Bihar Rajya Adhivakta Sangh v. State Of Bihar — 1993 DIGILAW 241 (PAT)

Judgment S.B.SINHA, J. 1. The petitioners in this application have questioned a letter dated 16/07/1992 addressed by the Deputy Secretary of the Revenue and Land Reforms department to the Director Consolidation Bihar Patna wherein the addressee have been directed to postpone the scheme of consolidation operation in the entire State of Bihar purported to be on the basis of a declaration to that effect made by the Chief Minister on the floor of the Legislative Assembly. 2. The petitioner No. 1 is an association of Advocates generally practising in the Directorate Consolidation. The petitioner No. 2 is the President of the said Association. 3. Admittedly the Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the said Act) has been given effect to by the State of Bihar in large number of village. 4. The following chart will demonstrate the extent of the Consolidation scheme undertaken by the State. Total District u/S. 3 of the Act Total Anchal u/S. 3 of the Act Total Villages Villages notification u/S. 3(1) of Act Area u/S. 3 Villages where scheme u/S. 3 has been confirmed 1 2 3 4 5 6 25 2 22,258 16,014 56.083 Lakh Acre land. 14,826. Villages where delivery of possession took place. Total village where Khatian has been preprepared. Villages R.R. according to chak khatian. Proposed villages under S. 26A of the Act. Actual villages in respect of which notifications under S. 26A have been issued. 7 8 9 10 11 11,904 11,376 4,060 5,390 4,666 @@@ 5. From the aforementioned table, it is evident that the Consolidation operation was started in the State of Bihar in a large number of villages and in many of them has come to a close. 6. The Chief Minister of the State of Bihar, however, made a statement on the floor of the legislative assembly that the consolidation scheme shall not be given any further effect in the State. The aformentioned impugned letter dated 16-7-1992 has been issued pursuant to the aforementioned declaration. 7. In this case a counter affidavit was filed by the Respondents at the stage of admission on 18-8-1992 wherein inter alia it has been stated that the implementation of the Consolidation scheme has temporarily been suspended till further decision of the State of Bihar and no final decision had been arrived at. 7. In this case a counter affidavit was filed by the Respondents at the stage of admission on 18-8-1992 wherein inter alia it has been stated that the implementation of the Consolidation scheme has temporarily been suspended till further decision of the State of Bihar and no final decision had been arrived at. In the said counter affidavit, it has been stated: "That many short-comings of the Consolidation scheme have come in to knowledge of the State Government and therefore, the State Government has taken this temporary decision of suspension of the Consolidation operation for time being, to enable itself to review the whole matter and take appropriate steps. That, it was felt that in spite of colossal expenditure the scheme has not given the desired result, and therefore the Government wants to have full consideration of the matter with open mind with view to identify the short-comings of the scheme and to find out ways to overcome the same and to take final decision regarding future course of action in this regard." 7A. Mr. Kamal Nayan Choubey, the learned Senior Counsel appearing on behalf of the petitioners submitted that as a large number of notifications under Sec. 3 of the said Act have been issued, the State could not pass the impugned order as the notification made under Sec. 3 could have been cancelled only in terms of Sec. 4A thereof. It was further submitted that a notification under Sec. 4A can only be issued for the reasons enumerated in Rule 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Rules and not otherwise. 8. It was also submitted that the impugned letter dated 16-7-1992 as contained in Annexure-1 to the writ application does not even satisfy the requirements of Art. 162 of the Constitution of India. 9. It was further submitted that in view of the suspension of the Consolidation scheme all the adjudicative process with regard to the question of title, preparation of chak and other matters have come to a complete standstill resulting in creation of a chaotic situation. 10. It has been submitted that in many cases, as would appear from the figures as noticed hereinbefore, even certificates of transfer have been issued and thus the Holders of such certificates have become the owners of the lands covered thereby. 11. 10. It has been submitted that in many cases, as would appear from the figures as noticed hereinbefore, even certificates of transfer have been issued and thus the Holders of such certificates have become the owners of the lands covered thereby. 11. The learned Advocate-General appearing for the Respondents, on the other hand, submitted that the State has unfettered power to suspend the operation of the Consolidation scheme as a new scheme has to be evolved so as to make the consolidation scheme more effective and beneficial to the Public at large. 12. The learned Advocate-General, when questioned, however, admitted that no notification under Sec. 4A of the said Act has been issued. 13. Secs. 3 and 4A of the said Act which are material for the purpose of this case are reproduced hereinbelow: "3. 