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1994 DIGILAW 402 (PAT)

Kunj Bihari Singh v. Director of Consolidation, Bihar

1994-12-13

N.PANDEY

body1994
Order N. Pandey. J. This writ application under Articles 226 & 227 of the Constitution of India has been filed for an appropriate writ/direction, quashing the order dated 11.11.1993 in Revision Case No. 284 OF 1993 by the Director, Consolidation, Bihar, Patna, whereby, he has nullified all the proceedings and orders from the stage of Section 11 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter to be referred to as 'the Act') with respect to Village- Chanda Kewatiya on the ground of major irregularities, having been committed by the authorities in Chak formations. 2. Short facts of the case are these: A notification under section 3 of the Act for effecting consolidation of holdings was notified in the year, 1972. The preparation of register of land and disposal of objection of the landholders with respect to the village in question was completed in the year, 1980. The scheme was finally published and confirmed with effect from 21.2.1983. There after, all the consequential formalities i.e. distribution of Khatiyan, delivery of possession of the lands, formation of Chaks and grant of certificate of transfers were complete by 24th of August, 1992. 3. It appears the respondents no 4 to 5 filed an application before the Director Consolidation, making a grievance that some of the reiyats of village have been given land even in orchard, instead of lands of good quality. There was one Rajdeo Pandey who had been given major Chak at a place where Krishna Kant should have been given. 4. It appears from the impugned order. The Director, having collected information from the Consolidation Officer, came to a conclusion that there has been major irregularities in formation of Chaks in the village. Therefore, he nullified all the proceedings and orders, decided so far, and directed the Consolidation Officer to consult the Members of the Advisory Committee and take steps for fresh consolidation 5. A counter affidavit has been filed on behalf of the respondents, taking a stand that with respect to the irregularities, a grievance was also made before the Chief Minister. Accordingly the matter was enquired into by the Join Director in presence of the villagers. Therefore, it was thought proper that in given circumstance, an order under section 35 of the Act, nullifying entire proceedings and orders, passed so far, would meet the ends of justice. 6. Accordingly the matter was enquired into by the Join Director in presence of the villagers. Therefore, it was thought proper that in given circumstance, an order under section 35 of the Act, nullifying entire proceedings and orders, passed so far, would meet the ends of justice. 6. Learned counsel, appearing for the petitioners contended that the order of the Director, Consolidation, cancelling all the final orders, passed by the authorities so far, at such a stage is highly unjust and improper. He contended that from the counter affidavit and different papers, brought on record. It has been established that the impugned decision of the Director was purely on account of political interference and for extraneous considerations. 7. It was next contended that from bare reference to certain provisions of the Act, for example Section 6 (4), 10 (6), 12 A(2), it would indicate that under these provisions orders passed by the authorities are final, except otherwise provide under the Act. Therefore if aggrieved party failed to challenge such prders at the proper stage, they are stopped from challenging such decision at subsequent stage. 8. It is stated that the Director while exercising his power under section 35 of Act, had no jurisdiction to nullify the proceedings and orders, which had achieved the stage of finality without examining the records of particular case and hearing the parties. Without adopting the procedure prescribed under the Act. Right of the persons enjoying benefits of final orders, can not be snatched by a general order. 9. Besides the aforesaid, it has also been contended that a bare reference to the impugned order, it would indicate that the Director had no occasion to examine the facts of different proceedings and orders, passed by the authorities from time to time. He contended that simply because one or two irregularities were pointed out all the proceedings and orders, passed earlier, can not be nullified without giving a reasonable opportunity to the parties in whose favour such orders were passed. The power of the Director under section 35 of the Act can not be exercise arbitrarily or at any time. As per Rule 28 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Rule, an application under section 35 of the Act can be presented before the Director within 30 days from the date of order against an application is directed. 10. As per Rule 28 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Rule, an application under section 35 of the Act can be presented before the Director within 30 days from the date of order against an application is directed. 10. Learned counsel appearing for the respondents, on the other hand, submitted that the power of the director under section 35 of the Act is very wide and not subject to any limitations. The Director can nullify or set aside any proceeding or order, if correctness, legality or propriety of such proceedings or orders are challenged. Therefore with respect to Consolidation proceedings any irregularity or impropriety of any order or proceeding is brought to the notice of the Director, he can interfere and pass an appropriate orders in the interest of justice. 11. He further contended that from the statement made in the counter affidavit it would be evident that noticing certain irregularities committed by the authorities in formation of chak etc., a detailed enquiry was conducted, wherein, certain villagers convasse their grievances. Therefore, the Director had no option but to nullify all the proceedings and orders from the stage of Section 11 of the Act. 12. The question, therefore, is whether Director, Consolidation, was legally justified in nullifying all the proceedings of the village taken up and decided under the provisions of the Act, without considering the correctness, legality, propriety of the orders or correctness of the proceedings or even without giving opportunity to the persons in whose favour such proceedings were decided? 13. Admittedly from the very reference of the impugned order. It would indicate that none of the requirements, as indicated above, were fulfilled by the Director before taking such decision. In the counter affidavits an attempt has been made on behalf of the respondents to justify the decision of the Director by giving reference to certain irregularities and grievances of aggrieved parties before the Chief Minister and other authorities including the Director. 14. It would be appropriate to notice that there are plethera of decisions that orders. Passed by public authorities, without disclosing facts and justifying reasons, can not be supported or explained at a subsequent stage by filing a counter affidavit etc. The reasons in support of such decisions are to be traced out from the order itself. 