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2015 DIGILAW 799 (PAT)

Hari Kishun Chamar v. State of Bihar

2015-05-22

RAMESH KUMAR DATTA, RAVI RANJAN

body2015
DR. RAVI RANJAN, J.:–I have heard the parties and perused the records of the case. 2. This appeal is directed against the judgment/order dated 15.01.2009 rendered by a Single Judge of this Court in C.W.J.C. No. 2614 of 2007 by which the learned Single Judge has refused to interfere with the order impugned dated 02.08.2005 passed by the Joint Director, Consolidation, Gaya in purported exercise of his revisional power under section 35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter to be referred to as ‘the Act’) in Revision Case No. 36 of 2000. 3. Short facts, emanating out of the records that would be necessary for consideration of the lis, stand enumerated as under: The appellant-writ petitioner approached this Court by filing C.W.J.C. No. 2614 of 2007 for quashing the order dated 02.08.2005 passed by the Joint Director, Consolidation, Gaya in Revision Case No. 36 of 2000, which was registered under section 35 of the Act. The aforesaid Revision Case was filed by the respondent Nos. 4 to 7 with a prayer to make correction in the Chakbandi Khatian with respect to Chak Khata No. 193 of an area of 1.58 acres. A copy of the revision petition filed in Revision Case No. 36 of 2000 filed before the Joint Director, Consolidation, Gaya has been appended as Annexure 7 to the writ petition. A genealogical table has also been given in the aforesaid Revision Application showing one Sukhari Chamar as common ancestor of the parties who had three sons, namely, Briksha Chamar, Buttu Chamar and Mirchu Chamar. The respondents 4 to 7 claim to be sons of late Buttu Chamar whereas the appellant-writ petitioner has been shown to be the son of Briksha Chamar. It has further been stated that the ancestor of both the parties, namely, Sukhari Chamari, held and possessed the lands of C.S. Plot Nos. 93 and 94, which were partitioned after his death between his three sons, namely, Briksha Chamar, Buttu Chamar and Mirchu Chamar. It has further been contended that Mirchu Chamar had sold his entire share of 17 kathas and 14 dhurs of land appertaining to C.S. Plot Nos. 93 and 94, to his brother Buttu Chamar through registered sale deed no. 3396 dated 30.01.1952 and had left the village along with his family. It has further been contended that Mirchu Chamar had sold his entire share of 17 kathas and 14 dhurs of land appertaining to C.S. Plot Nos. 93 and 94, to his brother Buttu Chamar through registered sale deed no. 3396 dated 30.01.1952 and had left the village along with his family. Similarly, son of Briksha Chamar, namely, Hari Chamar, also sold an area of 26½ decimals of C.S. Plot Nos. 93 and 94 to Buttu Chamar through a registered sale deed no. 1628 dated 01.08.1962 and put him in possession over the same. Thereafter, Buttu Chamar came in cultivating possession of an area of 1.63 acres of land of C.S. Plot Nos. 93 and 94. It has further been stated that Briksha Chamar had further sold 32 decimals of land of C.S. Plot Nos. 93 and 94 to one Sadhu Singh through a registered sale deed and put him in possession over the same. However, disputed entry with regard to C.S. Plot No. 193 was made in favour of the parties wrongly mentioning 25-Ansh share of the opposite party, i.e., the present appellant-writ petitioner in the disputed land because allegedly the father of the writ petitioner and the brother had sold 58½ decimals out of his share of 74 decimals to the respondent nos. 4 to 7 and one Sadhu Singh out of 74 decimals, however, during he consolidation operation Chak Khata No. 193 was opened in favour of the respondent nos. 4 to 7 and their mother for 25-Ansh and according to them, 25- Ansh was wrong and incorrect. It is further stated that, when the writ petitioner handed over the consolidation Khatian to the respondent nos. 4 to 7, they came to know about the wrong entry and thereafter the aforesaid revision was filed before the respondent no. 2. 4. Case of the writ petitioner as set out in the writ petition is that he and the respondent nos. 4 to 7 were enjoining the joint family status till 25.09.1987 when the respondent nos. 4 to 7 filed an application for partition of the joint holdings before the Consolidation Officer in which notice was issued upon him. A copy of the said notice has been brought on record as Annexure 2. 4 to 7 were enjoining the joint family status till 25.09.1987 when the respondent nos. 4 to 7 filed an application for partition of the joint holdings before the Consolidation Officer in which notice was issued upon him. A copy of the said notice has been brought on record as Annexure 2. It has further been stated that after due consideration of the matter, the Consolidation Officer allotted shares to both the parties and issued Form No. 17 on 06.06.2000 in which both the parties were shown to be owners of 0.89 acres respectively and, accordingly, the writ petitioner paid land revenue for the years 2005-06 and 2006-07 and obtained rent receipts. The copy of concerned Form No. 17 has been brought on record as Annexure 3, whereas the rent receipts showing payment of land revenue by the petitioner after Annexure 4 having been passed by the Circle Officer have been brought on record as Annexures 5 and 6. It is submitted that, thereafter, the revision petition was filed before the Joint Director, Consolidation by the respondents. The Director, Consolidation issued notice upon the opposite party, i.e., the appellant-writ petitioner for appearance on 24.06.2005. The appellant-writ petitioner though appeared through counsel but could not submit the requisite documents in support of his claim. Thus, the impugned order has been passed without appreciation of any evidence on his part directing for modifying the entry with respect to the Chak Khata No.193 by making an entry in favour of the private respondents to the extent of 1.63 decimals of land whereas entry is to be made in favour of the writ petitioner for only 0.16 decimals. In aforesaid factual background the writ petition was filed. 