Mukhlal Singh v. State Of Bihar — 1996 DIGILAW 60 (PAT)

Judgment S. N. Jha, J. 1. This writ petition arises out of a proceeding under the bihar Consolidation of Holdings and prevention of Fragmentation Act, 1956 (in short, the Act ). The petitioner has challenged the validity of the revisional order as contained in Annexure-2. It is urged that the officer, namely, Sri A. K. Siha described as Research Officer, directorate of Consolidation, was not competent to pass the order. It is said that Sri Sinha being an officer of the rank of Deputy Collector ought not to have set in revision and set aside the order passed by an officer of the rank of Additional Collector exercising the appellate powers as Deputy Director of consolidation. 2. The foundational facts are not in dispute. The Director of Consolidation in his affidavit has admitted that the delegation of power in favour of Sri a. K. Sinha was not appropriate. He has, however, taken the plea that the mistake occurred on account of the faulty language of the relevant provisions of the Act. He has stated that the Government is being moved for necessary amendment in the Act. Sri A. K. Sinha has also filed an affidavit taking shelter of the provisions of Sec.34 (2) of the Act. He has stated that it has never been the practice in the Consslidation Directorate that the officer hearing revision-petitions should be senior in rank to the officer who had passed the appellate order as Deputy Director of Consolidation. 3. Section 35 which contains the provision regarding revision, as it originally stood, was in the following terms : "power of State Government to call for proceedings-The State Government may, at any time, for the purpose of satisfying itself as to the legality or propriety of any order passed by an officer under this Act, call for and examine records of any case pending before or disposed of by such officer and may pass such order as he thinks fit: provided that no order shall be varied or reversed without affording the parties interested an opportunity of being heard. " Sec.34 contains provisions regarding delegation of powers. Sub-section (1)thereof, as it originally stood and stands even today, provides, "the State Government may, by notification in the Official Gazette, delegate any of its powers or functions under this Act to any officer not below the rank of a Collector. " Sec.34 contains provisions regarding delegation of powers. Sub-section (1)thereof, as it originally stood and stands even today, provides, "the State Government may, by notification in the Official Gazette, delegate any of its powers or functions under this Act to any officer not below the rank of a Collector. " Sec.34 (2) contained (and contains even now) similar provision regarding delegation of powers and function of the director of the Consolidation under the Act "to any officer not below the rank of a deputy Collector. " 4. From a general survey of the provisions of the Act as they originally stood, it would appear that certain powers and functions were conferred upon the State Government and the director of Consolidation respectively. The Director amongst other things was authorised to hear appeals against an order of the Consolidation Officer refusing to sanction transfer or partition of land under Sec.6 (4) of the act, and in the matter of decision on objection to the entries in the register of land under Sec.10 (4) of the Act. The Director had also the power to confirm the consolidtion scheme with or without modification and to return it to the Consolidation Officer for preparing a fresh scheme or modified scheme under Sec.13 (6) of the Act. At that stage the revisional power under Sec.35 was vested in the state Government, as noticed above. In course of time, in 1975 by Act 27 of 1975, large scale amendments were made in the Act. The appellate powers under Sections 6 (4) and 10 (4) were vested in the Assistant Director of consolidation while the revisional power under Sec.35 was vested in the Director. Sec.34 of the Act, however, remained as it stood before except that a new provision was inserted as sub-section (3) For exercising the powers and performing duties by any authority superior to the authority to whom the power and duties have been assigned under the Act. This really was merely intended to give a statutory texture to the power already possessed by superior authority. 