Shambhu Nath Pandey v. State Of Bihar — 1995 DIGILAW 729 (PAT)

Judgment R. M. Prasad, J. 1. As. in both the writ applications, the order impugned is common, with the consent of the parties they have been heard together and are being disposed of by this common judgment/order. 2. In both the writ applications the petitioners pray for quashing of the order dated 9.11.1983, passed by the joint Director, Consolidation (Muf-fail),patna in exercise of the powers under Sec.35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act (in short, the Act 8) affirmingr the order of the Deputy director of Consolidation and rejecting the claim of the petitioners over the disputed property. 3. The dispute in the first case relates to 4 decimals of land of Plot no.422 and in the second case in relation to 5 decimals of land of Plots No.418 and 419 of New Survey Khata No.263 situated in Mouza Dharampura. Thana Arrah Mufassil, District Bhojpur. 4. The case of the petitioners in the two writ applications is that after initiation of consolidation proceeding in the area when they learnt about the entry made in the revisional survey as unabbad Bihar Sarkar, they filed objections under Sec.10 (2) of the Act before the Consolidation Officer. The petitioner of the second case had also instituted a case bearing No.2454/71 under Sec.106 of the Bihar Tenancy act in respect of the aforementioned entry made in regard to Plots No.418 and 419 in which the Land Assessment officer, by his order dated 28.5.1973 passed a decree in his favour and consequently, he also got the amended new Khatiyan. . A copy of the order passed by the Assistant Settlement Officer in Cases No.3454 of 1971 has been annexed as Annexure 1 to the second writ case. The Consolidation officer disposed of the objections in favour of the petitioners of the two writ applications, vide order dated 16.4.1979 and 21.12.1975, respectively and, accordingly draft scheme was prepared. 5. Undisputedly, no objection was ever raised in regard to the said draft scheme by any person, including the state of Bihar whose right and interest, if any, was likely to be prejudiced or affected. Thereafter, under Sec.130 of the Act, the said draft scheme was submitted to the Director of Consolidation for confirmation. However, vide order dated 30.11.1981 (Annexure 3), the deputy Director of Consolidation (respondent No.4) at that stage re-examined the findings of the. Thereafter, under Sec.130 of the Act, the said draft scheme was submitted to the Director of Consolidation for confirmation. However, vide order dated 30.11.1981 (Annexure 3), the deputy Director of Consolidation (respondent No.4) at that stage re-examined the findings of the. Consolidation Officer and rejected the claim of the petitioners. The petitioners filed revision Cases No.1000/83 and 999/83, respectively against the aforementioned order of the Deputy Director of Consolidation under Sec.35 of the Act before the Director, Consolidation, bihar, Patna, who affirmed the order of the Deputy Director of Consolidation by the impugned common order passed on 9.11.1?" 6. Undisputedly, no appeal or revision was preferred against the aforementioned order of the Consolidation Officer under the Act nor any objection under Sec.12 of the act was ever raised. 7. It is contended by Mr. Dhrub narayan, learned counsel appearing for the petitioners in both the cases that the order of the Deputy Director of consolidation as well as the impugned order of the Joint Director affirming the said order passed by the Deputy director of Consolidation are wholly without jurisdiction inasmuch as it was not open for the Deputy Director or the Director of Consolidation to reopen the questions of fact decided by the Consolidation Officer in purported exercise of the powers under Section 130 and/or Sec.35 of the Act under which they were obliged to confirm the draft consolidation scheme if no objection was filed within the time specified in Sec.12 of the Act. 8. Learned counsel for the State has not been able to point out any other provision in the Act which vests power in the Deputy Director to annul the final decision under Sec.10 and/or under Sec.12 of the Act. suo moto. 9. After the initiation of the scheme, the consolidation authority has been vested with the powers under sections 9 and 9-A of the Act to prepare the register of lands and statement of principles which are to be published under Sec.10 of the Act. Section 10 (2) provides for filling of objection by any person to the said publication within 45 days disputing the correctness and nature of entries in the records or in the statement of principles. Under sub-section (3) of Sec.10 of the act, the Assistant Consolidation Officer is empowered to hear the objection and decides it, settle the disputes or correct the mistake by way of compromise. Under sub-section (3) of Sec.10 of the act, the Assistant Consolidation Officer is empowered to hear the objection and decides it, settle the disputes or correct the mistake by way of compromise. If the dispute is not disposed of on the basis of compromise, the case is to be forwarded to the Consolidation officer for disposal in accordance with the procedure laid down under sub-rules (3) and (9) of rule 6-D of the bihar Consolidation of Holdings and prevention of Fragmentation Rules, 1958. Under Sec.10 (6) of the Act any person aggrieved by an order passed by the Assistant Consolidation officer may file an appeal before the assistant Director of Consolidation within 30 days. Under Sec.10 (7) of the Act, the Consolidation Officer and the Assistant Director of Consolidation have been empowered to make local inspection before deciding an objection or an appeal, if he so desires. 