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 Panchayat, if any, the police station, the offices of the Anchal Adhikaris and collection of rent in such area. 4A. Cancellation of notification under Sec. 3- (1)- it shall be lawful for State Government at any time to cancel the notification made under Sec. 3 in respect of the, whole or part of the area specified therein. (2) Where a notification has been cancelled in respect of any unit under Sub-sec. (1) such area shall, subject to the final orders relating to the correction of land record, if any, passed on or before the date of such cancellation, ceases to be under consolidation operations with effect from the date of the cancellation." 14. The State of Bihar in exercise of its power conferred upon it under Sec. 40 of the Act has made Rules known as Bihar Consolidation of Holdings Rules 1958. "3. Cancellation of notification under Sec. 4 of the Act. The State of Bihar in exercise of its power conferred upon it under Sec. 40 of the Act has made Rules known as Bihar Consolidation of Holdings Rules 1958. "3. Cancellation of notification under Sec. 4 of the Act. The notification made under Sec. 3 of the Act may, among other reasons, be cancelled in respect of the whole or any part of the area on one or more of the following grounds, namely:- (a) the area is under a development scheme of such a nature as when completed would render the consolidation inequitable to a section of the peasantry: (b) the holdings of the village are already consolidated for one reason or the other and the raiyats are generally satisfied with the present position: (c) the village is so torn up by party factions as to render proper consolidation proceedings in the village very difficult; and (d) a co-operative society has been formed for carrying out cultivation in the area of after pooling all the land of the area for this purpose. 15. Before advertising to the question raised in this application, a birds eye view of the scheme of the Act may be noticed: Sec. 2 of the said Act contains interpretation clauses defining various words used therein. Sec. 3 of the Act provides for power of the State Government to declare its intention to make a scheme for consolidation of holdings in the area by issuing a notification in the official gazette with the object of effecting consolidation of holdings for the purpose of better cultivation of lands in the area. Sec. 4 provides for the effect of a notification under Sec. 3(1) of the Act. 16. Sec. 4 of the Act provides for the effect of notification under clause 3. 17. By- reason of Sec. 4(c) of the aforementioned Act any suit or other legal proceeding abates. The effect of Sec. 4(c) is very far-reaching. Sec. 5 of the said Act prohibits transfer of any land after the date of publication of preparation of register of lands and statement of principles under Sub-sec. (1) of Sec. 10 in the notified area by way of sale, gift, exchange, of partition without the previous sanction of the consolidation officer. Sec. 6 of the Act provides for procedures for grant of sanction. 18. (1) of Sec. 10 in the notified area by way of sale, gift, exchange, of partition without the previous sanction of the consolidation officer. Sec. 6 of the Act provides for procedures for grant of sanction. 18. Sec. 7 provides constitution of village Advisory Committee and in terms of Sec. 8 up-to-date records of right are required to be prepared before consolidation. A register of land is to be prepared in terms of Sec. 9. 19. Sec. 10(2) enables a person to file petition disputing the correctness and nature of the entries in the records or in the statement of principles. Other Sub-sections occurring in Sec. 10 provide for the manner in which such objections have to be dealt with and also provide for an appeal against an order passed by the Assistant Consolidation Officer or Consolidation officer. 20. Procedures have been laid down as to how the draft scheme shall be prepared, published"and revised; objections to be disposed of revised draft scheme to be prepared and publication of statement of scheme before the Director Consolidation and other matters. In terms of Sec. 15 of the said Act, the Consolidation Officer has been empowered to grant to every raiyat to whom a holding has been allotted pursuant to the scheme of consolidation a certificate in the prescribed form containing prescribed particulars. In terms of Sec. 16 of the Act a confirmed scheme has to be treated as finally published record of rights. Sec. 17A of the Act authorises the Collector to allow the raiyats to enter into such possession of the new holdings allotted to them. 21. Sec. 18 of the Act provides for transfer of encumbrances. By reason of Sec. 22 of the Act, no provision of any law for the time being in force, imposing restriction on, or providing for payment of landlords registration fee for the transfer of any land, shall apply to transfer involved ip, carrying out any scheme of consolidation, holdings under the Act. 22. Sec. 26A of the Act provides for close of the Consolidation operations and mandates the State Government to issue notification as soon as may after fresh maps and records have been prepared and certificates of transfer have been issued to the raiyats under the Scheme. 23. Sec. 32 of the Act provides that transfer of any lands or fragment contrary to the provisions of this Act shall be void. 24. 23. Sec. 32 of the Act provides that transfer of any lands or fragment contrary to the provisions of this Act shall be void. 24. Sec. 34 of the said Act provides for delegation of power. Sec. 35 empowers the Direcor of Consolidation to call for and examine records of any case or proceeding taken by an authority inferior to him. Sec. 37 of the Act expressly bars the jurisdiction of the civil courts. Sec. 37A of the Act, provides that the authority under the Act shall be deemed to be courts. 