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PATNA HIGH COURT
R.M.Prasad, J.
Shambhu Nath Pandey
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 2510 of 1989 ;
Decided On : DECEMBER 22, 1995
CONSOLIDATION OF HOLDINGS - REVISION OF SCHEME - JURISDICTION - DEPUTY DIRECTOR AND DIRECTOR OF CONSOLIDATION - NO POWER TO REOPEN DECIDED DISPUTES - SEC. 10-B OF THE ACT BARS RE-OPENING OF DISPUTES DECIDED UNDER SEC. 10 OF THE ACT.
Fact of the Case:
Petitioners filed objections under Sec.10 (2) of the Act before the Consolidation Officer claiming ownership of the disputed property. The Consolidation Officer disposed of the objections in favor of the petitioners and prepared a draft scheme. No objection was raised against the draft scheme by any person, including the State of Bihar. However, the Deputy Director of Consolidation and the Director of Consolidation, in exercise of their powers under Sec. 130 and Sec. 35 of the Act, respectively, re-examined the findings of the Consolidation Officer and rejected the claim of the petitioners.
Finding of the Court:
The court held that the Deputy Director and the Director of Consolidation had no jurisdiction to reopen the disputes which had already been decided by the Consolidation Officer under Sec. 10 of the Act. The court further held that Sec. 10-B of the Act completely bars the subordinate authorities from re-opening the disputes or entries against which no objection had been filed at the stage of Sec. 10 (2) or under Secs. 10-C and D of the Act.
Issues: Whether the Deputy Director and the Director of Consolidation had the jurisdiction to reopen the disputes which had already been decided by the Consolidation Officer under Sec. 10 of the Act.
Ratio Decidendi: The court relied on the provisions of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, and the rules framed thereunder to hold that the Deputy Director and the Director of Consolidation had no jurisdiction to reopen the disputes which had already been decided by the Consolidation Officer under Sec. 10 of the Act. The court also relied on the decision of the Supreme Court in Ram Dular V/s. Dy. Director of Consolidation, Jaunpur and Ors., JT 1994 (3) S. C. 341, to hold that the Director of Consolidation under Sec. 35 of the Act could not assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of the facts de novo.
Final Decision: The court allowed the writ petitions and quashed the impugned orders of the Deputy Director of Consolidation and the Director of Consolidation.
R. M. Prasad, J.
1. As. in both the writ applications, the order impugned is common, with the consent of the parties they have been heard together and are being disposed of by this common judgment/order.
2. In both the writ applications the petitioners pray for quashing of the order dated 9.11.1983, passed by the joint Director, Consolidation (Muf-fail),patna in exercise of the powers under Sec.35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act (in short, the Act 8) affirmingr the order of the Deputy director of Consolidation and rejecting the claim of the petitioners over the disputed property.
3. The dispute in the first case relates to 4 decimals of land of Plot no.422 and in the second case in relation to 5 decimals of land of Plots No.418 and 419 of New Survey Khata No.263 situated in Mouza Dharampura. Thana Arrah Mufassil, District Bhojpur.
4. The case of the petitioners in the two writ applications is that after initiation of consolidation proceeding in the area when they learnt about the entry made in the revisional survey as unabbad Bihar Sarkar, they filed objections under Sec.10 (2) of the Act before the Consolidation Officer. The petitioner of the second case had also instituted a case bearing No.2454/71 under Sec.106 of the Bihar Tenancy act in respect of the aforementioned entry made in regard to Plots No.418 and 419 in which the Land Assessment officer, by his order dated 28.5.1973 passed a decree in his favour and consequently, he also got the amended new Khatiyan. . A copy of the order passed by the Assistant Settlement Officer in Cases No.3454 of 1971 has been annexed as Annexure 1 to the second writ case. The Consolidation officer disposed of the objections in favour of the petitioners of the two writ applications, vide order dated 16.4.1979 and 21.12.1975, respectively and, accordingly draft scheme was prepared.
5. Undisputedly, no objection was ever raised in regard to the said draft scheme by any person, including the state of Bihar whose right and interest, if any, was likely to be prejudiced or affected. Thereafter, under Sec.130 of the Act, the said draft scheme was submitted to the Director of Consolidation for confirmation. However, vide order dated 30.11.1981 (Annexure 3), the deputy Director of Consolidation (respondent No.4) at that stage re-examined the findings of the. Consolidation Officer and rejected the claim of the petitioners. The petitioners filed revision Cases No.1000/83 and 999/83, respectively against the aforementioned order of the Deputy Director of Consolidation under Sec.35 of the Act before the Director, Consolidation, bihar, Patna, who affirmed the order of the Deputy Director of Consolidation by the impugned common order passed on 9.11.1?"
6. Undisputedly, no appeal or revision was preferred against the aforementioned order of the Consolidation Officer under the Act nor any objection under Sec.12 of the act was ever raised.
7. It is contended by Mr. Dhrub narayan, learned counsel appearing for the petitioners in both the cases that the order of the Deputy Director of consolidation as well as the impugned order of the Joint Director affirming the said order passed by the Deputy director of Consolidation are wholly without jurisdiction inasmuch as it was not open for the Deputy Director or the Director of Consolidation to reopen the questions of fact decided by the Consolidation Officer in purported exercise of the powers under Section 130 and/or Sec.35 of the Act under which they were obliged to confirm the draft consolidation scheme if no objection was filed within the time specified in Sec.12 of the Act.
8. Learned counsel for the State has not been able to point out any other provision in the Act which vests power in the Deputy Director to annul the final decision under Sec.10 and/or under Sec.12 of the Act. suo moto.
9. After the initiation of the scheme, the consolidation authority has been vested with the powers under sections 9 and 9-A o
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