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2000 DIGILAW 46 (PAT)

Mostt. Indrasani Kunwar v. State Of Bihar

2000-01-12

NARAYAN ROY

body2000
Judgment Narayan Roy, J. 1. Hard learned Counsel for the petitioner, J.C. to S.C. III for respondents 1 to 3 and learned Counsel for respondent No. 4. 2. By this writ application, the petitioner has prayed for quashing the order dated 9.3.1998 passed by the Joint Director, Consolidation, Bihar, Patna respondent No. 3 in revision case No. 280/96 as contained in Annexure-1. Learned Counsel for the petitioner submitted that after the village in question was confirmed a revision application straightway was filed by respondent No. 4 before the Director, Consolidation and the Director, Consolidation in exercise of his power under Sec. 35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act (hereinafter referred to as the Act) entertained the revision application which was not against an order nor the proceedings was under challenge mid held that the Bay-Beyana dated 21.8.90 executed by the Petitioner was void as no prior permission as required under Sec. 5 of the Act, was taken. 3. A question for consideration has arisen in this case as to whether the power as envisaged under Sec. 35 of the Act is exercisable by the Director-/Joint Director, Consolidation even when there is no order passed by the subordinate officers under the Act or when no proceeding at all was initiated under the provisions of the Act. Sec. 35 of the-Act reads as follows: The Director of Consolidation may be 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 of any order passed by such authority in the case of proceedings, any may after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit. 4. 4. It is manifest from the provision of Sec. 35 of the Act itself that 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 records 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 or proceeding and may after allowing the parties concerned, an opportunity of being heard, make such order in the case of proceedings as he thinks fit. 5. The wordings of Sec. 35 of the Act make it very clear that the power of revision as envisaged under Sec. 35 of the Act is exercisable only when an order is passed by any subordinate authority or a proceeding has been initiated by the authority under the Act. In absence of an order or a proceeding, the power as envisaged under Sec. 35 of the Act, in my opinion, is not exercisable even suo motu by the revisional authority under the Act. 6. In case of Ram Dular V/s. Deputy Director, Consolidation, Jaunpur and Ors. 1994 Supplementary Vol. 2 S.C.C. 198, the Apex Court has held that in considering the correctness, legality or propriety of the order or correctness of the proceeding or regularity thereof under Sec. 48 of the U.P. Consolidation of Holdings Act, 1953 which is para material with Sec. 35 of the Act, the Director cannot assume to himself the jurisdiction of the original authority as a fact finding authority by appreciating for himself those facts de novo. The Apex Court has further held that he has to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by them is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the root of the matter, had been committed in recording the order or finding. 7. In the instant case, it is not, in dispute that the power of revision was invoked by respondent No. 4 straightway in absence of an order or a proceeding under the Act. 8. 7. In the instant case, it is not, in dispute that the power of revision was invoked by respondent No. 4 straightway in absence of an order or a proceeding under the Act. 8. For the reasons aforementioned and in view of the legal proposition noticed above, therefore, it must be held that the order impugned passed by the respondent No. 3 in exercise of its power under Sec. 35 of the Act is wholly without jurisdiction and is not sustainable in law. 9. In the result, this application is allowed and the order impugned as contained in Annexure-1 is quashed but without costs.