25. In terms of Sec. 37B of the Act, the authorities have the powers and privileges vested in the civil courts in certain matters. 26. In Ram Singashan Pathak V/s. K.P. Sinha reported in AIR 1989 Pat 39 it has been held at page 46:- "From different provisions of the Act and the Rules as quoted hereinbefore, it is evident that the Act is a self-contained Code for the purpose of consolidation of agricultural lands within the State. Secs. 4(c) and S. 37 of the said Act indicate the intent and object of the legislature that the provisions of the Act alone would provide the forum for determination of all issues raised before the Consolidation Officers excluding the jurisdiction of the Civil Court or abatement of the suits pending before it in terms of Sec. 4(c) thereof has been the subject matter of various decisions of this court and, as such the same need not be discussed once over again." The court held that the authorities under the said Act are courts within the meaning of Sec. 3 of the said Act. 27 In Kalika Kuer V/s. State of Bihar, reported in 1989 PLJR 1203 a Full Bench of this Court of which I was a member has also held that the Consolidation Authorities are deemed to be Courts of limited jurisdiction"by a fiction of law. 28. From the scheme, object and purport of the Act, as noticed hereinbefore, has to be, therefore, held that the said Act is self contained Code providing for creation of new rights and obligations of the parties, except in certain cases as for example an adjudicative power on a pure question of title, the decision of the consolidation authorities is final. 29. 29. In this view of the matter, there cannot be any doubt that by reason of abrupt suspension of the entire scheme, the machinery for implementing the same had come to a grinding halt resulting in creation of a chaotic situation. In view of the fact that the provisions of the Act are still operative, the litigants are not in a position to ventilate their grievance. A person intending to sell his own land cannot do so as there is no machinery to obtain previous permission, therefor. In cases where adjudication with regard to the right, title and interest or possession has been made by some authorities but despite the fact that an appeal or revision is pending against such orders, the same may be utilised in other proceedings e.g. a proceeding under Secs. 144 and 145 of the Cr.P.C. As the entire machinery whether adjudicative or for implemention of the scheme has come to halt by reason of the impugned order, the cases which stood abated in terms of Sec. 4(c) of the Act shall also remain pending for indefinite period inasmuch as such proceedings in relation thereto can be revived only upon issuance of a notification under Sec. 26A of the Act. 30. There cannot be any doubt whatsoever that the power of the State Government to cancel a notification under Sec. 3 of the Act is confined only to Sec. 4A thereof. Admittedly no notification under Sec. 4A of the Act has been issued. The impugned letter dated 16-7-1992 as contained in Annexure 1 to the writ application is not a notification under Sec. 4A. The said letter also does not conform to the provision of Article 162 of the Constitution of India. The State acting under the provisions of the Act acts as a statutory authority and thus it has to act within the four corners of the statute. It is well known that a statutory authority must follow the procedures laid down under the statute so as to exercise its jurisdiction or not at all. 31. The State under its executive power has no jurisdiction to suspend the operation of a legislative act. The same can only be done in exercise of its legislative power. In this case, even a valid executive order has not been passed by the State. 31. The State under its executive power has no jurisdiction to suspend the operation of a legislative act. The same can only be done in exercise of its legislative power. In this case, even a valid executive order has not been passed by the State. The directive of the State as reflected in the order dated 16-7-1992 must thus, be held to be arbitrary and wholly without jurisdiction. 32. An order passed without application of mind and in indecent haste cannot but be deprecated being mala fide in law. 32A. In this view of the matter the impugned order as contained in Annexure I dated 16-7-1992 cannot be sustained. 33. Let a writ of mandamus be issued to the respondents commending upon the State Government to forbear from giving effect to or acting pursuant to, or in furtherance of the said letter dated 16-7-1992. As a consequence of the order, all the authorities under the Act are directed to act in terms of the provisions of the said Act and the rules framed thereunder. 34. Before parting with this case, however, we must express our anguish over the fact that such a hasty step was taken to suspend the operation of the Act without understanding the implication thereof and that too in any manner not provided for under law. It is ail the more unfortunate as although the State has in its counter-affidavit, stated that the suspension of the scheme has been made by way of a temporary measure so as to come out with a better scheme, but despite the fact that about 10 months have elapsed, thus so-called better scheme has not yet seen the light of the day. 35. It is difficult to comprehend the role of a welfare State in taking such a hasty measure and then sitting tight over the matter for a long time. 36. For the reasons aforementioned, this application is allowed the impugned order is quashed with costs which is quantified at Rs. 2,500.00. 37. A. N. ATTURVEDI, J. :- I agree. Petition allowed.