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2007 DIGILAW 525 (PAT)

Markandey Singh & Ors. v. State Of Bihar

2007-03-14

J.N.BHATT

body2007
Judgment 1. Oral Judgment by Dr. J.N. Bhatt. CJ 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 26.8.1988, passed by the Deputy Director of Consolidation, Rohtas, Sasaram, in Revision No. 3139 of 1987 allowing the revision and setting aside the order passed in appeal. 2. The main controversy in focus relates to immovable property bearing R.S. Khata No. 71, R.S. Plot No. 603 area one decimal which has been carved out of C.S, khata 6, C.S. Plot No. 491, area 10 decimals of village Lilwanchh. C.S. Khata No.6 was the ancestral khata coming from the time of common ancestor Bhore Mahto. It contained C.S. Plot No. 491 (area 10 decimals) and C.S. Plot No. 507 (area 15 decimals). In revisional Survey, R.S. Khata No. 71 has been made having an area of 19 decimals. The petitioners claim that C.S. Khata No. 6 had, already, been partitioned by the ancestors of the petitioners and respondent no. 3, Mosafir Singh and ethers. R.S. Khatian of Khata No. 71 has been prepared, jointly, but possession of the parties has been shown in the remarks column of khatiyan according to the actual possession of the parties. R.S. Plot No. 603 has been recorded in the possession of the petitioners. The house of the petitioners is on R.S. Plot Nos. 603 and 606. There is no separate outlet "(Niksar)" for house of Plot No. 603 and its outlet is through house of Plot No. 606. In R.S. Khata No. 71 possession of the parties has been correctly recorded. At the time of partition those who got lesser area in C.S. Khata 6 were compensated with other lands. The petitioners reside with their families in the house situated in R.S. Plot No. 603 constructed by the ancestors of the petitioners. 3. During revisional survey, parcha of Plot No. 603 is alleged to have been made by mistake in the name of respondent No. 3, Musafir Singh and parcha of Plot no. 608 was made by mistake, exclusively, in the name of the petitioners. This error came to be corrected with consent of parties. Therefore, Plot No. 603 was recorded, exclusively, in the name and possession of the petitioners and the possession of respondent no. 3 was recorded on Plot No. 608 alongwith the petitioners. 4. The respondent no. 608 was made by mistake, exclusively, in the name of the petitioners. This error came to be corrected with consent of parties. Therefore, Plot No. 603 was recorded, exclusively, in the name and possession of the petitioners and the possession of respondent no. 3 was recorded on Plot No. 608 alongwith the petitioners. 4. The respondent no. 3, herein, has contended that OS. Khata No. 6 was ancestral land of the parties and other co-sharers. Therefore, he claims his right in R.S. Plot No. 603 measuring about one decimal of land. It is his case that he raised the house and he has been residing therein for last four years. In revisional survey, parcha was prepared in his name in Plot No. 603. Due to mistake by the survey authorities, the record of rights has been prepared in the name of Ramrup and Ramswarup. Therefore, respondent no. 3 filed an application for correction of the same, under Sec.106 of the Bihar Tenancy Act but, in the meantime, as Consolidation proceedings under the provisions of the Bihar Consolidaiton of Holdings & Prevention of Fragmentation Act, 1956 ("Act of 1956"), had started, the case under the Bihar Tenancy Act abated. Thereafter, respondent no. 3, Musafir Singh filed a consolidation case being Consolidaiton Case no.1 of 1986-87 with a request to include Plot No. 603 in his khata. The Consolidation Officer, Dinara, allowed the case by his order, dated 26.11.1986. 5. Being aggrieved by the said order, the petitioners filed Appeal No. 956 of 1986-87 which was allowed by the Deputy Director, Consolidation, Rohtas, Sasaram, by order, dated 23.10.1987, which was further carried in revision by respondent no. 3 under Sec.35 of the Act of 1956 before the Director Consolidation. The said revision was allowed, by the impugned order. Hence, this petition at the instance of the petitioners in respect of the disputed property. 6. Learned counsels for the parties have offered their submissions. Facts and circumstances emerging from the records have been examined. The provisions of the Act of 1956 have been considered. Sec.35 of the Act of 1956 provides for revision and reference. 7. Hence, this petition at the instance of the petitioners in respect of the disputed property. 6. Learned counsels for the parties have offered their submissions. Facts and circumstances emerging from the records have been examined. The provisions of the Act of 1956 have been considered. Sec.35 of the Act of 1956 provides for revision and reference. 7. Since the dispute in this petition under Article 226 has been circumscribed to a very narrow compass and virtually on undisputed fact with regard to the competence of the Deputy Director, Consolidation in entertaining the revision under Sec.35 of the Act of 1956, let it be recorded that the main submission advanced on behalf of the petitioners has been that the order passed in revision, copy, whereof, is placed, as Annexure-1 of the petition, in Revision Case No. 3139 of 1987 is without jurisdiction, illegal and is non est in the eyes of law. 8. This submission is not disputed by the learned counsel for respondent No. 3, as far as this aspect of the dispute is concerned. 9. Sec.35 of the Act of 1956 provides for revision against the order of the appellate authority and the object of this Section is to empower the Director of Consolidation to see that the subordinate Courts do not act arbitrarily and illegally in exercise of their jurisdiction whereas, here, in the present case, the appeal, as well as, revision came to be heard by the same office and officer. This order in appeal came to be rendered by the Deputy Director, Consolidation, Rohtas, Sasaram, whereas revision against that was heard and decided by the Deputy Director, Consolidation (Headquarters), Patna. The person is the same. Office is also equal both the appellate, as well as, the revisional authority. This is ipse dixit impermissible even under the general principle of jurisprudence, apart from inhibition incorporated under Sec.35 of the Act of 1956. The order passed in revision is, therefore, without jurisdiction and illegal. The revision ought to have been heard by the Director of Consolidation, as provided in the revisional powers under Sec.35 of the Act of 1956. 10. The basic cannon of fair play of the system under the jurisprudence, as well as, fundamental frame of rule of law is flagrantly violated in the instant case. The same authority cannot decide the matter in appeal, as well as, revision. 10. The basic cannon of fair play of the system under the jurisprudence, as well as, fundamental frame of rule of law is flagrantly violated in the instant case. The same authority cannot decide the matter in appeal, as well as, revision. No person has jurisdiction to decide the validity or otherwise of the order of the appellate authority who happens to be the same person. Justice should not only be done but it must also seem to have been done, whereas, in the present case, the impugned order recorded by the same authority as that of the appellate authority and challenged in this petition is without jurisdiction and in direct infraction of the provisions of Sec.35 of the Act of 1956. Therefore, it is patently illegal and void. 11. Therefore, upon joint request the matter is remitted to the Director, Consolidation to hear afresh in terms of Sec.35 of the Act of 1956, after giving a fresh opportunity of hearing to the parties, in accordance with law, expeditiously, and as early as possible within the upper time-limit of four months after the date of receipt of the writ of this Court. Since the only legal and sole contention, which pertains to the legal aspect i.e. jurisdiction goes to the root of the matter, the aspects of the matter and other points have not been gone into. 12. This petition shall, accordingly, stand allowed but without costs. Rule made absolute. No costs.