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2007 DIGILAW 214 (PAT)

Dwarik Rai v. Joint Director Of Consolidation

2007-01-31

J.N.BHATT

body2007
Judgment J.N.Bhatt, J. 1. By this writ petition, the petitioners have questioned the legality and validity of the order passed by the respondent Joint Director of Consolidation, Patna, in case No. 1576/86 dated 4.4.1988/12.5.1988, whereby, in revision, two earlier concurrent findings of fact recorded by the Consolidation Officer, dated 14.10.1985 and that by Deputy Director, Consolidation, dated 22.3.1986 in Appeal Case No. 948 of 1985-86 came to be reversed. 2. The land in dispute relates to P.S.P. No. 1467 measuring an area of 17 decimals arising out of old khata No. 24 plot No. 220 which was recorded in the name of the grandfather of the petitioners. As per the case of the petitioners, at present, both the parties, i.e. the petitioners and respondent No. 4 are holding half each of the disputed land. The case of the petitioners has been that they are entitled to 2/3rd share as per the law, relying on the genealogy, which is articulated in paragraph 4 of the petition. The same is required to be quoted for profit hereunder: 66.htm The Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act XXII of 1956), (For short "the Act"), which received the assent of the President on 6th February, 1956, is designed to provide for the consolidation of holdings and prevention of fragmentation. The object is quite wholesome and healthy. This Act has been enacted with a view to encourage amalgamation of agricultural lands to save interest of the agricultrists. In Sec.10 of the Act provisions have been made for publication of registers of lands and statement of principles and objections thereon. Sec.10 of the Act is attracted for consideration of the merits of the matter on hand. Therefore, it is quoted, profitably, hereunder: 10. 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 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. (2) Any person may, within 45 days of the date of 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 valuation 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-section (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. 3. It could very well be seen that the register prepared under Sub-section (2) of Section 9 of the Act and the statement of principles prepared under Section 9A are required to be published in the manner prescribed and shall remain published for not less than 30 days. 3. It could very well be seen that the register prepared under Sub-section (2) of Section 9 of the Act and the statement of principles prepared under Section 9A are required to be published in the manner prescribed and shall remain published for not less than 30 days. It could further be noticed that if a person wants to raise objection, he is entitled to raise such objection within 45 days of the date of publication, before the Assistant Consolidation Officer. Under Sub-section (3) of Sec.10 of the Act, the Assistant Consolidation Officer is obliged to consider the objection after holding an inquiry and decide the objection to settle the dispute 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, whereas Sub-section (4) of Sec.10 of the Act provides that 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 valuation 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. 4. Sub-section (5) of Sec.10 provides how to deal with the objections and decide. Sub-section (6) of Sec.10 of the Act empowers the aggrieved party to file an appeal against the order of the Assistant Consolidation Officer to Assistant Director of Consolidation whose decision except as otherwise provided by or under Act, shall be final. Sub-section (7) of Sec.10 of the Act prescribes procedures for holding of proceedings. Sub-section (6) of Sec.10 of the Act provides a right to appeal, whereas Sec.35 of the Act provides a revision and reference. 5. The petitioners application under Sub-section (2) of Sec.10 of the Act came to be granted. He remained a successful party before the Assistant Consolidation Officer. Being aggrieved by the same, respondent No. 4 availed the benefit of appeal under Sub-section (6) of Sec.10 of the Act unsuccessfully. 6. In other words, he lost the appeal and the order of the Assistant Consolidation Officer came to be confirmed and affirmed in the appellate forum. He remained a successful party before the Assistant Consolidation Officer. Being aggrieved by the same, respondent No. 4 availed the benefit of appeal under Sub-section (6) of Sec.10 of the Act unsuccessfully. 6. In other words, he lost the appeal and the order of the Assistant Consolidation Officer came to be confirmed and affirmed in the appellate forum. Therefore, being aggrieved by the said decision of the appellate authority, the original respondent No. 4 questioned its legality and validity by filing a revision contemplated under Sec.35 of the Act. After having heard the learned Counsels far the parties and considering the factual matrix and the provisions of the Act and the relevant case laws, it appears that revisional authority i.e. the Joint Director, Consolidation has not taken into consideration all the pleas which were threadbare considered and examined by the first two revenue authorities. 7. It be mentioned that the revisional power, ordinarily, could not be equated with the appellate power. This the settled proposition of law. 8. Upon consideration of the facts and circumstances, this Court finds that there is non-application of mind to the vital issue by the revisional Court. Therefore it has perpetrated the illegality. It is in these context, this Court is inclined to remit the matter to the revisional revenue authority for fresh consideration after taking into consideration all the pleas and averments taken by the party in the earlier two revenue proceedings and decide afresh in accordance with law. Therefore, the matter is remanded to the revisional authority for fresh consideration in accordance with law. Since the matter is very old, it is directed that the matter be disposed of within five months from the Sate of receipt of the writ of this Court. 9. With the above observation, this writ application shall stand, partly, allowed. No costs. Rule is made absolute.