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1983 Supreme(Pat) 165
PATNA HIGH COURT
Hari Lal Agrawal, J.
Chandeshwar Singh And Others Etc.
Versus
Dahu Mahto And Others, Etc.
Civil Writ Jurisdiction Case No. 484 of 1973 ;
Decided On : MAY 18, 1983
Headnote:Evidence Act Sec. 115 - Bihari Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, Secs. 2(b), 16(3) & 31(2) - Land Reforms Deputy Collector and Sub-Divisional officer are Collector under the Ceiling Act - Proceeding pending before one authority heard by another authority without any order of transfer under section 31(2) of the Ceiling Act - No objection raised and decision obtained - The objection as to jurisdiction waived by a party where there is no inherent lack of jurisdiction - The principle that there can be no waiver of statute is not attracted. (Paras 7, 15, 16, 24 & 25)
(A.I.R. 1973 Pat 396 (D.B.) over-ruled)
Evidence Act, Sec. 115 - Estoppel-Party having taken a chance in the proceeding before one authority of concurrent jurisdiction and having lost can not turn round and challenge the order on the ground of lack of jurisdiction, (Para 10)
(Per P.S. SARAY, J.) - Before the party can challenge the jurisdiction on the ground of irregular exercise, question of prejudice has to be looked into. (Para 20)
Contract Act, Sec. 28 - Jurisdiction-Inherent lack of jurisdiction and irregular exercise of jurisdiction - Distinction brought out - Competency of the court to try an action goes to the root of the matter and when such competence is not found it has no jurisdiction at all to try the case - Objection based on irregular exercise of jurisdiction in a matter which parties may waive - Two or more competent court having power to entertain suits, parties can contract to vest jurisdiction In one such court to try their dispute - Such contract not hit by the provision. (Paras 15)
(Per P.S. Sabay, J.) - Constitution of India, Arts 226 & 227 - Writ of certiorari - High Court will not interfere with the orders of the authority only on technical ground when the matter is not and can not be argued on merits. (paras 21)
HARI LAL AGRAWAL, J.
1. Both these cases have been heard together as the points of law involved in them are identical. The question of law that has been referred to the Full Bench is the correctness of a Bench decision of this Court in the case of Ram Janam Gareri V/s. Narbadeshwar Singh (AIR 1973 Pat 396), wherein it was held that there could be no waiver with regard to the question of jurisdiction.
2. I shall first take up this case. This case was placed before a Division Bench, of which I was a Member, on 23-7-1976 when a doubt was expressed regarding the correctness of the Bench decision in Ram Janam Gareris case (AIR 1973 Pat 396) (supra) and the matter was ultimately referred to the Full Bench. Similar doubt was expressed in the next case on 4-9-1979 and thus both the cases were placed before us. Three other cases were also listed before this Bench but ultimately they were sent back to Division Bench at the request of learned counsel for both the parties appearing in those cases.
3. Both the cases are directed against the orders passed by the authorities under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (for short the Act) in a matter under Sec.16(3) of the Act. On 11-5-1966 the petitioners purchased 22 decimals of land from Sadhu Saran Singh and others appertaining to plot Nos. 774 and 775 under Khata No. 34 of Tauzi No. 1352 in village Basiwan, which in course of the consolidation proceedings was given Chak Number 581, for Rs. 2,000/-. It may be mentioned that in the sale deed in question the name of respondent No. 1 was mentioned in the northern boundary. On 30-7-1976 respondent No. 1 filed an application under Sec.16(3) of the Act before the Sub-divisional Magistrate, Biharshariff for an order for transfer of the land to him on the ground that he was an adjacent raiyat of the said chak towards the north by virtue of his Chak No. 564. Two rejoinders (show cause) were filed by the petitioners; one on 8-10-1966 in which they pleaded that the nature of the land was not agricultural and, therefore, the application for pre-emption was not maintainable. In the second show cause petition dated 29-8-1968 they raised two further pleas, namely, (1) that the Chaks in question were intervened by a lane and, therefore, the plea of adjacency was irrelevant and meaningless for the purpose of the Act and (2) in the sale deed in question a wrong mention of the name of respondent No. 1 was wrongly shown in the boundary.
4. It is proper to notice some of the provisions which give rise to the questions involved in these cases, at this very stage. Sec.16(3) requires an application to be made "before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the sale deed." The expression "Collector" has been defined in clause (b) of Sec. 2 which reads as follows :
" Collector includes an Additional Collector or any other 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."
The State Government in the Revenue Department issued a notification dated 20-5-1967 by which the Land Reforms Deputy Collectors were empowered to discharge the functions of the Collector under sub-section (3) of Sec.16 of the Act within their respective jurisdictions. In his order dated 23-9-1967 the Sub-divisional Officer has noticed the said notification and transferred the case to the Land Reforms Deputy Collector for disposal. Sec.31 contains the provisions for transfer and withdrawal of the cases from one officer to another exercising the powers of a Collector under this Act. Sub-section (2) of this section reads as follows :
"(2) The Collector of the district may, at any time :-
(a) transfer an application or proceeding pending before him to any officer exercising the powers of Collector under this Act, or withdraw any such application or proceed
