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1984 Supreme(Pat) 380

PATNA HIGH COURT
N.P.Singh and M.P.Varma JJ.
Shyam Bihari Upadhyay
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 3729 of 1984 ;
Decided On : NOVEMBER 9, 1984

Headnote:Bihar Consolidation of Holding & Prevention of Fragmentation Act, Secs. 10A & 35-director is vested with a very wide power under section 35 which can be exercised by him suo motu or on an application by any party-Such exercise of power is not a subsequent stage of Consolidation Proceedings-There is no "non obstante clause" in section 10A and this power of Director under section 35-The Director shall act within his limitation prescribed for exercise of such power. (Paras 7 to 9)

Judgment

N.P.SINGH, J.

1. The writ application has been filed on behalf of the petitioners for quashing different orders passed by the , consolidation authorities.

2. Registers of lands of the village in question were prepared in accordance with S.9 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 thereinafter to be referred to as the Act). The registers so prepared along with the statement of principles were published under S.10(1) of the Act. The plots in question were shown to be in possession of Mosst. Bhagjogna Mosst. Bhagjogna had died in the year 1972.

3. Before the Assistant Consolidation Officer objection was filed under sub-sec.(2) of S.10 of the Act by the petitioners. The objection of the petitioners was allowed by an order dated 13-1-1981. Thereafter, respondents 6 to 8, who had not filed any objection under S.10(2) of the Act filed objection before the Consolidation Officer under S.12(2) of the Act. By order dated 12-2-1983 that objection was allowed. The petitioners filed an appeal before the Deputy Director, Consolidation which was dismissed on 31-3-1983. Even the revision filed before the Director, Consolidation was dismissed on 3-3-1984.

4. On behalf of the petitioners it was submitted that respondents 6 to 8 having not filed any objection under S.10(2) of the Act could not have challenged any entry made in the map or register prepared under S.9 or the statement of principles prepared under S.9A of the Act in view of S.10A. S.10A is as follows: -

"No question in respect of any entry made in the map or registers prepared under S.9 or the statement of principles prepared under S.9A relating to the consolidation area, which might or ought to have been raised under S.10 but has not been raised, shall not be raised or heard at any subsequent stage of the consolidation proceeding."

On behalf of the petitioners it was urged that the Director, Consolidation should have held that as no objection was filed on behalf of respondents 6 to 8 under S.10(2) of the Act S.10A operated as a bar and respondent, Consolidation Officer could not have allowed the objection of respondents 6 to 8 by his order dated 12-2-1983,

5. The scope of S.10A has been I considered by a Bench of this Court in the case of Jagarnath Thakur V/s. State of Bihar, 1984 BBCJ 140 where it was pointed out that if a person does not file an objection under S.10(2) he cannot raise any objection in respect of the entry at any subsequent stage of consolidation proceeding because the bar of S.10-A operates in such cases. The question whether the bar of S.10-A also operates on the power of the Director, Consolidation under. S.35 of the Act, however, was left open as it did not arise for consideration in the facts and circumstances of that case.

6. Sec.10-A applies the bar to the "subsequent stage of consolidation proceedings", the object being that a person, who has not availed of the opportunity of filing an objection within the time prescribed, should not be allowed to raise any such objection, as it is likely to delay the different stages of the consolidation proceedings. S.10D, however, vests power in the Deputy Director of Consolidation if he is satisfied that the register of lands published under sub-sec.(1) or corrected under sub-secs.(3), (4), (5), (6) of S.10 a substantial number of raiyats could not avail of the opportunity to place their claim under sub-sec.(2) of S.10, to direct re-publication of the register of lands or statement of principles in the manner prescribed. If any such order is passed the persons concerned within 30 days of such re-publication, may file objection before the Assistant Consolidation Officer disputing the correctness and nature of entries in the register of land, notwithstanding the provisions of S.10-A.

7. On behalf of the respondents it was urged that S.10-A cannot be held to be bar on the power of the Director, Consolidation under S.35 of the Act, because S.35 vests supervisory power in the







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