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2007 DIGILAW 746 (PAT)

Ram Lagan Yadav v. State Of Bihar

2007-04-13

NAVANITI PRASAD SINGH

body2007
Judgment 1. Heard the parties. 2. Private respondents have appeared and with their consent this writ petition is being disposed of at the stage of admission itself. 3. The petitioner h-ad filed an application in terms of Sec. 4(hh) of the Bihar Land Reforms Act. 1950 before the Subdivisional Officer, Aurangabad, stating that the settlement was with the petitioners brother and as such requested for fixation of rent. The private respondents objected. 4. After considering the facts, the Subdivisional Officer passed order. The private respondents being aggrieved by the aforesaid, filed an appeal before the Additional Collector and, as submitted by the petitioner, without referring to the court records and other materials, the Additional Collector allowed the appeal of the private respondents and set aside the order of the Subdivisional Officer. It is this order of the Additional Collector that has been challenged before this Court. 5. The question raised is whether Additional Collector was at all competent to entertain, hear and decide an appeal from an order passed under Sec. 4(hh) of the Bihar Land Reforms Act. Sec.2(e) of the Act defines Collector. "Collector" includes any officer [not below the rank of a Sub-Deputy Collector appointed] by the State Government to discharge all or any of the functions of a Collector under this Act." 6. The provision of Appeal is contained in the proviso to Sec. 4(hh). The rules in this regards are rule 4-B: "4-B. Appellate authority under the proviso to sec. 4(cc), the first proviso to sec. 4(h) and the proviso to sec. 4(hh).-An appeal against an order of the Collector under the proviso to clause (cc) of sec. 4, the first proviso to clause (h) of sec. 4 and under the proviso to clause (hh) of sec. 4 shall lie - (i) if such order is passed by any officer below the rank of the Collector of a district, to the Collector of district; and (ii) if such order is passed by the Collector of the district, to the Commissioner of the Division." 7. From a bare perusal of the aforesaid statutory provision, it would be seen that Sub-section (e) of Sec.2 being a definition clause is to be relied only when there is nothing repugnant to the context. Collector, as defined, is an inclusive definition. From a bare perusal of the aforesaid statutory provision, it would be seen that Sub-section (e) of Sec.2 being a definition clause is to be relied only when there is nothing repugnant to the context. Collector, as defined, is an inclusive definition. A reference to proviso to Section , 4(hh) would clear that the appeal would lie from an order of a Collector, being an officer below the rank of Collector of the district to the Collector of the district. A reference to rule 4-B would also show the same. It cannot be said that in both the provisions merely because expression of Collector is used, the definition clause has to be applied mechanically and therefore held that Collector would include Additional Collector. In my view, that is a misconceived interpretation. 8. The expression used in the proviso and rule referred to "Collector of the district" is distinct from Collector simplicitor. In every district there is only one Collector of the district. The expression "Collector of the district" cannot be read along with the definition clause as concept of Collector in the proviso and the rules are repugnant to each other. Therefore, in view of the opening clause of Sec.2, itself the definition clause will not apply. Accordingly, it is held that appeal would lie not the Collector but to the Collector of the district. Additional Collector is not the Collector of the district. 9. Further I may point out that where the statute itself provides that the appeal would be to the Collector of the district, that being the legislative mandate, the Collector of the district has no authority to delegate the matter to another, who may be of the rank of Collector or may be Collector as defined for the purposes of the Act. 10. In that view of the matter, I hold that the appeal, as filed by the private respondents, was before an authority, which was incompetent to hear the matter. The order thus suffers form vice of corum non-judice and is non est. It is accordingly set aside. 11. It was then argued by Mr. Narayan Singh, learned senior counsel for the private respondents that the Additional Collector has gone at length and examined materials and his order is otherwise correct, this court should not interfere with such an order. The order thus suffers form vice of corum non-judice and is non est. It is accordingly set aside. 11. It was then argued by Mr. Narayan Singh, learned senior counsel for the private respondents that the Additional Collector has gone at length and examined materials and his order is otherwise correct, this court should not interfere with such an order. I am afraid the contention has been raised only to be rejected for it is well settled that a right order by a wrong forum is no order. The jurisdiction cannot be conferred except by legislature or under authority of the legislature. Even consent cannot confer jurisdiction. If the order is bad for want of jurisdiction, mere appearance of the parties would not make such an order valid for which authority had no jurisdiction to take cognizance of the matter. 12. Mr. Narayan Singh, learned senior counsel submits that objections to the jurisdictional error has to be raised by a party at the first opportunity. Having appeared before the authorities, they may not be permitted to challenge their jurisdiction. 13. I am afraid this argument has been raised only to be rejected. The error of jurisdiction was patent error and not a latent error. Where an authority lacks inherent jurisdiction, there is no question of waiver or estoppel or acquisition (sic- acquiescence?) to apply. Mere appearance of a party would not confer jurisdiction on the authority if the authorities otherwise lack jurisdiction. This is an inherent lack of jurisdiction. 14. In that view of the matter, this writ application is allowed. The order of the Additional Collector, Aurangabad, dated 21.8.2000 passed in Appeal Case No. 5/ 98, Annexure 5, is quashed.