The judiciary's role in removing injustice and the supervisory power under Sec.35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956.

S. B. Sanyal, J.

1. "it must be grasped that judiciary is respected not on account of its power to legalize in justice on technical grounds but because it is capable to remove injustice and is expected to do so". Thus, observed Thakkar, J. in the case of Collector, Land Acquisition, Anantng V/s. Katiji, AIR 1987 supreme Court 1353.

2. In this case the petitioners have knocked the door of Civil court, Revenue Court as also Consolidation Court and the learned counsel submits that the petitioner has been denied justice on some pretext or the other. The petitioners want Annexure-1, the order of the Consolidation Officer, and annexure-2, the order of the Joint Director, should be quashed and the land which they have purchased by registered document on 8-7-1963 be held to be in their possession with perfect title and not of State of Bihar in whose name the land has come to be recorded in the recent survey.

3. An area of 1.65 acres comprising plots No.113, 115 and 154 appertaining to C. S. Khata No.9 and R. S. Khata No.51 with R. S. Plots No.151, 142 and 159, was purchased by registered deed on 8-7-1963 from the heirs of the recorded tenant and by such purchase the names of the petitioners were mutated in the Sherishta office and they have been granted rent receipt therefore. Unfortunately, during the course of recent survey the petitioners could not appear but subsequently initiated a proceeding under Sec.109 of the Bihar Tenancy act which section however, being repealed the proceeding had to be dropped. The petitioners thereafter instituted a suit against the State Government after service of notice under Sec.80 being Title Suit No.132 of 1975 but it abated because of the Consolidation proceeding. The petitioners, however, had filed an application on 3-3 1975 before the Consolidation Officer under Sec.10 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 which was registered as Case No.8/649 of 19 75 76. The Consolidation Officer noticed that the title suit between the parties is pending and the prayer that he should held up the proceeding is impermissible. Instead of going into the merit of the case the Consolidation Officer held that as per the Government direction his decision cannot await the decision of the civil court as such the entry in the name of the State Government should be maintained. It is true that the petitioners did not prefer an appeal but seem to have pursued the civil suit and when civil suit ultimately abated they filed an application under Section 35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956.

4. The Joint Director noticed the registered sale deed. He also noticed the documents filed by the petitioners, namely, Register-II, the old Khatian, which would be apparent from paragraph 4 of his order. He, however, held that since no appeal was preferred and the scheme has been confirmed in view of the provisions of Sec.10-A, the petitioners are not entitled to any relief.

5. Learned counsel argued that everything said and done how can the land vest in the State of Bihar, It is not the case of the State that the land belonged to the ex-landlord and on vesting of the estate in the State of Bihar, it came in exclusive possession of the State. This argument, if it would have been put forward, would have been belied by the old survey records since it was in possession of the vendors of the petitioners the raiyats from whom the petitioners are said to have purchased and are in possession. It is not the case of the State that the recorded tenant having died without leaving any heir the property vested in the State by way of escheat. No court really decided the merit of the case and each Court defeated the claim of the petitioners on some technical ground. Thus injustice was legalised.

6. I would, in this connection, draw the attention of the Joint Director to the decision to the case of S. B. Upadhayay V/s. The State of Bihar, 1985 bihar Bar Counci