Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 171 (PAT)

Laxmi Devi v. Joint Director Of Consolidation

2007-01-24

J.N.BHATT

body2007
Judgment J.N.Bhatt, J. 1. This petition under Article 226 of the Constitution of India is filed to quash the order dated 20.8.1987, recorded by the Principal, Consolidation Training Institute, Patna, in Revision Case No. 692 of 1984 placed, at annexure 5, by which he affirmed the order of the Deputy Director, Consolidation, passed on 13.2.1984, in Appeal Case No. 29 of 1983, copy whereof, is produced, at annexure 4, and the order dated 11.9.1983, recorded by the Consolidation Officer, Ekangar Sarai in objection Case No. 404 of 1983, copy whereof, is, also, placed in the petition, as well as, the order dated 15.11.1976, passed by the Assistant Consolidation Officer, in Case No. 462 of 1976, copy whereof is placed, at annexure 6. 2. Learned counsel appearing for the parties have been heard. They have taken the Court through the entire records in course of marathon submissions. Upon consideration of the submissions and the factual matrix, as well as, the relevant proposition of law, in the opinion of this Court, there is no substance in this petition. The jurisdiction of the High Court in a writ petition is not as that of an appellate court and it has to consider whether the procedure prescribed in law is followed or not and not the quality of the impugned order of the revenue authority only on the ground that different and better view could have been taken by the revenue authority. This proposition is very well established. 3. In order to appreciate the merits of the petition, let there be a projection of few material and relevant facts leading to the rise of this petition under Article 226 of the Constitution of India: (1) That the subject matter of the dispute is with regard to the title over 9 decimals of land of C.S. Plot No. 2347 (R.S. Plot No. 3789) appertaining to C.S. Khata No. 371 of village Panhar PS. Islampur in the District of Nalanda. (2) That the said plot is recorded in the C.S. Record of Rights in the name of one Sukan Barai and others showing house, as well as, sahan over the said plot and the entire area of Khata No. 371 is 3.48 acres of land. Islampur in the District of Nalanda. (2) That the said plot is recorded in the C.S. Record of Rights in the name of one Sukan Barai and others showing house, as well as, sahan over the said plot and the entire area of Khata No. 371 is 3.48 acres of land. (3) That Sukan Barai fell in need of money due to which he expressed his desire to sell the disputed land and other lands and on due negotiation he sold 2.39 acres of land including the disputed land to the father of the petitioner Gopi Sao through a registered sale deed dated 23.5.1942 on receiving the entire consideration money and delivered the possession of the land to the vendee. A copy of the sale deed is, also, produced. (4) That on execution of the sale deed the father of the petitioner had been paying rent to the then landlord and in lieu of payment of rent receipt was being granted to him. Subsequently, zamindari vested in the State of Bihar and on vesting of the same the then landlord submitted zamabandi return in the name of the father of the petitioner and, accordingly, Register II stood prepared in the name of the father of the petitioner. (5) After vesting of zamindari the father of the petitioner died and on a partition amongst the petitioners brother and sister the disputed land came to be allotted to the petitioner. (6) Subsequent to the said partition, Revisional Survey proceedings came to be initiated in the village and since the petitioner has been coming in possession of the said land, Revisional Survey authorities finding the possession of the petitioner prepared the revisional survey purcha in the name of the petitioner. (7) No other persons including respondent no. 4 had filed objections as alleged and as such the entry became final. (8) It appears that thereafter Consolidation Proceedings started in the village where the disputed property situated and register of land stood prepared in the name of the petitioner as alleged. It appears that no objection came to be made under Sec.10(2) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 by any person including respondent no. 4. (9) It appears that respondent no. It appears that no objection came to be made under Sec.10(2) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 by any person including respondent no. 4. (9) It appears that respondent no. 4 filed an objection before the Consolidation Officer without impleading the petitioner as a party to the said case which does not appear to be correct from the record or is very much disputable. 4. Let it be mentioned that the dispute is very old. There was a proceeding before the Assistant Consolidation Officer. The case of the petitioner was that the objections were filed beyond the statutory period which does not seem to be recognizable. It is, specifically, mentioned in annexure 6, the decision of the Assistant Consolidation Officer passed on 15.11.1976 that the first party, i.e., respondent no. 4 remained present and the petitioner did not remain present. 5. Upon consideration of the facts and circumstances, the Consolidation Officer decided to enter in the Record of Rights the name of respondent no. 4 which came to be questioned by the petitioner in appeal, as well as, in revision before the competent authorities. The decision of the appellate court in Appeal No. 29 of 1983 is placed, at annexure 4 in the petition which affirmed the first order and dismissed the appeal. The revision bearing no. 692 of 1984 came to be decided on 20.8.1987 confirming the order of the Assistant Consolidation Officer. 6. The contention of the petitioner that the proceedings before the Assistant Consolidation Officer came to be concluded ex parte is not correct. On facts it is found that the second party in that matter, that is, the petitioner herself remained absent. The case was decided and direction was given for entry of name of respondent no. 4 in the Record of Rights which, unsuccessfully, was challenged in appeal, as well as, in revision by the petitioner. 