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2013 DIGILAW 890 (PAT)

Fulgena Kuwer v. State of Bihar

2013-07-26

BIRENDRA PRASAD VERMA

body2013
ORDER Heard learned counsel appearing on behalf of the petitioners and learned Assistant Counsel to learned Standing Counsel No. 27 appearing on behalf of the respondent Nos. 1 to 4. Unfortunately, despite valid service of notice, the contesting respondent Nos. 5 to 10 have chosen not to appear and contest the claims made on behalf of the petitioners in the present proceeding under Articles 226 and 227 of the Constitution of India. 2. The original petitioner Fulgena Kuer, who is now dead and has been substituted by her heirs and legal representatives, being aggrieved by an order dated 10.6.1986 (Annexure-2) passed in Appeal No.993 of 1984-85 by the respondent Assistant Director of Consolidation, Rohtas (Sasaram), as also the revisional order dated 17.9.1988 (Annexure-3) passed in Revision Case No. 2032 of 1986 by the respondent Deputy Director of Consolidation ( Headquarter), Patna in his purported exercise of powers under Section 35 of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (in short ‘Consolidation Act), has preferred the present writ petition under Articles 226 and 227 of the Constitution of India assailing the validity and correctness of the aforesaid two orders. 3. The dispute relates with respect to 13.27 acres of lands of Khata No.11,12 and 13 situate at Village Siswar, P.S.Bhagwanpur, District Rohtas. It appears that register of lands in terms of Section 9(2), and statement of principles of the unit in terms of Section 9A of the Consolidation Act was prepared by the Assistant Consolidation Officer, Bhagwanpur while consolidation proceeding was going on. Accordingly, register of lands so prepared under Section 9(2) of the Consolidation Act and statement of principles so prepared under Section 9A of the Consolidation Act was published in terms of Section 10(1) of the Consolidation Act. However, at that time, no objection was filed by respondent no.10 under Section 10(2) of the Consolidation Act and the Consolidation proceeding proceeded further. 4. It appears that subsequently under Section 10-B of the Consolidation Act, respondent No. 10 filed an objection laying her claim over the lands in question, which gave rise to Consolidation Case No.1 of 1981-82 before the respondent Consolidation Officer, Bhagwanpur (Rohtas). 4. It appears that subsequently under Section 10-B of the Consolidation Act, respondent No. 10 filed an objection laying her claim over the lands in question, which gave rise to Consolidation Case No.1 of 1981-82 before the respondent Consolidation Officer, Bhagwanpur (Rohtas). After giving opportunity of hearing to all concerned, the aforesaid objection case filed on behalf of the respondent No. 10 was finally rejected by a reasoned and speaking order dated 7.12.1984 (Annexure-1) by the respondent Consolidation Officer, Bhagwanpur (Rohtas) on the ground that claim raised on behalf of the respondent no.10 was barred by Section 10-A of the Consolidation Act. However, while rejecting the objection filed on behalf of the respondent No.10, the respondent Consolidation Officer, considered the case of all the parties at great length and thereafter the claim raised on behalf of the respondent No. 10 on the basis of a deed of gift was rejected in view of bar created under Section 10-A of the Consolidation Act. 5. Respondent No. 10, being aggrieved by the aforesaid order dated 7.12.1984 (Annexure-1), preferred Consolidation Appeal No. 993 of 1984-85 before the respondent Assistant Director of Consolidation, Rohtas (Sasaram), which was finally allowed by the impugned appellate order dated 10.6.1986 (Annexure-2) and order passed by the respondent Consolidation Officer was set aside. The revision case preferred by the petitioners in terms of Section 35 of the Consolidation Act was finally rejected by the respondent Deputy Director of consolidation (Headquarter), Patna by the impugned order dated 17.9.1988 (Annexure-3). 6. As already noted above, despite issuance of notice and valid service thereof upon the contesting respondent Nos. 5 to 10, none has appeared to contest the claim made on behalf of the petitioners in the preset proceeding. Even, no counter affidavit has been filed on behalf of the aforesaid respondents disputing the claim of the petitioners. 7. After having heard learned counsels appearing on behalf of the parties, and on consideration of the materials available on record, this Court is of the considered opinion that the impugned appellate order dated 10.6.1986 (Annexure-2) and impugned revisional order dated 17.9.1986 (Annexure-3) have been passed without considering the scheme, scope and mandate of Section 10-A and 10-B of the Consolidation Act. 8. 8. In order to appreciate the points involved in the present proceeding, it would be appropriate to reproduce Section 10-A and 10-B of the Consolidation Act, which read as follows: – “10-A. Bar to objection. – 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 Section 10 but has not been raised, shall not be raised or heard at any subsequent stage of the Consolidation proceeding.” 