5. As a result of these amendments the revisional power now vests in the Director while the appellate power vests in the Assistant Director of consolidation. In practice, it is the Deputy director of Consolidation who have been exercising the appellate powers which is quite permissible and valid because of the provisions of Sec.34 (3)of the Act. 5. As a result of these amendments the revisional power now vests in the Director while the appellate power vests in the Assistant Director of consolidation. In practice, it is the Deputy director of Consolidation who have been exercising the appellate powers which is quite permissible and valid because of the provisions of Sec.34 (3)of the Act. The question is as to whether the delegation of the revisional power to an officer of the rank of deputy Collector is permissible. As noticed above, it is not in dispute that the revisional power has been exercised by an officer of the rank of Deputy collector while the appellate powers have been exercised by an officer of the rank of Deputy Collector while the appellate powers have been exercised by an officer of the rank of Additional Collector. 6. Section 35 as amended by Act 27 of 1975 runs as follows : "revision and reference.-The Director of Consolidation may of his own motion or on the application of any party 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 or any order passed by such authority in the case or proceeding, and may after allowing the parties concerned an opportunity of being heard, make such order in the case or proceeding as he thinks fit. " 7. "director of. Consolidation" has been defined under Sec.2 (4) of the act to mean "the officer appointed as such by the State Government to exercise the power and perform the duties of Director of Consolidation under this act or the rules made thereunder and shall also include an Additional Director of consolidation and a Joint Director of Consolidation. "the terms "deputy Director of Consolidation" and "assistant Director of Consolidation" have been defined under Sections 2 (4a)and 2 (4b) in the following manner : " (4a) "deputy Director of Consolidation" means an officer not below the rank of additional District Collector appointed as such by the,state Government to exercise such power and perform such duties of the director of Consolidation as may be delegated to him by the State Government and shall include Assistant Director of Consolidation. " " (4b) "assistant Director of Consolidation" means an officer not below the rank of deputy Collector appointed as such by the state Government to exercise the power and perform the duties of an Assistant Director of Consolidation under this Act or the rules made thereunder. " 8. It would thus appear that while the "director of Consolidation", in terms, includes Additional Director or joint Director of Consolidation, Section 35 of the Act read with Sec.34 permits delegation in favour of a deputy Collector. But if the Director of Consolidation or the delegated authority were to exercise the revisional power will it be correct to permit delegation in favour of an officer of that rank (Deputy Collector) when the deputy Director of Consolidation, in terms, cannot be below the rank of additional Collector According to me, the answer must be in the negative. It would be not only against the administrative norms but also contrary to the statute. The anomaly has obviously crept in because of the words "deputy collector" occurring in Sec.34 (2) of the Act. 9. I have already stated above that the statute contemplates exercise of powers and performance of duties by both the State Government and the director of Consolidation the Act originally stood the powers and functions of the State Government could be delegated to an officer not below the rank of Collector. Earlier it was the state Government which was to exercise the revisional power as well. Therefore, as the Act originally stood, the revisional power of the State government under Sec.35 could be delegated to any office not below the rank of a Collector. Now that the revisional power is to be exercised by director of Consolidation, pursuant to 1975 amendment, there should have been corresponding amendments in section 34 as well, as otherwise it would be quite anomalous that while the appellate powers are not to be exercised by deputy Director of Consolidation not below the rank of Additional collector, the revisional power could be exercised by an officer of the rank of deputy Collector in exercise of the delegated powers under Sec.34 (2 ). 10. The Director of Consolidation in his affidavit filed on 19.9.95 has conceded the point. 10. The Director of Consolidation in his affidavit filed on 19.9.95 has conceded the point. The relevant part of the affidavit may be extracted as follows: "that according to Sec.2 (4) of the act no doubt the Deputy Director should not be below the rank of Additional Collector, therefore, it does not stand to reason the person below the rank of Deputy Director should be vested power under Sec.35 of the Act. But on a plain reading of the Section 34 (2) of the Act, it appears that persons exercising the power should not be below the rank of Deputy Collector and therefore, the very relevant provision under the Act is defective and it requires amendment. It appears that the language of the provisions contained under Sec.34 (ii) is basically responsible