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2002 DIGILAW 55 (PAT)

Ramakant Jha v. State Of Bihar

2002-01-11

NAGENDRA RAI, R.S.GARG

body2002
Judgment 1. This appeal is barred by limitation. 2. Taking into consideration the averments made in the limitation petition, the delay in filing this appeal is condoned. 3. This appeal is directed against the order dated 6.2.2001 passed by the learned single Judge in C.W.J.C. No. 8878 of 1999, whereby he has allowed the writ petition filed by the writ petitioner-respondent and quashed the order of the Additional Collector, Vaishali passed under the provisions of Bengal Survey Act, 1875 on the sole ground that the order passed by the Collector under section 41 of the said Act was final and not subject to appeal and accordingly the order passed by the Additional Collector in favour of the appellant was without jurisdiction. 4. Learned counsel appearing for the appellant submitted that the order passed under section 41 of the Act is not final and is subject to appeal under section 59 of the Act and accordingly, the learned single Judge was not right in coming to the conclusion that the appeal filed against the order passed by the Collector under the Act was not maintainable. 5. Learned counsel appearing for the Respondents, on the other hand, submitted that the order under section 41 of the Act is not subject to appeal under the provisions of Bengal Survey Act. 6. To appreciate the controversy in this appeal, it is necessary to refer the relevant provisions of the said Act. Section 2 of the Act is an interpretation clause and "Collector has been defined. According to the said definition, "Collector" means every Collector of a district, and includes every officer either generally or specially vested with the powers of a Collector. 7. Section 41 of the Act contains the provisions with regard to determining boundary disputes by the Collector and it provides that the determination made by the Collector with regard to boundary disputes have the force of an order of any civil court declaring the parties to be in possession of the land in accordance with the boundary as determined by the Collector unless the same are reversed or modified by competent authority. In other words, finality is attached with the order of the Collector unless it is modified by the competent authority. 8. Sections 59 and 60 of the Act deal with the appeal filed against the orders passed by the authority under the Act. In other words, finality is attached with the order of the Collector unless it is modified by the competent authority. 8. Sections 59 and 60 of the Act deal with the appeal filed against the orders passed by the authority under the Act. Section 59 of the Act provides that an appeal within the time prescribed therein shall lie to the Collector or Superintendent of Survey against every order of a Deputy Collector or of an Assistant Superintendent with regard to the matters enumerated therein including the dispute regarding boundary. 9. Section 60 of the Act provides that an appeal will lie against the order of the Collector or Superintendent of Survey before the Commissioner of the Division. 10. A conjoint reading of the aforesaid provisions show that the power of the Collector can be delegated to the other authorities also and once the power is delegated in an authority other than the Collector, i.e. the Deputy Collector or the Assistant Superintendent of Survey, in that case, appeal will lie to the Collector of the District or the Superintendent of Survey as the case may be with regard to boundary disputes also and if the order has been passed by the Collector of the District or the Superintendent of Survey, then appeal will lie before the Commissioner. Section 41 of the Act clearly says that the order of the Collector is subject to reversal or modification by the competent authority. If the order has been passed by the Collector as defined under the Act, then appeal will lie before the authorities as mentioned in sections 59 and 60 of the Act and that authorities, who are competent authorities, may reverse or modify the order. 11. In our opinion, the order passed under section 41 of the Act is not final in the sense that it is not subject to appeal, on the other hand, appeal will lie to the authority as mentioned in sections 59 and 60 of the Act depending upon the authority which has passed the order. Thus, we are of the view that the learned single Judge was not right in holding that the order passed under section 41 of the Act was not subject to appeal. As stated above, the appeal will lie before the Collector of the District and not to the Additional Collector as has been done in the present case. Thus, we are of the view that the learned single Judge was not right in holding that the order passed under section 41 of the Act was not subject to appeal. As stated above, the appeal will lie before the Collector of the District and not to the Additional Collector as has been done in the present case. Accordingly, we affirm the order of the learned single Judge on the ground namely that the disposal of the appeal by the Additional Collector is not according to the provisions of section 59 of the Act. The appeal should have been disposed of by the Collector of the District. The appeal is remitted to the Collector of the District to dispose of the appeal under section 59 of the Act. 12. In the result, this appeal is disposed of with the aforesaid directions.