5. Learned Single Judge has opined that the counsel for the writ petitioner did appear and made his submission but he did not file documents in support of his submission despite opportunity having been offered and, thus, in view of the fact that the Principle of Natural Justice was observed, the order passed by the Joint Director, Consolidation, cannot be faulted with. As a result, the writ petition was dismissed. 6. It is submitted on behalf of the appellant that in view of private respondents themselves having filed a petition for partition of the joint holding of C.S. Plot Nos. As a result, the writ petition was dismissed. 6. It is submitted on behalf of the appellant that in view of private respondents themselves having filed a petition for partition of the joint holding of C.S. Plot Nos. 93 and 94 before the Consolidation Officer, in which notice was issued to the writ petitioner vide Annexure 2 in the year 1987 itself, they cannot come up with a stand that they did not have knowledge of the proceeding concerned. In support of his submission, learned counsel refers to Annexure 2, which appears to be a notice issued by the Consolidation Officer concerned. It is submitted that in his purported exercise of powers under section 8A of the Act, he partitioned joint holdings. It is contended that the factum of filing a petition for partition of the joint holdings in the year 1987 by the respondents demolishes their case of previous partition in the year 1938. It is next contended that the Joint Director of Consolidation, in exercise of his revisional power under section 35 of the Act, is empowered, either on his own motion or on the application of any party or on reference being made by any subordinate authority, to call for and examine the records of any case decided or proceeding taken by subordinate authority for the purpose of satisfying himself as to the regularity of the proceeding or as to the correctness, legality or propriety of any order passed by such authority and after hearing the parties he may pass necessary order. It is urged that in the present case, the revisional authority has taken up and considered the revision as if it was a fresh case filed before him and has substituted himself as an original authority for taking a decision. It has been urged that the revisional authority, being a creature of the Statute, cannot derive a power larger or in different manner than what has been provided in the concerned Statute. He has been empowered to call for the records and examine the regularity and correctness of the order passed by the subordinate authority but it does not appear from the impugned order that he had called for the records and considered the case and regularity of the proceeding or the correctness and legality or propriety of the order passed by the subordinate authority. He, in fact, has passed an order on consideration of fresh evidence led by the respondents. 7. Per contra, learned counsel for the respondents has submitted that the writ petitioner did not file a single chit of paper in support of his claim before the revisional authority. Learned counsel has further submitted that the learned Single Judge has correctly held that, as the petitioner could not produce any document for perusal even after appearance through a counsel, the order impugned has rightly been passed by the Joint Director, Consolidation after observing the Principles of Natural Justice. It has further been submitted that the Director has very sweeping powers under Section 35 of the Act. He can revise the orders passed by original authority even though appeal has not been preferred against it. A reference is made in this regard to a decision of Single Bench of this Court rendered in Sabitri Devi Vs. Rangnath Tiwary and Anr. [ 2005(2) PLJR 476 ]. 8. On consideration of the rival contentions made by the parties, in our considered opinion, the following issue emerges for consideration:— “Whether the revisiional authority was correct in passing an order on the basis of fresh evidence produced by one of the parties without calling for and examining the records of the proceedings and the order passed by the subordinate authority, if any” 9. From perusal of the provisions of the Act, it appears that consolidation operation commences by notification issued by the State Government declaring its intention to make a scheme for consolidation of holdings under section 3 of the Act and the effect of such publication of notice under sub-section (1) of Section 3 in the official gazette as enumerated in section 4 of the Station is that no suit or legal proceeding with respect to any land in such area shall be entertained by any court and the pending proceeding shall also abate under section 4 (c) of the Act. Thereafter, up-to-date record of right before consolidation is to be prepared under section 8 of the Act. Section 8A of the Act lays down that the consolidation officer can partition the joint holdings. For better appreciation, the provisions contain in Section 8A of the Act are quoted below:— “S. 8A. Partition of joint holdings.—(1) The Assistant Consolidation Officer or the Consolidation Officer may, either on an application or of their own motion, partition joint holdings. Section 8A of the Act lays down that the consolidation officer can partition the joint holdings. For better appreciation, the provisions contain in Section 8A of the Act are quoted below:— “S. 8A. Partition of joint holdings.—(1) The Assistant Consolidation Officer or the Consolidation Officer may, either on an application or of their own motion, partition joint holdings. (2) The partition of joint holdings shall be effected on the basis of shares: Provided that where the raiyats concerned agree, it may be effected on the basis of specific plots.