14. It would be appropriate to notice that there are plethera of decisions that orders. Passed by public authorities, without disclosing facts and justifying reasons, can not be supported or explained at a subsequent stage by filing a counter affidavit etc. The reasons in support of such decisions are to be traced out from the order itself. In other words, if no reason in support of such decision is indicated .in the order, it can not be supplied subsequently, it can only be explained. In this regard a reference can be made to the case of Commissioner of police Vs. Gordhandas Bhanji A.I.R. 1952 S.C.16. 15. The submission of the respondents is that Section 35 of the Act vests supervisory power with the Director for rectifying a wrong committed by a Consolidation authority Therefore no restriction can be imposed against the Director in exercise of his power under this provision. It was urged if, the Director was satisfied that there had been large scale of irregularities and improprieties in the proceedings by the Consolidation authorities he had full jurisdiction to nullify all the final order even without giving opportunity to the persons in whose favour such orders were passed. 16. It would be proper to notice Section 35 of the Act. As inserted by Act 27 of 1975 hereunder: "Revision and reference- The Director of consolidation may of his own notion or on the application of any part or on reference being made by any subordinate, authority call for and examine the record of any case decided or proceedings taken by such authority for the purpose of satisfying himself as to the regularity of the proceeding or as to the correctness, legality or propriety of any order passed by such authority in the case of 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." On a plain reading of session 35 it would appear that the director can exercise his jurisdiction even one suomotu or on application of any party this court from time to time had occasion to examine the provisions of Section 35 of the Act in the maters relating to the Jurisdiction of the Director. Reference can be made in the cases of Shiv Kumar Thakur Vs. The State of Bihar & anr. Reference can be made in the cases of Shiv Kumar Thakur Vs. The State of Bihar & anr. 1985 P.L.J.R 986 and full Bench decision of Allahabad High court in the case of Ramakant Singh Vs. Deputy Director of Consolidation, U.P. & ors. A.I.R. 1975 All, 126. It has been consistently held that under Section 35, the Director can examine any record whatever it was a fit case for exercising revisional jurisdiction suomotu with respect to the proceedings, taken by the Consolidation authorities, for satisfying himself as to the correctness, legality or propriety of orders, passed in any case of proceeding. 17. A question thus arised weather the Director without considering the correctness legality or propriety of the orders or proceedings or even without noticing the parties, in whose favor such orders were passed, can nullify all the orders and proceedings with respect to entire village? In my view, no such power has been vested with the Director under Section 35 of the Act. From a pain reading of Section 35 of the Act, it is clear that the Director has to satisfy himself as to the legality and propriety of a proceeding or any order of the authorities, before taking a decision to nullify such proceeding or order. 18. In the present case, I have already noticed none of the records of any proceedings or orders, taken up or decided so for by the authorities, were examined or considered by the Director in terms of the Section 35 of the Act. 19. In the case of Ram Duiar Vs. Dy. Director of consolidation Janupur & ors, Judgment Today 1994 (3) SC 341, the Supreme Court while construing the scope of Section 45 of the U.P Consolidation of Holdings Act, which is a parallel provision of Section 35 of the Act, pointed out thus. "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 other than inter locutory order passed by the authorities under the Act. But in considering the correctness legality or property of the order of 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. But in considering the correctness legality or property of the order of 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 been considered by the authorities in recording a finding of fact or a law or the conclusion reached by it is based on no evidence, any patent illegality or it property had been committed or there was any procedural irregularity, which goes to the rest of the matter, had been committed in recording the order or finding. 20. There is no doubt under Section 35 of the Act, the Director in order to satisfy himself as to correctness and propriety of the orders and for proceeding can examine any record or order for his satisfaction. But he is not vested with such power no nullify all the proceedings or orders without examining even the records of such proceedings as also with out giving opportunity to the parties in whose favor such proceedings were decided. 21. It is well known that Consolidation authorities are empowered to decide sight, title and interest of the parties with respect to a particular land. As per Section 37 the Act, no civil court shall entertain any suit or application to very or set aside any decision or order, passed under this Act. The legislature while making such provisions, could not have been presumed that the orders, which can not be challenged before the Civil Court can be cancelled by the Director even without looking to the records of such cases. The Director is required to be careful and judicious, while taking a decision no nullify any proceeding or order. It can not be on pressure or dictate of the political authorities. 22. It the Director is allowed to nullify all the proceedings and orders without examining the relevant records of the Consolidation authorities even without giving any notice to the effected parties, it will create anomalous situation. In other words, if he is allowed to cancel all proceedings and others without looking to the records, he may nullify even order, passed under Section 35 of the Act or the orders passed by the High Court under Article 226 of the Constitution. In other words, if he is allowed to cancel all proceedings and others without looking to the records, he may nullify even order, passed under Section 35 of the Act or the orders passed by the High Court under Article 226 of the Constitution. Because in absence of records or the parties, how can be notice such facts. 23. Thus, in my considered view, while exercising power under Section 35 of the Act before taking any decision, which may be adverse to the interest of any party, the Director is required to consider the correctness, legality or propriety of the order of proceeding after giving opportunity to the parties, who may be affected by such decision. 24. For the reasons, Stated above, the impugned order can not sustain. In result, the application succeeds to the extent, indicated above, and the impugned order is hereby quashed. 25. Respondent no. 1 is directed to examine the case of the petitioners vis-a-vis respondent no. 4 and 5 or any other case, in which such complaints are made and pass appropriate order in the light of the observation, made above, after giving full opportunity to the parties. Application allowed in part.