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2007 DIGILAW 1775 (PAT)

Binay Kr. Choubey v. State

2007-11-14

AJAY KUMAR TRIPATHI

body2007
Judgment Ajay Kr.Tripathi, J. 1. Heard counsel for the petitioner and learned counsel for the State. There is no representation on behalf of respondent no. 5 though name of the counsel Mr. Upendra Prasad appears in the list. 2. Petitioner is seeking quashing of the order dated 31.1.1989/1.2.1989 passed by respondent no. 2 in Consolidation Revision Case No. 2752 of 1987. He also wants quashing of the order dated 17.9.1987 passed by respondent no. 3 in Appeal Case No. 62/215 of 1985-86. The two impugned orders are Annexures-9 and 10 to the writ application. 3. Learned counsel for the petitioner States that the present dispute relates to a plot of land measuring .11 acres and situate in Mouza Belhar, Thana No. 7/1 New Khata No. 1186, new Khesra No. 1326. This corresponds to old Khata No. 151, Old Khesra No. 676. According to the petitioner the land in question originally was recorded in the revenue records in the name of one Ram Narayan Bhagat. By virtue of two registered sale deeds dated 19.1.1975 and 7.2.1975 bearing Kebala Nos. 1628 and 2552 respectively purchased 11.5 decimals of land from the said Ram Narayan Bhagat. He was recorded tenant of the land in question and the requisite jamabandi was recorded in his name for a long period of time. 4. First cousin of respondent no. 5 to the present writ application, namely, Anant Prasad Singh also purchased 1.17 acres of land from the said Ram Narayan Bhagat from the same Khesra and the son of the said Anant Prasad Singh is in possession of his part and parcel of the land. It is stated that at the instigation of certain persons and by design a dispute was sought to be raised upon the piece of land of petitioner, which was purchased by him and his name was duly mutated in the revenue records many years ago. There was no dispute earlier. Case of the petitioner is that the Mukhiya of Gram Panchayat in question with an oblique motive started raising objections to the construction of a house on the land in question. He disputed the land to be a gairmazarua aam and a public land as such. 5. A proceeding was initiated under Bihar Public Land Encroachment Act, 1956 before the competent authority. The matter finally traveled before the Court of Additional Collector, Bhagalpur in appeal. He disputed the land to be a gairmazarua aam and a public land as such. 5. A proceeding was initiated under Bihar Public Land Encroachment Act, 1956 before the competent authority. The matter finally traveled before the Court of Additional Collector, Bhagalpur in appeal. This is Appeal Case No. 42 of 1985-86. After a detailed consideration of the issues raised in the memo of appeal and after hearing the parties an order dated 27.2.1986 came to be passed in favour of the appellant i.e. the petitioners. This order is contained in Annexure-1 to the writ application. The order contained in Annexure-1 became final because no further proceeding was taken up by any party against this order. It is important to note that the order in question settles the dispute with regard to the nature of the land. The Additional Collector, Bhagalpur categorically records based on the evidence on record as well as the personal inspection which was carried out in presence of the parties that the land in question is a raiyati land on which house of the petitioner is constructed. It is not a public land and it does not obstruct any public passage or Nala as alleged by the vested party in question. To that extent, therefore, one aspect of the dispute came to rest. 6. The petitioner moved the consolidation authority under Sec. 10(3) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter to be referred to as he Consolidation Act). This step was taken by the petitioner in light of the fact that somewhere along in the records of the consolidation authorities this land was shown as gairmazarua aam. Petitioner produced the requisite evidence before Chakbandi Officer with regard to the purchase ot the said land from the ex-landlord, namely. Ram Narayan Bhagat. Vide order dated 7.2.1978 contained in Annexure-6 the objection and the permission for change in the records sought against the petitioner was duly granted by the Consolidation Officer nothing happened thereafter for a long period of time. 7. Learned counsel for the petitioner submits that under Sec. 12A(2) of the Act, if anybody had any objection he could have moved the appellate authority within 30 days of the order in question but no steps was taken by any person in this direction. 7. Learned counsel for the petitioner submits that under Sec. 12A(2) of the Act, if anybody had any objection he could have moved the appellate authority within 30 days of the order in question but no steps was taken by any person in this direction. However, the petitioner received a notice in Appeal Case No. 62/215 of 1985-86 from the Court of Assistant Director of Consolidation, Bhagalpur. It seems the Mukhiya who was instrumental in creating of the dispute in this regard after a long passage of time i.e. after seven years decided to file an appeal against the order of Consolidation Officer, which was passed on 7.2.1978. The appeal was entertained and it was allowed against the petitioner. The revision application filed by the petitioner against the said order was also rejected and that is how the present writ application came to be filed. 