of rights. No final order could he passed by the D.C.L.R on the basis of the recommendation (Annexure-4) as a notification bearing No S.O. 1168 dated 26th November, 1970, under Sec. 3 of the Act was published (Annexure-4/1) commencing consolidation proceeding in Nokha Anchal of Sasaram sub-division of the district of Shahabad. No final order could he passed by the D.C.L.R on the basis of the recommendation (Annexure-4) as a notification bearing No S.O. 1168 dated 26th November, 1970, under Sec. 3 of the Act was published (Annexure-4/1) commencing consolidation proceeding in Nokha Anchal of Sasaram sub-division of the district of Shahabad. This fact is evident from entry No. 25 of Annexure-4/1, Thereafter the Governor of Bihar, by a notification bearing No. S.O./779 published in the Bihar Gazette dated 10th November, 1972, exempted all the Municipal and Notified Areas falling in the Anchals of the districts of Shahabad and Mauzaffapur, as notified under Revenue Notification No. S.O. 1168 dated 26th November, 1970 from the operation of the Scheme of the Consolidation of holdings in the said Anchals. A suit under Sec. 106 of the Bihar Tenancy Act, 1885 was filed by petitioner No. 2 against the aforementioned illegal entry which was registered as Case No. 346 of 1970 in the court of Settlement Officer but due to the notification (Annexure-4/1) it was held to have been abated by the settlement authority. Proceedings under the Code of Criminal Procedure were also initiated between petitioner No. 2 and respondent No. 7 which were disposed of by orders dated 30.1.1979 and 9.6.1979 as contained in Annexures-5 and 6 respectively. Thereafter respondent No. 4 Sarjoo Sab, one of the successors of one of the recorded tenants in the cadastral survey namely, Shiv Narayan Sah, filed an application under Sec. 10(B) of the Act against the State of Bihar before the Consolidation Officer, Nokha which was registered as Case No. 802 of 1978/79 stating therein that he is an heir of the original recorded tenant of the cadastral survey Khata No. 26 and that the entry in favour of the State of Bihar was unauthorised. The petitioners also made an application for their addition which was allowed. The petitioners also filed documents before the Consolidation Officer. The claim of respondent No. 4 was rejected and the name of the petitioners was directed to be entered in the register of land by the Consolidation Officer vide his order dated 2.9.1984 as contained in Annexure-7. A notice was also given to the Anchal Adhikari, Nokha by the Consolidation Officer which in, evident from Annexure-7. Against the order (as contained in Annexure-7) respondents 4 to 7 filed an appeal under Sec. 10(6) of the Act. A notice was also given to the Anchal Adhikari, Nokha by the Consolidation Officer which in, evident from Annexure-7. Against the order (as contained in Annexure-7) respondents 4 to 7 filed an appeal under Sec. 10(6) of the Act. The petitioners raised objection before the appellate authority that the village concerned has been brought under the notified area committee vide notification No. 303 dated 18.1.1985 issued by the Government of Bihar in the Department of Urban Development and Housing and thus the appeal is not maintainable. The said objection was raised through a petition as contained in Annexure 9. The appellate authority relying upon the aforementioned notification (as contained in Annexure-8) held by an order (as contained in Annexure-10) that the appeal abates and the aggrieved party should move the Civil Court, after setting aside the order as contained in Annexure-7. He also directed that the entries in the revisional survey shall stand. Against the aforementioned order (Annexure-10) the petitioners as well as respondents 4 to 7 filed a revision application before the Director of Consolidation under Sec. 35 of the Act. The said applications were disposed of by orders dated 30.10.1987/27.11.87 (Annexures-11 and 12) without issuing any notice to the petitioners, about their dates of hearing alter they were admitted and transferred to the court of Joint Director of Consolidation, Muzaiiarpur, Mr. S.P. Sinha. The petitioners also filed an application as contained in Annexure-13 to hear the case on merits on the ground that they were never apprised of the date of the hearing of the revision application but the same has been rejected by an order dated 13-5-1988 as contained in Aaaexure-14 on the ground that he has got no jurisdiction to review the orders as contained fn Annexures-11 and 12. 