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2007 DIGILAW 365 (PAT)

Bhrigu Nath Tiwary v. State Of Bihar

2007-02-19

J.N.BHATT

body2007
Judgment J.N.Bhatt, J. 1. By this writ petition under Articles 226 and 227 of the Constitution of India, the petitioners have questioned the legality and validity of the order dated 2.6.1987 recorded by respondent No. 2, Joint Director, Consolidation (M), Bihar, Patna, in Revision Case No. 382 of 1985 confirming the orders dated 28.1.1985 in Consolidation Appeal No. 83 of 1983-84, and 13.1.1984 in Case No. 31 of 1983-84, recorded by respondent No. 3, Deputy Director of Consolidation, Bhojpur, Ara and respondent No. 4, Consolidation Officer, Bhojpur, respectively, copies whereof are placed on record, which are examined by the Court. 2. Learned Counsels appearing for the parties have offered their submissions during course of final hearing. This Court has also, threadbare considered factual aspect of the material facts, as well as, the relevant proposition of law. It has been, vehemently, urged by the learnedC ounsel for the petitioners that the impugned order of the three revenue authorities are not sustainable as they are bad in law and without considering, seriously, the provisions of Sec.10-A of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act XXII of 1956) (For short the "Act of 1956"), contending that the original revisional authority, Assistant Consolidation Officer, has passed an ex parte order without application of mind which contention is countenanced by the learned Counsel for the respondents. 3. With a view to appreciate the merits of the case, let there be projection of material facts at this juncture. The petitioners case has been that he is occupancy raiyat of village Bairi, Thana No. 273 Police Station Itarhi, District Bhojpur. The dispute in question relates to revisional survey Khata No. 76 R.S.P. No. 983, having an area of 1.28 decimals, appertaining to village Bairi, Thana No. 273. The revisional survey Khata No. 76 plot No. 983 area 1.28 is recorded in the name of late Bujhawan Tiwary and Gopal Tiwary, both sons of late Ram Lakhan Tiwary, the father of the petitioners. The disputed land is the ancestral land of the petitioners and is under their share and possession. 4. Learned Counsel for the petitioners has pressed into service the provisions of Sec.10-A of the Act of 1956, as well as, passing of the order by the first revenue authority, respondent No. 4 without application of mind and ex parte. 5. The disputed land is the ancestral land of the petitioners and is under their share and possession. 4. Learned Counsel for the petitioners has pressed into service the provisions of Sec.10-A of the Act of 1956, as well as, passing of the order by the first revenue authority, respondent No. 4 without application of mind and ex parte. 5. It would be appropriate at this juncture to examine and evaluate the statutory design and scheme of the Act of 1956. It is an Act to provide for the consolidation of holdings and prevention of fragmentation as a part of agrarian reforms in the State of Bihar. It is amply clear from the preamble of the Act that the Act of 1956 is devised for consolidation of holdings, as well as, prevention of fragmentation in the State of Bihar, which is injurious, and leading to consolidation of properties, as well as, prevention of fragmentation in respect of the agricultural land as a part of agrarian reforms in the State of Bihar. 6. The Act of 1956 is divided into four chapters. In Chapter II, elaborate provisions have been made relating to consolidation of holdings. In Chapter III, provisions are incorporated as to how to treat the fragmentation and miscellaneous provisions are provided in the last Chapter. The Bihar Consolidation of Holdings Rules, 1958 have been framed under the Act of 1956. The entire scheme, while read as a whole, undoubtedly, provides as to how to effect the underlying design of the Act. 7. In the case on hand, it would be material to refer to Section 8 of the Act of 1956 which provides for preparation of up-to-date record of rights before consolidation whereas Section 9 provides for preparation of register of lands. Section 9A provides for preparation of statement of principles and Sec.10 of the Act of 1956 provides for publication of registers of lands and statement of principles and objections thereon. It provides that register 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. It provides that register 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. Sub-section (2) of Sec.10 provides that any person aggrieved by the publication of register of land and statement of principles prepared in terms of Section 9 and 9A of the Act of 1956, is empowered to file an objection before the Assistant Consolidation Officer disputing the correctness and the nature of entries made in the records of rights or in statement of principles within the period of 45 days. A person aggrieved by the order of the Assistant Consolidation Officer is entitled to appeal under Sub-section (6) of Sec.10 of the Act of 1956 within 30 days of the impugned order before the Assistant Director of Consolidation whose decision, except as otherwise, provided by or under the Act of 1956 shall be final. Sub-section (7) of Sec.10 of the Act of 1956 provides further that the Consolidation Officer is obliged to follow certain procedure and inspect the disputed land. 8. The legal missile which is sought to be used on behalf of the petitioner is provided under Sub-section 10-A of the Act of 1956 which provides a bar to objection. It has been statutorily prescribed and provided that no question in respect of any entry made in the map or registers prepared under Section 9 or the statement of principles prepared under Section 9A relating to the Consolidation area, which might or ought to have been raised under Sec.10 but has not been raised, shall be raised or heard at any subsequent stage, of the Consolidation proceeding. 