Bital Sundi v. State Of Bihar — 1996 DIGILAW 238 (PAT)

Judgment S.K.Chattopadhyaya, J. 1. The petitioner has impugned the orders dated 30.4.84 (Annexure-3), 30.5.85 (Aruiexure-4) as well as 16.10.86 (Annexure-5) by reason of which the respective authorities under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act), decided the matter of pre-emption in favour of respondent No. 5. 2. For appreciation of the arguments advanced on behalf of the parties a few may be stated: The original respondent No. 5, Mostt. Dukhani Devi who had subsequently been substituted by her legal heirs and representatives in this Court, filed a petition before the Deputy Collector, Giridih fro pre-emption and by order dated 8.7.80 her said petition was rejected. The said case was registered as case No. 19/79-80. Against that order respondent No. 5 preferred Land ceiling appeal 9/80-81 /3. 23/81-82 before the Additional Collector and the same was dismissed holding that the same had abated in view of the amendment made in the Act by reason of which Sec. 32-A was inserted in the parent Act. Respondent No. 5 moved this Court in CWJC No. 1962/81 (R) against the said order dated 5.9.81 by which the aforesaid appeal was held to have been abated. 3. A learned Single Judge of this Court by his order dated 8.7.87 set aside the said order on the ground that the aforementioned provision of Sec. 32-A of the Act was later on amended with retrospective effect by reason of subsequent Ordinance and now the Legislature itself has provided that all such appeals which abated, shall stand restored. This Court remitted the matter to the Additional Collector, Giridih for a decision on merits in accordance with law. However, it appears that the Additional Collector heard the appeal filed by respondent No. 5 and by order dated 30.4.84 allowed the appeal by setting aside the order dated 8.7.80 as contained in Annexure-1. This order of the Additional Collector is Annexure-3 to the writ application. 4. Being aggrieved by this order the petitioner filed a review petition before the Additional Collector which was dismissed by order dated 30.5.86 as contained in annexure-4. The petitioner moved the Member Board of Revenue in Giridih case No. 471/86 against the order dated 30.5.86 by which the review application of the petitioner was rejected. After hearing the parties, the Member Board of Revenue, refused to admit the appeal. 5. The petitioner moved the Member Board of Revenue in Giridih case No. 471/86 against the order dated 30.5.86 by which the review application of the petitioner was rejected. After hearing the parties, the Member Board of Revenue, refused to admit the appeal. 5. Challenging the orders passed by the Member Board of Revenue and the Additional Collector, the petitioner moved this Court in the present writ application. 6. Mr. Khatri learned Counsel for the petitioner submits that when the appeal filed by respondent No. 5 was held to be abated and as such not maintainable by order dated 5.9.81, after two and half years the Additional; Collector could not have heard and allowed the said appeal. According to him when the appeal filed by respondent No. 5 was held to be adapted by the appellate court, the Additional Collector had no power to revive the said appeal and to hear it on merits. His second contention is that when the petitioners review application was dismissed by the Additional Collector holding that there is no provision in the Act for review, the same principle should have been adopted by the Additional Collector while allowing the appeal filled by respondent No. 5 which had already abated. Next contention of Mr. Khatri is that the Member Board of Revenue, without admitting the revision, could not have dismissed the same in limine. Lastly, it is contended that the Additional Collector allowed the appeal on 30.4.84 when admittedly the writ petition filed by respondent No.5, namely CWJC No. 1962/81 (R) was pending. According to Mr. Khatri this Court allowed the said appeal by order dated 8.7.87 by remitting the matter before the Additional Collector but before that the Additional Collector himself had disposed of the appeal on 30.4.84. 7. Mr. P.K. Prasad, learned Counsel appearing on behalf of respondent No. 5, on the other hand, submits that when by subsequent legislation the provision of Sec. 32-A was amended with retrospective effect, the Additional Collector was well within his jurisdiction to hear the appeal on merit and decide the same. According to him the High Court in the writ application filed by respondent No. 5 held the same view that the appeal which was abated, stood restored and, as such, there is no illegality in the order passed by the Additional Collector in disposing the appeal. Countering the argument of Mr. Khatri, Mr. According to him the High Court in the writ application filed by respondent No. 5 held the same view that the appeal which was abated, stood restored and, as such, there is no illegality in the order passed by the Additional Collector in disposing the appeal. Countering the argument of Mr. Khatri, Mr. Prasad has contended that the review application filed by the petitioner was rightly rejected by the Additional Collector because there is no provision in the Act fro reviewing the order passed earlier. Defending the order of the Member Board of Revenue, it is submitted that the revision was directed against the order rejecting the review application which was on the basis of a judgment of the High Court passed in CWJC No. 1438/79 and, as such, the Member Board of Revenue rightly refused to admit the appeal. 8. Considering the facts and circumstances, in my opinion, the petitioner has not made out any case for interference by this Court. It is true that on 5.9.81 the appeal filed by respondent No. 5 was held to be not maintainable in view of the Ordinance by which Sec. 32-A was inserted in the Act. However, this provision was further amended with retrospective effect and as observed earlier, this Court also found that all such appeal which were held to be abated, stood restored. Records of CWJC No. 1962/81 (R) does not reveal that during the pendency of that writ application further proceedings in the pendency of that writ application further proceedings in the court below were stayed. In such view office matter, if on noticing the change in law, the Additional Collector heard the appeal and decided the same even before the order of this Court on 8.7.87, in my view, the same is not vitiated in law. On the other hand, it can be said that the view taken by the Additional Collector finds support from the order of this Court by which it was held that all these appeals stood restored. I find no illegality in the order of the Additional Collector. 9. The challenge of the petitioner to the dismissal of the review application is also not tenable inasmuch as the Additional Collector rightly held that review is not permissible as there is no provision in the Act, The petitioner did not impugned the order dated 30.4.84 allowing the appeal before the Member Board of Revenue. 9. The challenge of the petitioner to the dismissal of the review application is also not tenable inasmuch as the Additional Collector rightly held that review is not permissible as there is no provision in the Act, The petitioner did not impugned the order dated 30.4.84 allowing the appeal before the Member Board of Revenue. On the contrary he challenge the order dated 30.5.86 by which his review application was dismissed. In my view the Member Board of Revenue has rightly refused to entertain the appeal. No other point has been canvassed by Mr. Khatri. 10. As far as merits of the case is concerned, in my view, the findings of the appellate court is based on facts and after appreciation of evidences and, as such, this Court will not be justified in interfering with the said order. 11. In the result, I find no merit in this application which is, accordingly, dismissed but without any order as to costs.