for such recommendation but before the matter was taken up by this Hon ble Court on 14-9-95 the Goverment has also realised this basic mistake and accordingly the Deputy Secretary of the department of revenue sought a clarification from the Special Secretary as a result of which the opinion of learned Advocate general was sought and it has been now decided by the Government to annul the said notification dated 20-3-1995 and Officers not below the rank of Super Selection Grade in the A. D. M. cadre will be vested to exercise the power under Sec.35 of the Act. The government is also being moved for necessary amendment under Sec.34 (ii) of the act by which the words Officer not below the rank of Dy. Collector shall be deleted. " 11. During hearing of this case I was informed by Government Pleader no. II that necessary steps in regard to amendment as suggested in the affidavit of the Director has not been taken on account of pendency of this case. I would accordingly dispose of this point with a direction to the State Government to consider making suitable amendments in Sec.34 of the Act. 12. The next point for consideration is whether impugned order should be set aside merely on the ground of defect in the appointment/delegation of powers in favour of the officer who has passed the order. The point is not res integra and covered by the decision of the Apex Court in Goka Raju Ranga raju V/s. State of Andhra Pradesh, AIR 1981 SC 1473 . The point is not res integra and covered by the decision of the Apex Court in Goka Raju Ranga raju V/s. State of Andhra Pradesh, AIR 1981 SC 1473 . The appointment of an additional District and Sessions Judge had been held to be invalid. The point for consideration was as to the effect of the declaration regarding the invalidity of the appointment on the judgment pronounced by him prior to such declaration. The judgment in question was assailed as being void. The plea was rejected by the Apex Court on the basis of de facto doctrine. Their Lordships quoted with approval the law laid down by Justice Ashutosh Mukherjee in the case of Pulin Behari Das V/s. King-Emperor, (1972) 15 Cal L. J.517 to the effect, "the acts of the Officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit are generally as valid and binding, as if they were the acts of the officers de jure. " and observed : "a Judge, de facto, therefore, is one who is not mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgment, pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment or a de facto judge should be questioned directly in a proceeding to which he may be a party but it cannot be permitted to be questioned in a litigation between the two private litigants, a litigation which is of no concern or consequence to the Judge, except as a Judge. " In view of the clear enunciation of law on the point it is not necessary for me to dwell upon the aforesaid aspect of the matter further. " In view of the clear enunciation of law on the point it is not necessary for me to dwell upon the aforesaid aspect of the matter further. It appears from the second affidavit by the Director that Sri A. K. Sinha has disposed of as many as 1165 cases between 5-1-94 and 15-9-95. If it were to be held that on account of the defect in the conferment of power, the orders passed by him are bad, merely on that ground, it would result in lot of confusion and cause mischief. It would, in effect, tantamount to re-opening even such matters which stand concluded and have become final by lapse of time. I, therefore, find it difficult to set aside the impugned order on the ground of invalidity in the conferment of revisional power. 13. The officer, Shri A. K. Sinha is, however, restrained from deciding revision petitions in purported exercise of powers under Sec.35 of the Act. The interim order dated 19-9-95 passed in this case is made absolute. 14. There is another reason why 1 do not feel inclined to interfere with the order. The Supreme Court in the case of Fakruddin V/s. Principal, consolidation Training Institute, (1995) 4 scc 538) a case from Bihar has observed that "where the dispute relates to allotment of chaks in consolidation proceeding, and does not raise any question of title, no exception can be taken to the order of the High Court dismissing the writ-petition in limine. " The order of High Court was set aside on an entirely different ground but the observations aforesaid do provide sufficient guidelines as to exercise of powers by the High Court under Articles 226 and 227 of the Constituton in such matters. The instant case relates to allotment of chaks and does not involve any dispute regardihg title. No interference by the High Court, is, therefore, called for. 15 In the result, this application is dismissed but with the directions as mentioned in paragraphs-11 and 13 of this judgment. There will be no order as to cost. Petition Dismissed.