3. The petitioners are represented by Mr. Parmeshwar Prasad Sinha and the State of Bihar through Mr. Anil Kumar Singh J.C. to S.C. IV. No counter-affidavit was filed on the date of hearing fixed in this case Today, on the second day of hearing at this stage of judgment, Mr. Mahesh Prasad, learned Counsel for respondent No. 4 files a counter-affidavit, The law is that counter-affidavit has to be filed by the respondent on the date fixed. No reason has been assigned by Mr. Mahesh Prasad for not filing the counter-affidavit on the date fixed. Mahesh Prasad, learned Counsel for respondent No. 4 files a counter-affidavit, The law is that counter-affidavit has to be filed by the respondent on the date fixed. No reason has been assigned by Mr. Mahesh Prasad for not filing the counter-affidavit on the date fixed. In my view permitting a counsel to file a counter-affidavit amidst judgment will not be proper. Let the counter-affidavit be kept on the record. 4. However, in the interest of justice I heard Mr. Prasad at this stage of judgment. The Submissions: 5. Mr. Parmeshwar Prasad Sinha, learned Counsel for the petitioners, submitted as follows: (i) Principles of natural justice have been grossly violated by the revisional authority in not affording any reasonable opportunity of hearing to them after the transfer of the revision application. This is evident from the statement made in item Nos. XXV to XXXI of Paragraph 3 of the writ application. (ii) In any view of the matter, the revisional authority has committed an apparent error of law in not appreciating the effect of the notification dated 10th September, 1971 as contained in Annexure-4/2 read with the notification dated 18th January, 1985 of the Urban Development and Housing of the Government of Bihar as contained in Annexure-8 applying the provisions of the Bihar and Orissa Municipal Act in regard to village Nokha notifying it as a Nokha notified area and it has erred in thinking that unless the notification as contained in Annexure 3 is cancelled the proceedings under the Act continues. 6. Learned S.C. IV states that he has received no instruction fro in the State of Bihar or from respondents 1 to 3. He submits, however, that the lands in question in revisional survey record of right having been recorded in the name of State of Bihar, there would be a presumption that the land belongs to the State of Bihar. Learned S.C. IV further submits that no revision having been filed against the order of the Joint Director of Consolidation, the matter has become final against the State of Bihar. 7. Mr. Mahesh Prasad No. 2, learned Counsel for respondents 4 to 9 submitted that the orders as contained in Annexure 11 and 12 were correctly passed and no interference is required by this Court. The Findings: 8. 7. Mr. Mahesh Prasad No. 2, learned Counsel for respondents 4 to 9 submitted that the orders as contained in Annexure 11 and 12 were correctly passed and no interference is required by this Court. The Findings: 8. Sec. 3 of the Act runs as follows: Declaration by State Government of its intention to make scheme for consolidation of holdings.-- (1) With the object of effecting consolidation of holdings for the purpose of better cultivation of lands in any area. The State Government may, after such enquiries as it may deem fit, by notification in the official Gazette, declare its intention to make a scheme for consolidation of holdings in that area. (2) The substance of the notification shall be announced by beat of drum in the villages comprised in the notified area and copies of the notification shall be hung up at the offices of all the Gram Panchyats, it any, the Police Station, the offices of the Anchal Adhikaries and the village Cutcharies of the State Government for collection of rent in such area. 9. From the long name of the Act, its preamble and Sec. 3 of the Act it is clear that the object of the Act is for effecting consolidation of holdings for the purpose of better cultivation of land in any area and the State Government may, after such enquiries as it may be deemed tit, by a notification in the official Gazette, declare its intention to make a scheme for consolidation of holdings in that area. Under Sub-sec. (2) of Sec. 3 of the Act the substance of the notification has to be announced by beat of drum in the villages comprised in the notified area and copies of the notification has to be hung up at the offices of all the Gram Panchayats, if any, the Police Station, the offices of the Anchal Adhikaris and the village Cutcharies of the State Government for collection of rent in such area. 10. The legislature, it thus appears, has taken note of the patent fact of the illiteracy prevalent in this State as also that there is no presumption that a citizen, what to talk of a villager, knows the law. Secs. 114 and 115 of the Indian Evidence Act also does not raise such a presumption. 