“ 10. It is apparent from perusal of the aforesaid provision that the Consolidation Officer/Assistant Consideration Officer can partition the joint holdings on the basis of shares and, where the raiyats concerned are agreeable, it may be effected on the basis of specific plots. Thereafter, register of lands is prepared under section 9 of the Act and preparation of statement of principles for consolidation after consultation with the Village Advisory Committee and others is done under section 9A of the Act and both are published in the manner prescribed. Any person, within 45 days, can file objection under sub-section (1) of Section 10 of the Act in case he is aggrieved by such publication of register which is to be decided by the Assistant Consideration Officer or the Consolidation Officer under sub-section (5) of Section 10 of the Act. A person aggrieved by the aforesaid order would have an opportunity of filing an appeal under sub-section (6) of Section 10 of the Act before the Assistant Director of Consolidation. In such case, the Assistant Director of Consolidation would be required under sub-section (7) of section 10 of the Act to make legal inspection and, thereafter, pass an order which shall be final. Section 10A of the Act creates bar to objections being raised with respect to any entry made in the map or registers prepared under section 9 of the Act or the statement of principles prepared under section 9A of the Act relating to the consolidation area, which might or ought to have been raised under section 10 of the Act but was never raised. Thereafter, preparation of draft scheme is to be made under section 11 of the Act, which is to be published under section 12 of the Act. Thereafter, preparation of draft scheme is to be made under section 11 of the Act, which is to be published under section 12 of the Act. Section 12(2) of the Act again provides an opportunity, subject to the provisions contained in section 10A of the Act, to a person to dispute the propriety and correctness of the entries in the scheme which is to be disposed of under section 12A of the Act. If any person is aggrieved by the order of the Consolidation Officer, then there is again an opportunity of appeal under sub-section (2) section of Section 12A of the Act and, thereafter, the scheme is to be submitted before the Director of Consolidation under section 13 of the Act and, ultimately, under section 15 of the Act, a certificate of transfer in prescribed form is granted to every raiyat to whom a holding is allotted in pursuance of the scheme of Consolidation. The consolidation proceedings are closed as soon as there is a notification published in official gazette regarding its closure under section 26A of the Act. 11. Now, the questions to be examined would be:— (i) Whether the respondent nos. 4 to 7 did approach the Assistant Consolidation Officer for partition of joint family holdings in which notice was issued to the writ petitioner, as contained in Annexure 2 to the writ petition? (ii) Whether the parties agreed before the competent authority that not only their respective shares on partition should be defined but the specific plots should be partitioned? (iii) Whether the respondent nos. 4 to 7 filed any objection under section 10(2) of the Act regarding preparation of register of land after such partition of holding, and if yes, then what was the decision of the competent authority? (iv) If such objection was filed and a decision was taken by the Consolidation Officer against the private respondents, then whether an appeal was preferred by them under sub-section (6) of Section 10 of the Act? 12. These were the relevant questions apart from the legality and propriety of the order passed by the subordinate authority, which were required to be examined by the revisional authority while passing any order in revision after calling for the records and examining the same as entries were made in the registers prepared by the consolidation authorities and those entries were being questioned before him. 13. 13. There is no quarrel with the proposition that the revisional power under section 35 of the Act overrides the bar created under section 10A of the Act as the same is no longer res integra in view of a Full Bench decision of this Court rendered in Seikh Haidar Zan Vs. Md. Yusuf Ansari & another : 2000(2) Patna Law Journal Reports 338. The relevant passage from the aforesaid decision is reproduced as under:— “22. After having explained the scope of the provisions of section 10A I would conclude the discussion on this topic holding that the bar created by section 10A is not applicable to the exercise of revisional power under section 35 of the Consolidation Act and the finding of the Division Bench in Hari Narayan Singh’s case (supra), on the point is not correct in law. The answer to question no. 2 is accordingly given in the negative.” 14. It is also well settled that the powers of the revisional authority under the scheme of consolidation are wide and extensive. Authorities subordinate to him, being creatures of the Act, would exercise limited jurisdiction. Their powers would be hedged with the condition precedent. But so far the jurisdiction of the Director of Consolidation under section 35 of the Act is concerned, that is very wide overriding the provisions of section 10A of the Act but he has been empowered in such manner to ascertain that the subordinate authorities are not acting arbitrarily and illegally in exercise of their jurisdiction. Such power can be exercised by the Director of Consolidation either suo motu or on an application filed by a party. For better appreciation, the provisions of section 35 of the Act is quoted as under:— “S. 35. Revision and reference.—The Director of Consolidation may of his own motion or on the application of any party or on reference being made by any subordinate authority, call for and examine the record of any case decided or proceedings taken by such authority for the purpose of satisfying himself as to the regularity of the proceeding; or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings, and may after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.” 