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PATNA HIGH COURT
R.M.Prasad, J.
Vakil Sah
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 5087 of 1983 ;
Decided On : APRIL 1, 1996
CONSOLIDATION OF HOLDINGS - BAR ON RAISING OBJECTIONS - SECTION 10-A OF THE BIHAR CONSOLIDATION OF HOLDINGS AND PREVENTION OF FRAGMENTATION ACT, 1956 - SCOPE AND APPLICABILITY - POWER OF DIRECTOR OF CONSOLIDATION UNDER SECTION 35 OF THE ACT - WHETHER OVERRIDES THE BAR UNDER SECTION 10-A.
Fact of the Case:
In three separate writ petitions, the petitioners challenged the orders of the Director of Consolidation, Bihar, passed under Section 35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (the Act), which allowed objections to be raised despite the bar under Section 10-A of the Act. The petitioners claimed that the objections were time-barred and should not have been entertained by the Director.
Finding of the Court:
The Court held that the bar under Section 10-A of the Act operates even on the power of the Director of Consolidation under Section 35 of the Act. The Court reasoned that the legislature's intention in enacting Section 10-A was to attach finality to the publication of registers of lands and statement of principles and objectives thereon under Section 10(6) read with Section 10-A of the Act. The Court further held that the Director of Consolidation cannot assume the jurisdiction of the original authority as a fact-finding authority by appreciating facts de novo. The Director's power under Section 35 is limited to considering whether the legally admissible evidence was not considered by the authorities in recording a finding of fact or law, or whether there was any patent illegality or impropriety committed, or any procedural irregularity which goes to the root of the matter.
Issues: 1. Whether the bar under Section 10-A of the Act operates even on the power of the Director of Consolidation under Section 35 of the Act? 2. Whether the Director of Consolidation can assume the jurisdiction of the original authority as a fact-finding authority by appreciating facts de novo?
Ratio Decidendi: 1. The Court held that the bar under Section 10-A of the Act operates even on the power of the Director of Consolidation under Section 35 of the Act. The Court reasoned that the legislature's intention in enacting Section 10-A was to attach finality to the publication of registers of lands and statement of principles and objectives thereon under Section 10(6) read with Section 10-A of the Act. The Court further held that the Director of Consolidation cannot assume the jurisdiction of the original authority as a fact-finding authority by appreciating facts de novo. The Director's power under Section 35 is limited to considering whether the legally admissible evidence was not considered by the authorities in recording a finding of fact or law, or whether there was any patent illegality or impropriety committed, or any procedural irregularity which goes to the root of the matter. 2. The Court held that the Director of Consolidation cannot assume the jurisdiction of the original authority as a fact-finding authority by appreciating facts de novo. The Director's power under Section 35 is limited to considering whether the legally admissible evidence was not considered by the authorities in recording a finding of fact or law, or whether there was any patent illegality or impropriety committed, or any procedural irregularity which goes to the root of the matter.
Final Decision: The Court dismissed all three writ petitions, holding that the Director of Consolidation did not have the power to entertain objections that were barred under Section 10-A of the Act.
Radha Mohan Prasad, J.
1. -as in all the three writ applications the question involved 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 short, the relevant facts of the three writ applications are as follows :
(i) The grievance of the petitioners in the first writ application (C. W. J. C. No.5087 of 1983) relates to r. S. Plots No.205, 227, 243 and 265 measuring 2.97 acres of Khata No.19 of Village Paranpur, Police Station oinara, District Rohtas on account of their non-inclusion in the aggregate of the total land belonging to the petitioners and consequently allotting chak of lesser area to them under the provisions of the Bihar Consolidation of Holdings and Prevention of Fragmentation act, 1956 (hereinafter referred to as the Act ). The petitioners claimed to have acquired the said land in exchange through registered deed dated 23-3-1974 from respondents Nos.5 and 6 and thereafter they constructed wells in R. S. Plots No.205 and 243 and installed electric pump in the wells in r. S. Plot No.243 for irrigational purposes. It is also claimed by them that their names were mutated by the order of the Anchal Adhikari and are accordingly paying rent to the State of Bihar. According to the petitioners, the register of land in the aforesaid exchange was prepared in their names and draft was also published to which respondents No.5 and 6 never raised any objection and under Sec.10 of the Act it became final. However, the consolidation Officer without appreciating that respondents No.5 and 6 had never raised any objection, vide order dated 2-1-1978, contained in annexure 1, directed for necessary correction in the final publications made under Sec.10 of the Act. The petitioners being aggrieved filed appeal before the Deputy Director of Consolidation, rohtas, which was dismissed on 7-4-1978, vide order contained in annexure 2. Later, the petitioners filed a petition for review of the aforesaid order before the Deputy Director of consolidation, Rohtas, who referred it to the Director of Consolidation for consideration and the Deputy Director of Consolidation (Headquarters), Patna heard the parties in the purported exercise of the power under Sec.35 of the Act and rejected the said petition, vide his impugned order dated 5-10-1983. In the said order it was held that the raiyat was not justified in filing review-application before the Deputy director, but the Deputy Director after disposing of the matter was also not justified in making reference in relation to a particular case nor the law permitted him to do that. Though the deputy Director of Consolidation (Headquarters) held that there is no provision for making reference against the order which was once passed yet he in purported exercise of the power under Sec.35 of the Act entered into the merit of the claim and rejected the review-application by the impugned order.-
(ii) In the Second case (C. W. J. C. No.3925 of 1984), the grievance of the petitioners relates to C. S. Khata No.416, Plot No.3550, measuring 0.03 in village Jhewan, District Bhejpur which was recorded as Gairmazarua Malik. According to the petitioners, in the remark column, the name of their grand-father was recorded and since time immemorial their family has been coming in possession and exercising full right over the said land without any hindrance. In the recent revisional survey of 1971 the said land (new Plot No.4311) was recorded in the name one late Harihar Rai, who, according to the petitioners, had no concern with it at all. At the stage of proceeding under section 106 of the Bihar Tenancy Act, a notification under Sec.3 of the Act was published in respect of the village in question and thus, the proceedings under the Bihar Tenancy Act were dropped. Ultimately, register of lands was prepared under Sec.9 of the act. It is claimed by the petitioners that on 18-9-1978 their father filed objection under Sec.10 (2) of
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