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PATNA HIGH COURT
S.S.Sandhawalia, Lalit Mohan Sharma and S.Shamsul Hasan JJ.
Ram Kishun Mandal And Etc.
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 170 of 1986 ;
Decided On : JANUARY 5, 1987
BIHAR TENANCY ACT - Appeal against order under S.103A(1) - Maintainability - Revision by Revenue Officer under S.103A(3) - Inherent power - Supervisory powers of Commissioner under R.2 of Bihar Tenancy Rules.
Fact of the Case:
In two connected writ petitions, the issue arose whether an appeal against an order under S.103A(1) of the Bihar Tenancy Act, 1885 (the Act) was maintainable despite the deletion of Sub-Sec. (4) thereof by the amending Act 7 of 1969. The petitioners contended that the deletion of Sub-Sec. (4) had taken away the right of appeal, while the respondents argued that the right of appeal still existed under S.104-G of the Act and by virtue of the continuance of R.63-A of the Bihar Tenancy Rules (the Rules). The issue also arose whether a Revenue Officer specially empowered by the State Government under S.103A(3) of the Act had an inherent power to review his own decision till the final publication of the record of rights.
Finding of the Court:
The Court held that: 1. An appeal against an order under S.103A(1) of the Act was not maintainable in view of the deletion of Sub-Sec. (4) thereof by the amending Act 7 of 1969. 2. An appeal against an order under S.103A(1) of the Act was not envisaged under S.104-G of the Act. 3. The Revenue Officer acting under S.103A(3) of the Act had no inherent power to review his own decision till the final publication of the record of rights.
Issues: 1. Whether an appeal against an order under S.103A(1) of the Bihar Tenancy Act, 1885 is still maintainable despite the deletion of Sub-Sec. (4) thereof by the amending Act 7 of 1969 because of the continuance of S.63A(b) and (c) of the Bihar Tenancy Rules ? 2.Whether an appeal against an order under S.103A(1) of the Bihar Tenancy Act is equally envisaged by S.104-G of the said Act ? 3.Whether the revenue officer specially empowered by the State Government can, under S.103-A(3) of the Bihar Tenancy Act, exercise an inherent power to review his own decision till the final publication of the record of rights ?
Ratio Decidendi: 1. The right of appeal against an order under S.103A(1) of the Act was conferred by the insertion of Sub-Sec. (4) therein and equally taken away by its subsequent deletion therefrom. Therefore, if the very fountainhead of the right of appeal is obliterated from the Section, it cannot possibly survive by the mere continuance of a procedural provision in subordinate legislation which might have inadvertently missed amendment. 2. The language of S.104-G of the Act clearly indicated that it envisaged appeals only against orders passed by a Revenue Officer on any objection made under S.104-B, Sub-Sec. (3) or S.104-E. Sec.104-G thus does not even remotely make any mention of S.103 or any appeal against orders passed in any one of its Sub-Sections. 3. The Revenue Officer acting under S.103A(3) of the Act has no inherent power to review his own decision till the final publication of the record of rights.
Final Decision: The Court allowed the writ petitions, quashed the impugned orders, and held that the Commissioner had no appellate power and the supervisory authority conferred on him under R.2 of the Bihar Tenancy Rules was to be exercised sparingly and only in cases where he came to the conclusion that the error in the order impugned before him was grave resulting in serious injustice.
S.S.SANDHAWALIA, J.
1. The three significant issues arising for adjudication by the Full Bench on a reference in this set of two connected civil writ jurisdiction cases may well be succinctly formulated in the terms following :-
1. Whether an appeal against an order under S.103A(1) of the Bihar Tenancy Act, 1885 is still maintainable despite the deletion of Sub-Sec. (4) thereof by the amending Act 7 of 1969 because of the continuance of S.63A(b) and (c) of the Bihar Tenancy Rules ?
2.Whether an appeal against an order under S.103A(1) of the Bihar Tenancy Act is equally envisaged by S.104-G of the said Act ?
3.Whether the revenue officer specially empowered by the State Government can, under S.103-A(3) of the Bihar Tenancy Act, exercise an inherent power to review his own decision till the final publication of the record of rights ?
2. The matrix of facts necessary for the decision of the aforesaid pristinely legal questions may be noticed with relative brevity from CWJC 170 of 1986 (Ram Kishun Mandal V/s. The State of Bihar and others). The lis therein arises from a number of khatas concerning various parties. The names of respondents 5 to 12 were recorded in the record of rights during the recent survey operation which led the petitioner to file an objection under S.103-A(1) of the Bihar Tenancy Act, 1885 (hereinafter referred to as the Act) before the Assistant Settlement Officer who rejected the same. Aggrieved thereby, the petitioner preferred a survey revision before the Court of the Survey and Settlement Officer, Darbhanga, which was later allowed by a common order dt. 26th June, 1978 in favour of the petitioner with a direction that a khata of concerned lands be prepared as per the claim of the petitioner. The respondents, however, filed ten appeals before the learned Commissioner, Darbhanga Division, against the said order of the Survey and Settlement Officer, dt. 26th June, 1978. Thereon the learned Commissioner (vide his order, Annex.-2) held that by virtue of the deletion of Sub-Sec. (4) of S.103-A(1) of the Act by amending Act 7 of 1969 no appeal now lay against the order under S.103-A(1). He also noticed that an anomaly had been created by the continuance of sub-rules (b) and (c) of R.63-A of the Bihar Tenancy Rules (hereinafter called the Rules), and a reference has been made to the Government to delete that portion of the rule. However, despite the non-maintainability of the appeal, he made the following observations :-
"In the circumstances no appeal can lie before the present court. However, I feet that as the case is made out by the learned lawyer, some points are worth considering. The Settlement Officer can entertain such petition u/s. 103A(3) of the Bihar Tenancy Act as revision. The party may go to the Settlement Officer in revision accordingly."
Armed with the aforesaid observations, respondents 5 to 12 then filed a petition before the Settlement Officer, Darbhanga. On behalf of the petitioner strenuous objection was raised that despite the observation of the learned Commissioner no further review or second revision of an order under S.103 A(1) was maintainable. Vide Annex.-3, the learned Settlement Officer rejected the objection and directed the revision to proceed.
3. The petitioner then preferred the present petition invoking the constitutional jurisdiction of the Court that the Settlement Officer could. not revise his order a second time and there was no power of review granted by the Statute. This petition originally came up before my learned Brother, S. Shamsul Hasan, J. before whom firm reliance was placed on Devendra Pd. Gupta V/s. State of Bihar, 1978 BLJR 87 : (AIR 1978 Pat 166) and State of Bihar V/s. Ram Dayal Missir, 1962 BLJR 385 (SC). However, expressing some doubt about the correctness of the view taken therein he referred the matter to a Division Bench which, in turn, has made the present reference to a larger Bench. In the connected case CWJC 1583 of 1981 (Chandra Kant Yadav and
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