10. Section 10-A of the Act prohibits filing of objection which ought to have been raised at the stage of publication of register of lands and statement of principles under section 10 (2) of the Act. Sec.10-B provides remedy for the matter relating to changes and transfers affecting any rights or interests as recorded in the register of land published under sub-section (1) of section 10 and for which cause of action had not arisen at the stage of preparation of records of rights and preparation of registers of land and before notification under Sec.26-A. Sec.10-B of the Act provides again re-publication of register of lands after the same is published under Sec.9 and after the objections are disposed of under Sec.10 and gives 20 days time for filing objection disputing the correctness and nature of entry in the register of lands or in the statements of principles on re-publication. And also if cause of action for such objection had not arisen earlier, Sec.10-D of the Act gives special power to the deputy Director of Consolidation for re-publication of the register of lands if he is satisfied that a large number of raiyats or under-raiyats could not avail of the opportunity to file their objections under sub-section (2) of Section 10 of the Act after recording reasons in writing. Sec.10-B of the Act gives power to decide the objections if filed after re-publication of register of lands under Sections 10-C and 10-D but imposes strict ban on re-opening of the dispute if already decided in accordance with the provisions of sub-sections (3), (4) or (5) or (6) of Sec.10 of the act on re- publication. Sec.11 of the Act lays down the manner in which the draft scheme shall be prepared. Sec.12 of the Act provides for publication of draft consolidation scheme and again an opportunity is given to the raiyats subject to the bar under Sec.10-A to file and objection within 30 days disputing the propriety and correctness of the entries in the draft consolidation scheme. Sec.12-A of the act provides the manner in which the objections are to be disposed of and also a remedy to the aggrieved person for filing and appeal before the Assistant Director of Consolidation within 30 days. Sec.12-B of the Act empowers the Consolidation Officer and the Assistant Director of Consolidation to revise the draft scheme if they are satisfied that a fair and proper allotment of land to the raiyat and under-raiyat is not possible without revising the draft scheme, after recording reasons in writing and after giving opportunity to various raiyats. Sec.13 of the Act empowers the Assistant director of Consolidation to confirm the scheme submitted before him if no objection is filed against the draft scheme under Sec.12 or if objections are filed and disposed of under section 12-A and then to publish the confirmed draft consolidation scheme in the village. 11. Thus, from the aforementioned provisions it is evident that if no objection is filed against the draft scheme or if objection is filed and disposed of under Sec.12-A of the Act, then under Sec.13 of the Act the assistant Director of Consolidation has to confirm the draft scheme submitted before him and publish the same in the village. He has not been vested with any power to hold any enquiry much less a fresh enquiry in regard to the matters which already stood concluded and became final prior to the stage of section 13 of the Act. The legislature cannot have the intention to vest power in the Assistant Director/deputy Director under Sec.13 of the act to disturb the final scheme prepared making the finality of the scheme a farce. The legislature cannot have the intention to vest power in the Assistant Director/deputy Director under Sec.13 of the act to disturb the final scheme prepared making the finality of the scheme a farce. Similar is the position in regard to the power of the Director of Consolidation under Sec.35 of the Act which vests power in him of Revision. 12. It is true that this Court is the case of Shiv Kumar Thakur V/s. State of bihar (1985) PLJR 986) has held the power of the Director under Sec.35 of the Act to be very wide but, in my opinion, undef the purported exercise of the said power, he cannot disturb the draft scheme of consolidation placed before the Deputy Director of Consolidation for confirmation under Sec.13 of the Act. Sec.35 of the act does not intend to give such a wide power to the Director of Consolidation, to vest power to the subordinate authorities, or to justify their illegal orders, which have been passed by them against the express provision of the Act under Sec.10-B of the Act which completely bars the subordinate authorities to re-open the disputes or entries, against which no objection had been filed at the stage of section 10 (2)or under Sections 10-C and D of the act. 13. The Supreme Court in its recent decision in the case of Ram dular V/s. Dy. Director of Consolidation, jaunpur and Ors. , JT 1994 (3) S. C.341, while considering the scope of similar power under Sec.48 of the U. P. Consolidation of Holdings Act, 1953, held that the Director under the said provision had power to satisfy himself as to the legality of the proceedings or as to the correctness, legality or propriety of any order other than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of he proceedings or regularity thereof it cannot assume to itself the jurisdiction of the orginal authority as a fact-finding authority by appreciating for itself of these facts de novo. 14. The Division Bench, judgment of this court has not dealt with this situation and the facts of that case are entirely different to the facts of the present cases. 14. The Division Bench, judgment of this court has not dealt with this situation and the facts of that case are entirely different to the facts of the present cases. If the power of Director under Sec.35 of the Act is construed to be too wide, it would amount to giving him sanction to usurp the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of the facts de novo. The object of section 35 of the Act is to empower the Director of Consolidation to see that the subordinate courts are not acting arbitrarily and illegally in exercise of their jurisdiction but not to assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of the facts de novo. 15. In the present cases, neither the Deputy Director nor the Joint director of Consolidation has considered the order passed under Section 106 of the B. T. Act in favour of the petitioners in respect of lands appertaining to Plots No.418 and 419, on the basis of which the Assistant Consolidation Officer decided the objections in favour of the petitioners. The deputy Director of Consolidation and the Joint Director of Consolidation (Respondents No.4 and 3, respectively)have also failed to appreciate that the state of Bihar never failed any appeal or revision either against the said order passed under Sec.106 of the B. T. Act or against the order passed by the consolidation Officer in exercise of the power under Sec.10 (2) of the Act which became final under sub-section (6) of Sec.10 of the Act. 16. For the reasons aforementioned, the writ-applications are allowed and the impugned orders dated 30-11-1981 of the Deputy Director of consolidation and dated 9-11-1983 of the Joint Director of Consolidation are quashed. However, in the facts and circumstances, there shall be no order as to costs. Petition Allowed.