7. The second contention was that there was no republication. In view of this, there was a republication of register of lands in terms of Sec.10C of the Act. Sec.10 provides for publication of registers of lands and statement of principles and objections thereon and the procedure for entering in the record of rights in the revenue department. 8. 7. The second contention was that there was no republication. In view of this, there was a republication of register of lands in terms of Sec.10C of the Act. Sec.10 provides for publication of registers of lands and statement of principles and objections thereon and the procedure for entering in the record of rights in the revenue department. 8. Let is be mentioned that an entry in Survey Record of Rights carries all presumptive value and, therefore, if the party claiming a piece of land has to succeed, it is obligatory for him to prove his case. The petitioner has not been able to show from the record that her claim is justified. 9. Apart from that, the finding of facts came to be recorded, this Court will be at a loathe to disturb the concurrent findings of three authorities when there is no clear defect in the procedure or manifest error on the point of law. Therefore, the submission that flagrant miscarriage of justice has occurred cannot be accepted. Sec.10 of the aforesaid Act reads hereunder as: "Publication of registers of lands and statement of principles and objections thereon. (1) The registers prepared under sub-section (2) of Section 9 and the statement of principles prepared under section 9A shall be published in the manner prescribed and shall remain published for not less than 30 days. (2) Any person may, within 45 days of the date of the publication of the register under sub-section (1) file before the Assistant Consolidation Officer, objection in respect thereof, disputing the correctness and nature of entries in the records or in the statement of principles. (3) The Assistant Consolidation Officer shall, after hearing the persons interested and after such enquiries as may be necessary, decide the objection, settle the disputes or correct the mistake, as far as may be, by way of compromise between the parties appearing before him and pass orders on the basis of such compromise. (4) All cases which are not disposed of by the Assistant Consolidation Officer under sub-section (3), all cases relating to valuation of plots and all cases relating to violation of structures, tree, bamboo-clumps, well or other improvements for calculating the amount thereof, and its apportionment amongst co-owners, if there be more owners than one, shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer who shall dispose of the same in the manner prescribed. (5) Where objections have been filed against the statement of principles under sub-section (2) of Sec.10 the Assistant Consolidation Officer, after affording opportunity of being heard to the parties concerned and after taking into consideration the view of the village Advisory Committee, shall submit his report to the Consolidation Officer who shall dispose of the objections in the manner prescribed. (6) Any person aggrieved by an order of the Assistant Consolidation Officer or Consolidation Officer under sub-sections (3), (4) or (5) may, within 30 days of such order, file an appeal before the Assistant Director of Consolidation, whose decision, except as otherwise provided by or under this Act, shall be final. (7) The Consolidation Officer shall and the Assistant Director of Consolidation may, where necessary, before deciding an objection or an appeal, make local inspection of the unit, after giving due notice to the parties concerned and the Village Advisory Committee." 10. It would be, also, interesting to refer to the provision of Sec.10C which reads as follows: "Re-publication of register of lands, etc. in certain cases.-After expiry of the specified period of exemption as provided in Sec. 5-A, but before the publication of the draft scheme of consolidation under sub-section (1) of Sec.12, the register of lands prepared under sub-section (2) of Section 9 and the statement of principles prepared under section 9-A and published under sub-section (1) of Sec.10 and corrected under sub-sections (3), (4), (5) and (6) of Sec.10 pertaining to the units concerned shall be re-published in the manner prescribed and any person may within twenty days of such republication file before the Assistant Consolidation Officer objection in respect thereof disputing the correctness and nature of entries in the register of lands or in the statement of principles, if cause of action for such objections has arisen after publication of the register of lands and the statement of principles under sub-section (1) of Sec.10." 11. The Act aims at on providing for the Consolidation of Holdings and Prevention of Fragmentation in the State of Bihar. 12. After having taken into consideration all the relevant provisions of the Act, as well as, the factual matrix emerging from the old entire record, this Court is satisfied that there is no fit and appropriate case for exercise of writ jurisdiction as there is no such claim established. 13. Consequently, this petition shall stand dismissed. 14. 12. After having taken into consideration all the relevant provisions of the Act, as well as, the factual matrix emerging from the old entire record, this Court is satisfied that there is no fit and appropriate case for exercise of writ jurisdiction as there is no such claim established. 13. Consequently, this petition shall stand dismissed. 14. At this stage, learned counsel for the petitioner states that it may be mentioned that the title to the property in issue can be resolved in a civil court and, therefore, it may be observed that it will be open for the petitioner to move a civil court. If there is a right under the law, this Court cannot take away and if there is no right, this Court cannot give. It is for the petitioner to pursue legal, permissible redressal, if any, under the law.