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1992 DIGILAW 16 (PAT)

Sukhlal Sahni And Another v. Gonour Sahni

1992-01-22

G.C.BHARUKA

body1992
Judgment G.C.Bharuka, J. 1. This writ application has been filed by the petitioners for quashing of the order dated 15-5-1983 passed by the Joint Director, Consolidation, in case No. 1830/80 as a revisional authority under Sec. 35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act only). By this order, the Joint Director has affirmed the order of the Consolidation Officer by which he has allowed the petition filed by respondent No. 1 for correction of the map in respect of the land in question. 2. I may state the relevant facts in brief. The dispute relates to 1 decision of land pertaining to old plot No. 274 of Khata No. 239 out of which R.S. plot No. 275 has been carved out. The State Government issued notification dated 17-11-1972 under Sec. 3 of the Act in respect of Saraiya Anchal in which village Jaintpur lay. On 23-9-1978 the respondent No. 1 filed an application before the consolidation authority stating therein that according to him some mistake has crept in the map prepared during survey operations under the Bihar Tenancy Act in respect of the land in question and that needs to be corrected. The Consolidation Officer after hearing the contesting parties including the petitioners of this writ application by his order dated 13-9-1979 directed for necessary correction in the map. Aggrieved by this order the petitioners preferred an appeal before the Deputy Director, Consolidation under Sec. 10 (6) of the Act and the appellate authority for the reasons incorporated in his order (Annexure-8) set aside the order of the consolidation authority. Against this order a revision application was preferred before the respondent Joint Director, who restored the order of the Consolidation Officer by his order dated 15-5-1983 (Annexure-9). 3. The learned Counsel for the petitioners has assailed the revisional order on the ground that 1) the Consolidation Officer had no jurisdiction to entertain the objection of respondent No. 5 with regard to correction of the map after expiry of 45 days as contemplated under Secs. 3. The learned Counsel for the petitioners has assailed the revisional order on the ground that 1) the Consolidation Officer had no jurisdiction to entertain the objection of respondent No. 5 with regard to correction of the map after expiry of 45 days as contemplated under Secs. 10 (2) and 10-A of the Act, (II) since the map was prepared pursuant to survey under Sec. 103 of the B. T. Act, therefore, respondent No. 1 was not entitled to re-agitate the issue which is otherwise hit by the principle of res judicata and (HI) the finding with regard to conferment of title in favour of respondent No. 1 pursuant to a sale deed its enforceable because the sale deed has not been executed by the original owner. 4. So far as the first objection is concerned, perusal of Sec. 10 of the Act clearly shows that the objection under Sec. 10 (2) can be raised only in respect of registers prepared under Sub-sec. (2) of Sec. 9 and the statement of principles prepared under Sec. 9-A. There is no provision of raising any objection with regard to the preparation of map either under the Act or under the provisions of the B. T. Act. Therefore, in such matters the question of limitation described under Sub-sec. (2) of the Act will not apply. So far as Sec. 10-A of the Act is concerned, it provides that no question in respect of any entry made in the map or registers prepared under Sec. 9 or the statement of principles prepared under Sec. 9-A relating to consolidation area, which might or ought to have been raised under Sec. 10 but has not been raised, shall not be raised or heard at any subsequent stage of the consolidation proceeding. Therefore, Sec. 10-A will stand as a bar only in respect of such matters which might or ought to have been raised under Sec. 10 of the Act. But, I have already held so that far as the objection with regard to correction in the map is concerned, it cannot be the subject matter of objection under Sec. 10 and therefore, the provisions of Section 10-A of the Act cannot be of any avail to the petitioners. 5. So far as the next ground based on principles of res judicata is concerned, that too is of no consequence in the present case. 5. So far as the next ground based on principles of res judicata is concerned, that too is of no consequence in the present case. Under the scheme of the Consolidation Act even with regard to record of rights and the maps prepared under the B. T. Act consolidation authorities has been empowered to pass appropriate orders for alteration thereof. Therefore, if the Statute authorises the authority under the Consolidation Act to pass appropriate orders with regard to map prepared during the survey and such jurisdiction is not outsted by statutory limitation, then the question of res judicata cannot arise because the legislature itself has authorised the authority under the Consolidation Act to review the entries in the record of rights and make corrections in the map prepared during such operations. So far as the last issue is concerned, it is purely a question of title based on facts and this cannot be decided under the writ jurisdiction. 6. For the aforesaid reasons, I do not find any merit in this application, which is accordingly dismissed. The petitioners, if so advised, may assail the correctness of the impugned order by filing a suit before the civil court of competent jurisdiction. However, in the facts and the circumstances of the case, there will be no order as to costs.