10-B. Decision of matters relating to charges and transaction affecting rights or interest recorded in revised records. – (1) All matters relating to changes and transfers affecting any rights or interests recorded in the register of land published under sub-section (1) of Section 10 for which cause of action had not arisen when proceedings under Sections 8 and 9 were started or were in progress may be raised before the consolidation Officer within thirty days of cause of action, but not later than the date of notification under Section 26-A or under sub-section (1) of Section 4A. (2) The provisions of Sections 8 and 9 shall mutatis mutandis apply to the hearing and decision of any matter raised under sub-section (1) as if it were a matter raised under the aforesaid Section.” 9. Under the scheme of the Consolidation Act, if any person is aggrieved with respect to entry made in the register of lands prepared under Section 9(2) and statement of principles prepared under Section 9A, he can raise objection or can lay his or her claim with respect to entry so made with respect to the disputed lands under Section 10(2), once there is a publication under Section 10(1) of the Consolidation Act. If no such objection is filed by the aggrieved person under Section 10(2) of the Consolidation Act, then the bar under section 10-A becomes operational and no further objection can be raised with respect to entry made in register of lands and statement of principles duly published under Section 10(1) of the Consolidation Act. If no such objection is filed by the aggrieved person under Section 10(2) of the Consolidation Act, then the bar under section 10-A becomes operational and no further objection can be raised with respect to entry made in register of lands and statement of principles duly published under Section 10(1) of the Consolidation Act. However, Section 10-B provides that if there has been some subsequent developments after publication made under Section 10(1) of the Consolidation Act or any final order has been passed under Section 10(2) of the Consolidation Act, then on account of such subsequent developments, an objection can be filed under Section10-B of the Consolidation Act, if such cause of action had not arisen when proceedings were started under Sections 8 and 9 and publication was made under Section10 (1) of the Consolidation Act. Section 10-B has been incorporated in the Consolidation Act to safeguard the interest of subsequent transfer/changes having taken place during the interregnum period, after publication made under Section 10(1) and before issuance of notification under Section 26-A of the Consolidation Act. Otherwise, if no objection was filed on the basis of previous claim and previous documents in terms of Section 10(2) of the Consolidation Act, then such claim of the aggrieved person cannot be considered under Section 10-B of the Consolidation Act, in view of bar created under Section 10-A of the Consolidation Act. 10. Now, coming to the present case, admittedly respondent no. 10 had not filed her objection under section 10(2) of the Consolidation Act. Therefore, her claim with respect to the lands under dispute was barred by Section 10-A of the Consolidation Act and, accordingly, her objection filed under section 10-B was rightly rejected by the respondent consolidation Officer, Bhagwanpur by his order dated 7.12.1984(Annexure-1). Unfortunately, respondent Assistant Director of Consolidation while exercising appellate powers and respondent Deputy Director of Consolidation, while exercising revisional powers under the Consolidation Act have failed to consider the scheme and object of Section 10-B read with Section 10-A of the Consolidation Act and both of them passed patently illegal and arbitrary orders, which cannot be sustained in law. 11. Unfortunately, respondent Assistant Director of Consolidation while exercising appellate powers and respondent Deputy Director of Consolidation, while exercising revisional powers under the Consolidation Act have failed to consider the scheme and object of Section 10-B read with Section 10-A of the Consolidation Act and both of them passed patently illegal and arbitrary orders, which cannot be sustained in law. 11. For the reasons recorded above, the impugned appellate order dated 10.8.1986(Anneure-2) passed in Appeal No. 993 of 1984-85 by the respondent Assistant Director of Consolidation, Rohtas ( Sasaram) and impugned revisional order dated 17.9.1988 ( Annexure-3) passed in consolidation Revision Case No. 2032 of 1986 by the respondent Deputy Director of Consolidation ( Headquarter), Patna are hereby set aside. 12. However, it is clarified that once a notification under section 26-A of the Consolidation Act is issued and Consolidation operation is finally closed in the unit, then the aggrieved party shall be at liberty to approach a civil court of competent jurisdiction for getting his/her right and title decided over the lands under dispute in accordance with law on the basis of evidence/documents/materials produced before the civil court. 13. In the result, the writ petition stands allowed to the extent indicated above. However, there shall be no order as to costs.