8. Learned counsel for the petitioner has a few basic submissions to make. He states that a perusal of Annexure-9 would show that at any point of time the appellate authority had condoned the delay in filing of the said appeal of any condonation was filed. In fact there is no discussion whatsoever on the question of such delayed filing of the appeal in absence of condonation of delay for almost 7 to 8 years. There was no occasion for the appellate authority to entertain the appeal. Not only this he submits that the appellate authority had acted in a totally arbitrary and illegal manner in the sense that he brushed aside all the evidenced which was available on the record to show that the land in question was duly purchased by a registered Kebala and any dispute with regard to its nature had already been settled by the Court of competent jurisdiction in this regard vide Annexure-1 to the writ application. By ignoring all these aspects the appellate authority giving peculiar reasons at his own level decided the appeal against the petitioner. In other words, he does not give any credence to a legal declaration which had been made by a competent authority exercising powers under another Statute i.e. Bihar Public Land Encroachment Act. Learned counsel for the petitioner also poses another basic question whether the consolidation authorities especially the appellate authority had any power under the Act by which it will have an overriding effect over the Bihar Public Land Encroachment Act. Learned counsel for the petitioner also poses another basic question whether the consolidation authorities especially the appellate authority had any power under the Act by which it will have an overriding effect over the Bihar Public Land Encroachment Act. Another submission was that since the land was a homestead land on which the house of the petitioner was in existence, therefore. to that extent the consolidation authorities had no powers to exercise on the dispute. The contentions prima facie seem to be correct. 9. There is no counter affidavit on behalf of respondent no. 5. The statements and assertions which have been made in the writ application has not been denied by the respondent no. 5 in any manner as already taken note of above. There is no representation also despite the fact that a counsel had already appeared on behalf of respondent no. 5 on many occasions earlier. 10. Learned counsel for the State does not have much to state except the fact that the order of the appellate authority as well as the revisional authority will have to be tested in the light of the relevant provisions under the Act and within the parameters of the powers which is vested with the authorities under the Act. 11. I have perused the order of the appellate authority contained in Annexure- 9. At no point of time there is any discussion as to under what circumstances the provision contained in Sec. 12A(2) which has fixed 30 days for filing an appeal was given a go-bye. There is no explanation also on behalf of respondents who were the appellants as to why they chose to file an appeal at such a belated stage of 7 to 8 years. In addition to that this Court finds it strange that the appellate authority exercising powers under the Consolidation Act has brushed aside the findings, which had been recorded by the competent authority and whose order Annexure-1 was produced before him. In fact the Court does find that the appellate authority had given its own reasons and logic to come to a different conclusion. This Court is not convinced by the reasoning which has been recorded in the appeal case and to that extent learned counsel for the petitioner is correct in assailing the same. In fact the Court does find that the appellate authority had given its own reasons and logic to come to a different conclusion. This Court is not convinced by the reasoning which has been recorded in the appeal case and to that extent learned counsel for the petitioner is correct in assailing the same. Coming to the revisional order this Court finds that the revisional order is basically an endorsement of the appellate order. The reasoning provided in the appellate order is the reasoning adopted by the revisional authority. If the reasoning which has been assigned by the appellate authority has been found to be not in accordance with law and not in consonance with the facts then this Court is constrained to observe that similar logic assigned in the revisional order will also make it an order suspect in the eye of law. 12. For the reasons indicated above, therefore, the writ application succeeds. The impugned orders contained in Annexures-9 and 10 are hereby set aside. The writ application is allowed. However, there will be no order as to costs.