10. The legislature, it thus appears, has taken note of the patent fact of the illiteracy prevalent in this State as also that there is no presumption that a citizen, what to talk of a villager, knows the law. Secs. 114 and 115 of the Indian Evidence Act also does not raise such a presumption. It would be thus preposterous to presume that villagers, and more so of this backward State, would know the provisions of the Act and the rules and the law of presumption as contained in Chapter VIII of the Indian Evidence Act. 11. My aforesaid conclusions are based from the following two declarations of the apex Court reported in M/s. Motilal Padampat Sugar Mills Co. Ltd. V/s. The State of Uttar Pradesh and Ors. -- and Sital Prasad Saxena (dead) V/s. Union of India and Ors. -- . In Motilals case (supra), it was observed- Morever it must be remembered that there is no presumption that every person knows the law, It is often said that every one is presumed to know the law, but that is not a correct statement; there is no such maxim known to the law. Over a hundred and thirty years ago, Maule, J. pointed out Martindala V/s. Falknar (1856) 2 CB 706, "There is no presumption in this country that every person knows the law; it would be contrary to common sense and reason if it were so". Scrutton, L.J., also: once said "It is impossible to know all the statutory law, and not very possible to know all the common law". But it was Lord Atkin who, as in so many other spheres, put the point in its proper context when he said in Evans V/s. Bartam. 1937 AC 473 "...the fact is that there is not and never has been a presumption that every one knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application. 1937 AC 473 "...the fact is that there is not and never has been a presumption that every one knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application. In Sital Prasad Saxenas case (supra), Desai, J. observed as follows: The second error/was that once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the High Court which has a seat far away from where parties in rural area may be residing and in a traditional rural family the father may not have informed his son about the litigation in which he was involved and was a party. 12. The notification dated 8th September, 1971 (Annexure-4/2) runs as follows: Bihar Gazette-10 November, 1971 Notification No. S.O./770 dated 8 September, 1971 Page No. 2450 (Part 110.--In pursuance of the provisions of Sec. 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act XXII of 1956), the Governor of Bihar is pleased to declare that all the Municipal and notified area falling in the Anchals of the districts of Shahabad and Muzaffarpur as notified under Sec. 3 of the said Act under Revenue Department notification No. S.O. 1168 dated 26th November, 1970 shall be exempted from the operation of the scheme for the consolidation of holdings in the said Anchals. 13. From the perusal of the aforementioned notification it is clear that the Governor of Bihar was pleased to dealer that all the municipal and notified areas falling in the districts of Shahabad and Muzaffarpur as notified under Sec. 3 of the Act under Revenue Department notification No. S.O. 1168 dated 26th November, 1970 (Annexure-4/1) shall be exempted from the operation of the scheme for the consolidation of holdings in the said Anchal. 14. It is unfortunate that the mandate of the Governor of Bihar has not been followed up even though it appears from the notification (Annexure-8) that village Nokha, where the lands in question situate, has become a notified area. 15. In first Appeal Nos. 14. It is unfortunate that the mandate of the Governor of Bihar has not been followed up even though it appears from the notification (Annexure-8) that village Nokha, where the lands in question situate, has become a notified area. 15. In first Appeal Nos. 288 and 566 of 1970 disposed of on 13th March, 1986 (and I am informed at the Bar that Letters Patent Appeal against the said decision was also dismissed and even a petition for Special Leave to Appeal before the Supreme Court has also been rejected) after considering the legal effect of the same notification dated 8th September, 1971 (Annexure-4/ 1 herein) it was observed by this Court as follows: 2. Mr. Jagdish Pandey, learned Counsel appearing for some of the respondents in F.A. No. 566 of 1970 has, however, brought to my notice a Notification dated the 8th September, 1971 published in the Bihar Gazette dated 10.11.1971 stating that all the Municipal and Notified Area falling in the districts of Shahabad and Muzaffarpur, as notified under Sec. 3 of the Act under Revenue Department Notification No. S.O. 1168 dated 26.11.1970, would be exempted from the operation of the Scheme for the Consolidation of Holdings in the said Anchals. It follows, therefore, that in the case of the nature of the suit and the land satisfying the requirement of Sec. 4(c) of the Act the suit shall only partially abate as the abatement cannot be applied to the lands falling in any Municipal area of the district. Schedule-B lands except 471/2 decimals of plot No. 474 Khata No. 80 in respect of which affidavit has been sworn on behalf of respondent No. 2 shall remain unatfected by the abatement. 