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2001 DIGILAW 655 (PAT)

Baij Nath Prasad v. State Of Bihar

2001-07-27

RADHA MOHAN PRASAD

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Judgment Radha Mohan Prasad, J. 1. In this writ petition, the dispute relates to recording of name in the register of municipal survey record with respect to khata no. 168, Khesra no. 396, area 27 decimals in Ward No. 8 of Nawada Municipality, Nawada. 2. It appears that the petitioners filed objection under Section 9 of the Bihar and Orissa Municipal Survey Act, 1920 which was registered as Objection Case No. 35 of 1986. Respondent no. 4 also appeared and filed papers in support of his claim. The said objection case No. 35 of 1986 was finally allowed in favour of the petitioners by the Revenue Officer on 22.6.1987. Respondent no. 4 filed Appeal No. 112 of 1987 which has been disposed of by the impugned order dated 9.5.1991, contained in Annexure-2 by the Assistant Superintendent of Survey. 3. It is contended by Mr. Jha, learned counsel appearing for the petitioners that the impugned order is wholly without jurisdiction in as much as under Rule 15 of the Bihar & Orissa Municipal Survey Rules the power for disposal of the appeal lies with the Superintendent of Survey whereas in the present case the appeal has been disposed of by the Assistant Superintendent of Survey (Respondent no. 3). It is submitted that in any view of the matter the impugned order is bad in law because the appeal has been allowed by Respondent no. 3 without even consideration of the documents placed before him and has simply set aside the order of the Revenue Officer without assigning any reason. It is submitted that the Revenue Officer rejected the claim of Respondent no. 4, who was appellant in the said appeal on the ground that Sada Hukumnama which was produced by him in support of his claim was of the year 1357 Fasli by Government R. R. Patwari, where as he himself stated that he was 37 years of age in July, 1987. Thus, on the face of his own statement, the Revenue Officer refused to accept the Sada Hukumnama produced by Respondent no. 4 in support of his claim. According to the learned counsel for the petitioner, the so-called documents produced before the appellate authority was not presented by Respondent no. 4 before the original authority and the petitioner, thus, was deprived of the opportunity of rebuttal. 4. Despite notice, none has appeared on behalf of Respondent no. 4. 4 in support of his claim. According to the learned counsel for the petitioner, the so-called documents produced before the appellate authority was not presented by Respondent no. 4 before the original authority and the petitioner, thus, was deprived of the opportunity of rebuttal. 4. Despite notice, none has appeared on behalf of Respondent no. 4. However, learned J. C. to A. A. G. I has submitted that even assuming that the appellate order has not been passed by the competent authority yet the original order also cannot stand as it appears to have been passed by the Revenue Officer, who is not the competent authority to dispose of the objection under Section 9 of the Bihar & Orissa Municipal Survey Act, 1920. As such according to him both the orders are not sustainable in law. 5. This Court finds substance in the submission of the learned counsel for the State. All objections filed under Section 9 of the Act are to be disposed of by such officer and in such manner, and subject to such appeal, if any, as may be prescribed. Rule 9 of the Bihar & Orissa Municipal Survey Rules provides that any objection which may be made to any entry in or to an omission from the record during the period named or within such further period as may be allowed by the Superintendent shall be received and decided by the Superintendent of Survey. However, under Rule 2 the Superintendent has been vested with the power to dispose of such objection himself or to transfer it for disposal to any other Assistant Superintendent. Thus, in my opinion, learned counsel for the State has rightly submitted that utmost the Assistant Superintendent of Survey had the authority to dispose of the objection and not the Revenue Officer, it is true that under sub- rule (2) of Rule 15 an appeal against the order of the Superintendent of Survey disposing of an objection lies to the Collector, or if the Collector is the Superintendent of Survey, to the Commissioner. Learned counsel for the petitioner has failed to show that original order was passed by the Assistant Superintendent of Survey, and thus, in the present case, the competent authority to hear the appeal was Superintendent of Survey and not the Assistant Superintendent of Survey. Learned counsel for the petitioner has failed to show that original order was passed by the Assistant Superintendent of Survey, and thus, in the present case, the competent authority to hear the appeal was Superintendent of Survey and not the Assistant Superintendent of Survey. However, as the original order itself is without jurisdiction and bad in law, in my opinion, both the orders cannot be allowed to sustain on merits. 6. Accordingly, both the orders, contained in Annexures-1 & 2 are quashed. Writ application is accordingly disposed of. However, this order shaii not come in the way of the parties from agitating their grievance afresh before the authority concerned in accordance with law.