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2009 DIGILAW 1203 (PAT)

Krityanand Prasad v. State Of Bihar

2009-09-09

RAVI RANJAN

body2009
JUDGEMENT 1. Heard learned counsel for the petitioners and the State. None has appeared on behalf of the Respondent No. 5 though a vakalatnama had already been filed on his behalf. 2. The petitioners are aggrieved by the order dated 25.9.2002 passed by the Commissioner. Bhagalpur Division, Bhagalpur in Misc. Case No. 2/2002-2003, whereby he has appointed the Circle Officer, Shahkund as Receiver of the land in dispute till the disposal of the aforesaid case. 3. It has been submitted on behalf of the petitioners that petitioners had preferred Suit No. 815/1976 under Section 106 of the Bihar Tenancy Act (herein after referred to as "the B.T. Act") challenging the entries made in the final publication of the records of rights concerned. The aforesaid suit was dismissed by order dated 3.1.2000, as contained in Annexure-2. The petitioners then filed Revision bearing R.C. No. 1/2000 under Section 108 of the B.T. Act, before the District Magistrate-cum- Settlement Officer, Bhagalpur. The aforesaid revision was allowed and direction was given for necessary correction in the records of rights. Being aggrieved thereby, the Respondent No. 5 had preferred Misc. Case No. 2/2002-03 before the Commissioner, Bhagalpur Division. In that case, notices were issued to the petitioners. However, on 12.11.2003 when the petitioners (opposite parties therein) and the State were not represented, on the prayer of the Respondent No. 5 (the petitioner therein), the Respondent No. 2 had appointed CO. Shahkund as Receiver of the land in dispute till the disposal of the case. 4. At the time of hearing of this case, the petitioners have raised only a short question of law with regard to the maintainability of the Miscellaneous Case itself before the Commissioner. Bhagalpur Division, Respondent No. 2. 5. It has been contended on behalf of the petitioners that the Commissioner, Bhagalpur Division, was not empowered to hear a revision/appeal or miscellaneous case against the revisional order passed by the Revenue Officer under Section 108 of the B.T. Act and as such the entire proceeding is vitiated. It has been urged that since the proceeding itself was not maintainable, the interim order appointing the Receiver was also bad. 6. Learned counsel for the petitioners drew attention of this Court towards Section 109A of the B.T. Act which is a provision for appeals from decisions of Revenue Officer. It has been urged that since the proceeding itself was not maintainable, the interim order appointing the Receiver was also bad. 6. Learned counsel for the petitioners drew attention of this Court towards Section 109A of the B.T. Act which is a provision for appeals from decisions of Revenue Officer. The relevant portion of the provisions of Section 109A of the Act are as under: "109A. Appeals from decisions of Revenue Officers. (1) The State Government shall appoint one or more persons to be a Special Judge for purpose of hearing appeals from the decisions of Revenue Officers under Sections 105 to 108 (both inclusive). (2) An appeal shall lie to the Special Judge from the decisions of a Revenue Officer under Sections 105 to 108A (both inclusive) and, the provisions of the Code of Civil Procedure (14 of 1882) relating to appeals shall; as nearly as may be, apply to all such appeals." 7. It would be manifest from the plain reading of the aforesaid provision that an appeal would lie before a Special Judge from the decision of the Revenue Officer under Section 105 to 108A (both inclusive) of the Act. 8. Admittedly, the revisional order as contained in Annexure-3 has been passed by the District Magistrate-cum-Settlement Officer, Bhagalpur Division, in purported exercise of the power under Section 108 of the B.T. Act. 9. Learned counsel for the petitioners further drew the attention of this Court towards the Notification of the State Government dated 26.9.1989, as contained in Annexure-4, whereby the Special Judges for the purpose of hearing the appeals under Section 109A of the Act have been specified. In view of that, the contention was that the entire proceeding was vitiated as the Commissioner, Bhagalpur Division, was not empowered to hear any revision, appeal or miscellaneous case. 10. Learned counsel appearing for the State submitted that miscellaneous case was at the admission stage and was not admitted and the order dated 12.11.2003 was merely interim order for protection of the land in dispute which was in controversy between the parties. However, he could not lay hand upon any provision of law or authoritative pronouncement upon this issue to demonstrate that the Commissioner, Bhagalpur Division, was entitled to hear such revision or miscellaneous case against the revisional order passed by the Revenue Authorities under Section 108. 11. However, he could not lay hand upon any provision of law or authoritative pronouncement upon this issue to demonstrate that the Commissioner, Bhagalpur Division, was entitled to hear such revision or miscellaneous case against the revisional order passed by the Revenue Authorities under Section 108. 11. Neither any counter affidavit has been filed on behalf of the Respondent No. 5 nor was anyone present at the time of hearing of this application on his behalf though a vakalatnama is on record. 12. In view of the aforesaid discussions, this Court finds substance in the submissions raised on behalf of the petitioners. 13. The Respondent No. 3, the Collector- cum-Settlement Officer, Bhagalpur, has passed the revisional order in purported exercise of his powers under Section 108 of the B.T. Act. There is a provision for appeal against such order under Section 109A of the B.T. Act before the Special Judge. Bhagalpur. The Commissioner concerned, thus, was a forum non competens to entertain any revision or appeal against such order. As the Misc. Case No. 2/2002-03 itself was not maintainable before him, the interim order dated 12.11.2003 was also without jurisdiction. 14. In that view of the matter, I set aside the order dated 12.11.2003 as contained in Annexure-1 as it has already been held that the Misc. Case concerned was not maintainable under the Act. 15. Accordingly, this writ application is allowed. However, this order will not come in way of the respondents from availing any other remedy permissible under law.