9. Relying on this provision of Sec.10-A, it has been contended that the entry in the name of the father and forefather of the petitioners in the records of rights of consolidation came to be made in the name of the petitioners on the 30th February, 1973. No objection has been raised against the entry or the publication of the record by consolidation in terms of the provisions of Sub-section (2) of Sec.10 of the Act of 1956. No objection has been raised against the entry or the publication of the record by consolidation in terms of the provisions of Sub-section (2) of Sec.10 of the Act of 1956. It would be interesting to note at this juncture that for the first time, objection came to be raised by filing a case being Objection Case No. 3, of 1983-84, almost after 10 years of the period of entry in the name of the petitioners. 10. The Assistant Consolidation Officer ought to have rejected the objection, raised almost after ten years in the light of the provisions incorporated in Sec.10-A of the Act of 1956. There was no sufficient opportunity of hearing to the petitioners also. There is no reason or ground on which the provisions contained in Sec.10-A of the Act of 1956 are not applicable in the impugned order by the Assistant Consolidation Officer. Unfortunately, the order recorded by the first revenue authority under the Act of 1956 is found to be bad in law and illegal as it runs diametrically opposite to the object of Sec.10-A of the Act of 1956. It is very clear from the provisions discussed above that in the case on hand when entry came to be recorded and published on 30th March, 1973, objection, which may or ought to have been raised in terms of the provisions of Sub-section (2) of Sec.10, of the Act of 1956, ought to have been raised or could have been raised within the stipulated period of 45 days from the 30th March, 1973. That not having been clone, the impugned order of the Assistant Consolidation Officer is bad in law apart from being contrary to the provisions, of audi alteram partem. The appellate authority confirmed the order of the Assistant Consolidation Officer in appeal which, later on, came to be confirmed in revision under Sec.35 of the Act of 1956. 11. Ordinarily, when three decisions of revenue or other authorities are consistent on question of fact and when no law point is involved, the writ court under Article 226 of the Constitution of India will be at loath to intervene with the orders. Though here authorities concurrently decided the matter in favour of respondent Nos. 11. Ordinarily, when three decisions of revenue or other authorities are consistent on question of fact and when no law point is involved, the writ court under Article 226 of the Constitution of India will be at loath to intervene with the orders. Though here authorities concurrently decided the matter in favour of respondent Nos. 5 and 6, there is a serious question of law which mandates a bar to further proceedings in respect of objections against the revenue record or publication thereof, as observe herein before. The concurrent orders are passed on fact without giving any cogent and clear reason as to why the provisions of Sec.10-A of the Act of 1956 were not complied with. There is grave miscarriage of justice for want of full application of mind to the provisions of Sec.10A. The impugned orders of the three revenue authorities under the Act of 1956 are thus bad in law and illegal. Therefore, this Court is left with no alternative but to interfere with the same, by quashing them in exercise of writ jurisdiction under Article 226 of the Constitution of India. 12. Let it be highlighted that a Division Bench of this Court in the Case of Shyam Bihari Upadhyay and Ors. V/s. The State of Bihar and Ors. - has taken similar view. It has been held that if objection in respect of entries under Sections 9 and 9A of the Act of 1956 is not filed in terms of the provisions of Sec.10(2) within the prescribed time limit, subsequently filing of objection under Sec.12(2) of the Act of 1956 is of no avail and, thus, such objection cannot be allowed in view of the bar imposed by Sec.10A of the Act of 1956. The view taken by this Court is very much reinforced by aforesaid decision of this Court. 13. Let it be mentioned that in Gafoora and Anr. etc. etc. V/s. Deputy Director of Consolidation, Meerut and Ors. The view taken by this Court is very much reinforced by aforesaid decision of this Court. 13. Let it be mentioned that in Gafoora and Anr. etc. etc. V/s. Deputy Director of Consolidation, Meerut and Ors. - , while examining similar provision incorporated, the Supreme Court in the case of U.P. Consolidation of Holdings Act, 1953 (5 of 1954), while interpreting the provisions of Sections 9, 11-A, 12 and 48 of that Act held in the light of the facts and the law that if objection is not preferred within the prescribed time limit, as required under the law, and delay in preferring objection is not explained, rejection is the only fate such application should meet. It also supports the view taken by this Court. 14. In the net result, the impugned orders dated 2.6.1987 passed in revision Case No. 382 of 1985, confirming the orders dated 28.1.1985 and 13.1.1984 passed by respondent No. 3, the Deputy Director of Consolidation, Bhojpur, in Consolidation Appeal No. 83 of 1983-84 and by respondent. No. 4, the Consolidation Officer, Itarhi, Bhojpur, in Case No. 31 of 1983-84 shall stand quashed and set aside while allowing this writ petition. Rule is made absolute. No costs.