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2001 DIGILAW 791 (JHR)

Rajendra Prasad v. State Of Bihar

2001-12-04

M.KARPAGAVINAYAGAM

body2001
ORDER By the Court 1. This writ application was filed on 5.6.2000. This Court by order dated 26.6.2000 allowed four weeks time to the learned Standing Counsel to seek instruction and file counter affidavit. Again the matter was listed on 20.11.2001 and on that day, by way of last indulgence, ten days more time was allowed to the State but till date no counter affidavit has been filed. Hence this Court has no option but to dispose of this writ application on the basis of averments made therein. 2. This writ application is directed against the order dt. 11.4.2000, passed by the respondent No. 2, the Deputy Commissioner, Dhanbad in Misc. Review Appeal No. 4/1997 whereby he has decided to review the order passed by the Additional Collector, Dhanbad in BPLE Appeal No. 59/1996. 3. It appears that on the basis of report submitted by the Circle Officer a proceeding under Section 3 of the Bihar Land Encroachment Act, 1956 (In short the Act) was initiated against the petitioner alleging that he got 14 decimals of land of plot No. 806 under Khata No. 136 of Mouza Hirapur in the District of Dhanbad. In the said proceeding, on receipt of the show cause notice, the petitioner appeared before the Circle Officer and filed a show cause denying the allegation of encroachment of any part of the land. The L.R.D.C., after hearing both the parties, dropped the proceeding against the petitioner by order dated 10.9.1996 holding that the allegation of encroachment was not established. Aggrieved by the said order the respondent-State preferred an appeal before the Additional Collector. Dhanbad which was registered as BPLE Appeal No. 59/1996, The Additional Collector, after considering the entire evidence produced before him, affirmed the order passed by L.R.D.C. and dismissed the appeal in terms of order dt. 8.9.1997. Against the appellate order the respondent-State filed a Mic. Review Appeal before the Deputy Commissioner, Dhanbad which was registered as Misc. Review Appeal Case No. 4/1997. The petitioner appeared before the Deputy Commissioner and opposed the maintainability of the Review Application or appeal before him against the order passed by the Additional Collector as an appellate authority. The Deputy Commissioner, however passed the impugned order holding that he will review the order of the Additional Collector. 4. Mr. Review Appeal Case No. 4/1997. The petitioner appeared before the Deputy Commissioner and opposed the maintainability of the Review Application or appeal before him against the order passed by the Additional Collector as an appellate authority. The Deputy Commissioner, however passed the impugned order holding that he will review the order of the Additional Collector. 4. Mr. P.K. Prasad, learned counsel appearing for the petitioner, assailed the impugned order passed by the Deputy Commissioner as being illegal and wholly without Jurisdiction. Learned counsel submitted that the appellate power having been exercised by the Additional Collector in an appeal filed by the respondent- State, the Deputy Commissioner has no jurisdiction either to entertain a second appeal or to entertain the said appeal by way of review. I find force in the submission of the leaned counsel. 5. In order to appreciate the submission of the learned counsel, I may refer at a glance the relevant provisions of the Bihar Public Land Encroachment Act. Section 2 defines "Collector", which mean the Collector of the district and includes any officer empowered by the State Govt. to discharge all or any of the functions of the Collector under this Act. Section 3 of the said Act provides the mode of initiation of encroachment proceeding against any person found making encroachment of public land. Section 4 gives power to the person against whom notices are issued to defend the action initiated against him. Section 5 is the provision for giving full fledged hearing and Section 6 is the provision for passing final order by the Collector. Section 7 is the procedure for execution of the final order passed under Section 6 of the Act. Section 11 of the said Act provides for appeal, which reads as under:-- "11. Appeals.--(1) From every order passed under Sections 6. 7 or 8 an appeal shall lie : (i) if such an order is passed by any officer other than the Collector of the district, to the Collector of the district or to any officer specially empowered by the State Government, by notification in the official gazette; (ii) if such order is passed by the Collector or the district, to the commissioner of the Division. (2) An appeal under this section shall be preferred within 30 days of the passing of the order appealed against; Provided that an appeal may be admitted after the said period when the appellate authority is satisfied that the appellant had sufficient cause for not preferring the appeal within such period. 6. It has not been diputed by the counsel appearing for the State that the expression Collector includes Additional Collector and the Additional Collector has been empowered to exercise the power of a Collector. Admittedly against an original order passed by L.R.D.C. the respondent-State preferred an appeal before the Additional Collector. The only question, therefore, falls of consideration is as to whether a further appeal will lay before the Deputy Commissioner and/or whether the Deputy Commissioner will have the power to review the order passed by the Additional Collector. Section 13 of the Act gives power of review to the officer, who passed the order. 7. It is well-settled that appeal is the creature of statute. Right of appeal is not a matter of procedure but it is a matter of substantive right of a party. I am, therefore, of the view that when admittedly the Additional Collector exercised the power of appeal under the said Act then a provision for further appeal before the Deputy Commissioner does not at all arise. 8. As noticed above, Section 13 very clearly provides that the order passed under the said Act shall be reviewed only by an officer, who has passed the order. In that view of the matter the Deputy Commissioner has no power of review of an order passed by the Additional Collector. As a matter of fact either the respondent-State Authority ought to have challenge the order passed by the Deputy Commissioner before this Court or to file an application before the Additional Collector for review of the order, but in no case either the appeal or the review was maintainable before the Deputy Commissioner. 9. For the reason aforesaid, this writ application is allowed and the impugned order passed by the Deputy Commissioner is set aside. However, this order will not debar the State of Bihar from challenging the order passed by the Additional Collector in accordance with the provisions of the said Act or before the appropriate forum in accordance with law. 10. Writ application allowed.