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1998 DIGILAW 21 (PAT)

Munaka Singh v. State of Bihar

1998-01-08

S.N.JHA

body1998
JUDGMENT S.N. JHA J. 1. This writ petition arises out of a proceeding relating to preparation of register of land under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (in short, the Act). The petitioner is aggrieved by the order of the Joint Director of Consolidation in Revision Case No. 1705 of 1983 copy whereof has been marked annexure 9 to the writ petition. Earlier the objection filed by the respondents under section 10(2) of the Act was rejected by the Assistant Consolidation Officer and appeal therefrom was dismissed by the Assistant Director of Consolidation. True copies of the said two orders have been marked annexure 7 and 8 to the writ petition. The Joint Director has set aside the appellate order and remanded the case to the Assistant Director of Consolidation for fresh decision. 2. In view of the order that I propose to pass it is not necessary to set out the facts of the case in detail except to mention that while the contesting respondents claim the disputed land by inheritence as being the descendants of the recorded tenant, the petitioner claims on the basis of the settlement. According to him, the land in question viz. 8 kathas 19 dhurs of plot no. 528 was sold to Sunder Paswan by Mahipat Singh the grandson of recorded tenant Durga Rai on 9.8.1911. The land was later auction sold in execution of rent decree against Jagpat Paswan, brother of Sunder Paswan, and purchased by ex-landlord namely Birendra Prasad Shukla. Later, on 1.1.1941 he settled the land with the petitioner. The petitioner has annexed photo copies of the rent receipts granted by the landlord as annexure 2 and 3 series. According to him at the time of vesting of the estates the ex-landlord submitted returns with respect to the land in his favour on the basis of which Jamabandi was created in his name and he paid rent to the State. The petitioner has filed photo copies of the Government rent receipts as annexure 4 series. 3. According to him at the time of vesting of the estates the ex-landlord submitted returns with respect to the land in his favour on the basis of which Jamabandi was created in his name and he paid rent to the State. The petitioner has filed photo copies of the Government rent receipts as annexure 4 series. 3. It is submitted by the counsel for the petitioner that the revisional authority did not consider the claim of the petitioner in the light of the documentary evidence on record at all and merely on the ground that the Assistant Consolidation Officer had no jurisdiction to decide the case on contest and the case has been decided without local inspection for which the Assistant Director had passed an order earlier, he set aside the orders of the authorities below and remanded the case for fresh decision. 4. Counsel also submitted that as a matter of fact, the objection preferred by the respondent was barred by the provisions of section 10A of the Act. In this connection, he stated that the draft publication of register of land was made on 26.4.1976. The objection under section 10(2) however was filed in the year 1982 much beyond the stipulated period of 45 days under section 10(2) of the Act. He relied on a decision of this Court in Mohd. Muslim vs. State of Bihar, 1997 (2) BLJ 162 . 5. I will deal with the second point first. The decision in Mohd. Muslim vs. State of Bihar is clearly not applicable. Therein, the concerned respondents had filed objection under section 10(2) of the Act: which was rejected on 2.7.1976. They did not prefer any appeal as provided under section 10(6). Instead, after a long gap, they filed fresh objection under section 10(2). On these facts this Court accepted the contention advanced on behalf of the petitioners that the claim was barred by the principles of res-judicata. 6. They did not prefer any appeal as provided under section 10(6). Instead, after a long gap, they filed fresh objection under section 10(2). On these facts this Court accepted the contention advanced on behalf of the petitioners that the claim was barred by the principles of res-judicata. 6. Section 10A of the Act runs as follows:– "No question in respect of any entry made in the map or registers prepared under section 9 or the statement of principles prepared under section 9A relating to the consolidation area, which might or ought to have been raised under section 10 but has not been raised, shall not be raised or heard at any subsequent stage of the Consolidation proceeding." (Emphasis added) It would appear that the key words of the section are "subsequent stage of the Consolidation Proceeding". As is evident from the scheme of the Act, broadly speaking, there are two stages of consolidation proceeding. At the first stage, registers of land and map are prepared and published, and objections are invited. After objections are disposed of and registers are corrected and updated, the second stage is reached. At that stage the actual consolidation of lands is made on the basis of records. What section 10-A bars is raising of objection at the second stage that is to say, where objection ought to have been raised under section 10 but has not been raised, it can not be permitted to be raised at the stage of the actual consolidation of plots when the stage of consolidation proceeding has changed. Because that would unnecessarily delay the finalisation of the entire scheme and make things topsy-turvy. 