6. Another argument, however, advanced on behalf of the respondents, before me is that the notification under Sec. 3(1) of the Act was issued in the year 1970, Sec. 4 of the Act has been re-enacted by Bihar Act XXVII of 1975 and the bar as to institution of any suit or other legal proceeding in Clause (b) thereto and the order of abatement provided in Clause (c) thereto were not in sight when in the year 1970 the notification had been issued. Under the then prevailing law, after completion of the scheme and delivery of possession no prescription existed giving to the acts done) under the Act any finality to exclude institution of a suit or a proceeding for right and interest in such proceedings. Sec. 26-A has also been introduced in the Act by the 1975 Amendment Act. In short, the submission before me is that the court should allow a suit, instituted before the 1975 Amendment was introduced, to continue notwithstanding the provisions of abatement. This aspect of the case has fallen for consideration more than once before this Court. Without going into various authorities and the principles laid down therein, I may straightway indicate that Sec. 4, after 1975 Amendment, has only prescribed the consequences upon the publication of the notification under Sub-sec. (1) Sec. 3 of the Act and in Clause (c) there to a suit or proceeding pending before any court or authority whether of the first instance or of appeal, reference or revision has been affected by it. A procedural retrospectivity to trace the notification under Sec. 3(1) of the Act before the 1975 Amendment was introduced will cause no damage to the scheme of the law as it has to be applied to a suit or proceeding whether of the first instance or of appeal, reference or revision pending on the date when order of abatement is recorded. Since the two appeals are pending today and the notification under Section 3(1) of the Act is still operating the only effect to which the order may be made is to record the abatement. As I have already indicated, this abatementis only partial and touch the land falling within the definition in the Act and note the land falling within the municipal area: the appeals have to be heard and have, accordingly, been heard in respect of the lands described in Schedule B of the plaint except 474 decimals of land of plot No. 474 Khata No. 89 of village Bahuwan. (Emphasis added.) 16. For the said reasons, I hold that the consolidation proceedings came to a naught no sooner the land in question was brought within the purview of the municipal area. (Emphasis added.) 16. For the said reasons, I hold that the consolidation proceedings came to a naught no sooner the land in question was brought within the purview of the municipal area. Thus there is no manner of doubt that the revisional authority has committed an apparent error of law in holding that unless denotified under Sec. 26-A of the Act the consolidation proceedings continues pursuant to a notification published under Sec. 3 of the Act. 17. In view of my finding in regard to the first submission made by Mr. Sinha and the question of law formulated at the time of admission of this writ application, its is not necessary for me to consider the second question argued by Mr. Sinha, namely, that the principles of natural justice have been grossly violated by the revisional authority. 18. I cannot help in observing that the State of Bihar has not come up through a counter-affidavit taking up a categorical stand of its title in regard to the lands in question which in the real bone of contention between the petitioners on the one hand and respondents 4 to 9 on the other, I do not find substance in the argument that the matter regarding State of Bihar has become final for the reasons already stated. 19. Be that as it may, it is a fit case in which revisional orders should not be allowed to stand and the petitioners are entitled for a limited relief. Results: 20. The revisional orders as contained in Annexures-11 and 12 are accordingly quashad. It need not interfere with the last part of the order of the appellate authority stating that the entries as recorded in the revisional survey shall stand till the petitioners or respondents 4 to 7 get their title adjudicated vis-a-vis the State of Bihar in a competent court. The writ application is allowed in part. However, in the peculiar facts and circumstances of the case, there shall be no order as costs. 21. Let a writ of certiorari issued accordingly.