15. It would appear from perusal of the aforesaid provisions that the Director of Consolidation has power to call for and examine the record of any case decided or proceedings taken by subordinate authority for the purpose of satisfying himself as to the regularity of the proceeding; or as to the correctness, legality or propriety of any order passed by such authority. 16. However, while doing so it does not mean that he will exercise that power arbitrarily. Powers are wide and extensive but not unbridled and unfettered. He has to consider all aspects of the matter including the conduct of the party which has approached it such as whether such party has all along been negligent or is there any explanation for not raising the relevant objection during a proceeding before the subordinate authority. That apart, he will have to examine as to whether the proper procedures have been followed or not and also the legality or the propriety of the order passed by the officer concerned. 17. However, in the present case, he has done nothing. It does not appear from the impugned order, as contained in Annexure 1 to the writ petition, that he has even called for the records and examined the same. In my considered opinion, though the power of the Director under section 35 of the Act is immense and wide, however, he cannot decide an issue on the basis of the fresh evidence produced before him without calling for the records of the proceedings concluded by the subordinate authority and considering the evidence already produced by the parties and considered by the subordinate authority or the orders, if any, passed by the subordinate authority which had led to some entry in the registers concerned or a decision either under section 8A, 10(2), 10(6) or 12A of the Act. However, in a situation when some entries with respect to some plots were left out to be entered into the relevant registers or the rights of the parties could not be decided till the final scheme was submitted before the Director under section 13 of the Act or even after examination of the records of the proceedings before the subordinate authority, in the opinion of the Director, consideration of fresh evidence is required to be considered, in such situations he can do so in that given case after recording reasons for doing that. Though the revisional power under section 35 of the Act overrides the right created under section 10A of the Act but, at the same time, the Director would have to consider as to whether by not approaching the subordinate authority at an appropriate time without any valid cause having been shown, the revision filed by such person or party should be entertained or not also considering as to whether declining the same would cause great injustice to the party concerned. 18. Coming to the case in hand, even though the writ petitioner could not produce the document in support of his case, the revisional authority was duty bound to call for the records and examine the evidences, if any, produced by the parties before the subordinate authority and the legality and propriety of the orders passed and then on appreciation of those, an order could have been passed as admittedly some entries were made in the relevant registers which were being questioned by the respondent nos. 4 to 7 by filing revision. The case of the writ petitioner should not have been brushed aside simply for non-production of fresh documents at the revisional stage. Relevant evidences which were to be considered by the revisional authority were the materials if produced before the subordinate authority and not the fresh documents which were produced at the revisional stage as the revisional power is a supervisory jurisdiction provided under section 35 of the Act. Except in the given situation, as discussed above or in such other situation which would require such action, the Director of Consolidation would not be required to proceed from stage I to do everything afresh rather he would have to take a corrective measure and would be required to unsettle the decision taken by the subordinate authority only if that fails to stand the test of legality and propriety. Of course, if nothing is on record and orders were passed by the subordinate authority in arbitrary manner, the revisional authority may also choose to consider the documents produced by the parties even at revisional stage if such opportunity was not given to them on earlier occasion or for some valid reason they could not produce the same at the time of original proceeding. Had the records been called for and examined, the very fact, as to whether the respondent nos. Had the records been called for and examined, the very fact, as to whether the respondent nos. 4 to 7 themselves approached the consolidation authority under section 8A of the Act for partition of holding or not could have easily been examined. 19. Thus, in view of aforesaid fatal lacuna, the Issue is decided in favour of the appellant-writ petitioner and, in view of non-consideration of the aforesaid aspects, the order of the learned Single Judge as well as well as the impugned order as contained in Annexure 1 to the writ petition both are set aside. However, the matter is remitted back to the Director of Consolidation for taking fresh decision in accordance with law after calling for and examining the records of the proceeding before the subordinate authority and granting opportunity of hearing to both the parties. It is, however, clarified that if, even after examination of the records he comes to a conclusion that relevant materials were not considered by the subordinate authority in the proceeding concerned or if justice demands consideration of fresh evidence then, after recording reasons for the same, he would be at liberty to consider the same and pass a reasoned order after granting reasonable opportunity to all the parties concerned. 20. Accordingly, this appeal and the writ petition stand allowed. However, there would be no order as to costs. RAMESH KUMAR DATTA, J.:–I agree.