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2010 DIGILAW 982 (PAT)

Lal Mohar Choubey v. State Of Bihar

2010-04-27

DINESH KUMAR SINGH, NAVIN SINHA

body2010
JUDGEMENT Navin Sinha and Dinesh Kumar Singh, JJ. 1. Heard learned counsel for the appellants, learned counsel for the State of Bihar and learned counsel for the private respondents. 2. The judgment under appeal has set aside the order dated 31.3.2000 passed by the Deputy Director of Consolidation, Rohtas in Revision Case No.99 of 1997, which in its turn had set aside the order dated 14.1.1997 passed by the Assistant Director of consolidation in Appeal No.14 of 1989-90. 3. The short ground on which the writ petition was came to be allowed was that under Sec.34 (2)of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act (hereinafter referred to as the act), the revisional power conferred on the Director of consolidation could not be delegated to an Officer below rank of Joint Director of Consolidation. Thus the conclusion that the order passed by the Deputy director, Sub-ordinate in the rank to the Joint director was without jurisdiction and the consequent order of remand to the Director of Consolidation for disposal in accordance with law by an authority not below the rank of Joint Director. 4. This Court on 31.7.2008 had required the state of Bihar to file an affidavit, whether the Director of Consolidation had delegated his revisional power under Sec.34 (2) of the Act to the Deputy Director of Consolidation Headquarters. It was further observed that the provision authorizes the Director of consolidation with the approval of the State government to delegate his powers to any officer not below the rank of Deputy Director. 5. Fresh counter affidavit has been filed on behalf of the State of Bihar. Paragraph-3 of the same specifically states that after taking consent from the state Government, the Director Consolidation vide notification no.539 dated 25.7.1998 delegated the revisional power under Sec.34 (2) of the Act to the deputy Director Consolidation. This aspect of the matter has further been considered by a Division bench of this Court in L. P. A. No.702 of 2000 disposed off on 8.7.2008. 6. The Division Bench has held as paragraphs 4 and 6 as follows:- "4. This aspect of the matter has further been considered by a Division bench of this Court in L. P. A. No.702 of 2000 disposed off on 8.7.2008. 6. The Division Bench has held as paragraphs 4 and 6 as follows:- "4. It has been specifically provided in sub-section (4) of section 2 of the Act that the Director of Consolidation is appointed as such by the State government to exercise the powers and to perform the duties of Director of consolidation under the Act or the rules made thereunder and shall include an additional Director of Consolidation and a joint Director of Consolidation. At the same time, sub-section (4a) of section 2 of the Act defines Deputy Director of consolidation as an officer not below the rank of Additional District Collector appointed as such by the State government to exercise such powers and to perform such duties of the Director of consolidation as may be delegated to him by the Stage Government and shall include an Assistant Director of consolidation. 6. Sub-section (2) of section 34 of the Act in no uncertain terms authorizes the Director of Consolidation, with the sanction of the State, to delegate any of his powers or functions under the act to any officer not below the rank of deputy Collector. Therefore, by exercise of the power of delegation vested in the director of Consolidation under Sub-section (2) of section 34 of the Act, the director of Consolidation may, with the sanction of the State, delegate his power of revision also to any officer not below the rank of a Deputy Collector. By virtue of the definition given in sub-section (4a)of section 2 of the Act, Deputy Director of consolidation cannot be an officer below the rank of Additional District Collector and the rank of Additional District collector is not below the rank of deputy collector. There was, therefore, no difficulty on the part of the Director of consolidation to delegate his power of revision to the Deputy Director of consolidation, provided, however, he had in fact made such delegation. For that purpose, we wanted to ascertain whether, in fact, any such delegation was made. There was, therefore, no difficulty on the part of the Director of consolidation to delegate his power of revision to the Deputy Director of consolidation, provided, however, he had in fact made such delegation. For that purpose, we wanted to ascertain whether, in fact, any such delegation was made. We find from Annexure-A to the counter affidavit filed by the State that on 4th september, 1997 the Director of consolidation, with the sanction of the state, delegated the power of revision to the Deputy Director of Consolidation, Sri rajendra Prasad Singh, who passed the revisional order, which was challenged in the writ petition. " 7. There is no occasion for us to arrive at any different conclusion. 8. The appeal is allowed. The judgment and order under appeal is set aside.