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2006 DIGILAW 513 (PAT)

Surya Bansh Singh v. State Of Bihar

2006-06-23

RAMESH KUMAR DATTA

body2006
Judgment Ramesh Kumar Datta, J. 1. Heard the learned Counsel for the petitioners and learned Counsel for the respondent No. 6 and learned S.C. 12 for the State. 2. Petitioners assail the order dated 29.11.2000 in certified copy of which the date of the order (sic) has been wrongly mentioned as 29.11.2001 passed by the Joint Director, Consolidation, in Revision Case No. 364/94 and 365/94 whereby the revision applications filed by the respondent 2nd set which includes respondent No. 6 have been allowed. 3. Learned Counsel for the petitioners has assailed the order mainly on two grounds. He states that firstly the Joint Director, Consolidation had committed serious error by setting aside the order of the Consolidation Officer without at the same time setting aside the appellate order. 4. The second and more important objection of learned Counsel for the petitioners is that the said order is passed upon the factual error in holding that the Consolidation Officer has passed the orders without observing the provisions of sec. 10(7) of the Consolidation Act since he had not made local inspection of the suit land to ascertain actual possession over the suit land. In this regard learned Counsel points out Annexure-1 which is a memo of Inspection made by the Assistant Consolidation Officer in Case No. 523/78/194/81-82 out of which ultimately Consolidation Revision No. 364/94 arose. Learned Counsel also points out the notice regarding local inspection which was issued in Consolidation Case No. 40/79-91 out of which Consolidation Revision Case No. 365/94 ultimately arose. He further refers to the order dated 18.1.1991 passed in Cons. Case No. 40/79 in which the Consolidation Officer refers to the local inspection made by him in the presence of the parties and the Advisory Committee. 5. Learned Counsel appearing for respondent No. 6, however, takes objection that since two consolidation cases have been decided out of which two appeals and thereafter two revisions have been filed, therefore a single writ petition is not maintainable. His other objection is that sec. 10(7) and Rule 6(D)(11) are mandatory and under the said provisions the Assistant Consolidation Officer is not authorised to hold local inspection and the same has to be done by the Consolidation Officer himself. His other objection is that sec. 10(7) and Rule 6(D)(11) are mandatory and under the said provisions the Assistant Consolidation Officer is not authorised to hold local inspection and the same has to be done by the Consolidation Officer himself. Apart from holding local inspection the Consolidation Officer is also required to prepare Memo of Inspection and place it in the file in terms of Rule 6 which has not been done in the present case. Learned Counsel further points out that the revisional order sets aside the order passed in the Consolidation case only because the appellate authority did not pass the order on merit but merely refused to exercise his appellate power on the ground that the consolidation proceeding stood confirmed. 6. On a consideration of the aforesaid submissions of the parties I find that there is force in the submission of the learned Counsel for the petitioner. In the revisional order there is no such plea that memo of inspection has not been prepared by the Consolidation Officer. In fact the entire case of the respondent second set including respondent No. 6 was that no local inspection had been made over the land in question in order to ascertain the actual possession of the parties. In view of the evidence pointed out above it cannot be stated that the memo of inspection had not been prepared by the Consolidation Officer merely on the statement being made at this belated stage before the writ Court, since there is a reference to local inspection having been made by the Consolidation Officer in one case and in the other case also the respondents had participated in the local inspection which was made by the Assistant Consolidation Officer before them and they had signed the proceedings. 7. For the reasons aforesaid the order dated 29.11.2000 passed by the Joint Director, Consolidation in Consolidation Revision No. 364/94 and 365/94 are quashed. 8. This order, however, will not preclude the aggrieved party from taking such recourse under the general law as he is entitled to.