7. I must hasten to clarify that I should not be understood to mean that until the second stage of consolidation proceeding is reached, the raiyats have an unfettered right to file objection notwithstanding the provisions of section 10(2) which provides for a period of 45 days for filing objection. According to me, the period of 45 days is like period of limitation. But it does not mean that on the 46th or 47th day, the objection becomes time barred in the sense that it can not be entertained at all. In my opinion, where a case is made out and cause is shown for not filing objection within the period of 45 days, it is open to the Consolidation Officer to entertain the same. In my opinion, where a case is made out and cause is shown for not filing objection within the period of 45 days, it is open to the Consolidation Officer to entertain the same. There may be bona-fide and genuine cases of default and it would be unjust and improper to refuse to entertain the objection merely on the ground of expiry of the period. What shall be the reasonable period, after expiry of the statutory period, will depend on the facts of the particular case. However, after change of the stage of Consolidation proceeding, the bar of section 10A comes into play. At this stage of Consolidation proceeding, it is not open to the person to raise such objection which could and ought to have been raised, against entries in the register of land or the map or the statement of principles. In other words, provisions of section 10(2) have to be interpreted as laying down period of limitation which can be condoned in proper cases. The provisions of section 10A, on the other hand, have to be interpreted as creating an absolute bar. When the stage of consolidation has changed, the Consolidation Officer has no jurisdiction to entertain objection which could and ought to have been raised but not raised at the earlier stage. 8. In the present case, as indicated at the outset, the respondents filed objection under section 10(2). In other words, stage of the consolidation proceeding had not changed. For the reasons stated above, the objection, although filed beyond the period of 45 days, was not barred by the provisions of section 10A which have no application in the present case. 9. Before I close this topic, I may point out that while considering the provisions of section 10A in the context of section 35 of the Act, this Courts has held in Shyam Bihari Upadhyay vs. The State of Bihar, 1985 PLJR 43 , that section 10A does not militate against power of the revisional authority to call for and examine record of any case for the purpose of satisfying himself as to the irregularity and propriety of any order passed by any subordinate authority. Where the person has unsuccessfully filed objection on previous occasion, he can not be allowed to reiterate the objection at subsequent stage before the revisional authority under section 35, for, if such power is conceded, it may amount to conferring upon the authority the power to re-open the dispute even in cases where the dispute has become final between the parties. However, where the party did not file any objection It earlier stage, the revisional authority nay exercise its power under section 35 if sufficient grounds are made out for such exercise of power. 10. As regards the first point, I am inclined to think that the Joint Director ought to have considered the case of the parties on merit. It may be that the Assistant Director of Consolidation was not competent to decide the case as he is authorised to dispose of objection only on compromise, that is, in non-contentious cases. But the Deputy Director had gone into the merit of the case and decided the same. The petitioner claims on the basis of settlement and relies on rent receipts granted by the ex-landlord as well as the State of Bihar. The respondents, on the other hand, claim by inheritence. The Joint Director could have decided the claim in respect of the land on the basis of document already on record. The order of remand, in these premises, does not appear to be a correct one. 11. I would accordingly quash the impugned order dated 27.2.1985 (Annexure 9) and remit back the case to the Director/Joint Director of Consolidation for decision on merit in accordance with law. The writ petition accordingly stands allowed but without any order as to cost.