Competency of the revisional authority and adherence to statutory provisions under the Bihar Consolidation of Holdings & Prevention of Fragmentation Act, 1956.

J.N.Bhatt, J.

1. In this writ petition under Articles 226 and 227 of the Constitution of India, the challenge is against the order of the revisional authority, dated 5.9.1988, recorded by the Deputy Director, Consolidation (Hqrs.), Patna, who is respondent No. 1,in Consolidation Revision No. 1928 of 1987, a copy whereof is placed as Annexure 3.

2. Learned Counsel for the parties are heard. Entire record is examined. The relevant provisions of the Bihar Consolidation of Holdings & Prevention of Fragmentation Act, 1956 ("Act of 1956") have been considered and examined for the purpose of appreciation of the submissions raised in this writ application under Article 226 of the Constitution of India.

3. Consolidation proceedings started at the instance of the co-sharers of the petitioners by filing a petition before the Consolidation Officer for cancelling the name of the petitioners entered in the R.S. Khatiyan and to enter their names with respect to 1.25 acres of land of khata No. 4 situated in village Majharia P.S. Karakat, District Rohtas, which is hereinafter referred to as the disputed land.

4. Upon consideration of the facts and circumstances, the first revenue authority allowed the application of the co-sharers of the petitioners and decided the matter against the petitioners.

5. Thereafter, the petitioners preferred an appeal under Sec. 10(6) of the Act of 1956. The appeal was allowed quashing the order of the Consolidation Officer and the matter was remanded. The Consolidation Officer, thereafter, decided the matter in Remand Case No. 42 of 1979-80 in favour of the petitioners against which respondent nos.3 and 4 filed an appeal being Appeal No. 98 of 1983-84. The petitioners, however, objected to the maintainability of the appeal which was rejected by the Deputy Director, Consolidation, Rohtas, Sasaram (respondent No. 2) in Appeal No. 98/83-84 by order dated 7.7.1987, against which the petitioner preferred Revision Case No. 1928 of 1987, under Sec. 35 of the Act of 1956, which was also rejected by the Deputy Director, Consolidation (Hqrs), Bihar, Patna.

6. The main contention which has been advanced is referable to the point of law. In that it has been contended on behalf of the petitioners that the order in appeal, which came to be heard by the Deputy Director, Consolidation, Rohtas (respondent No. 2), in Appeal No. 98 of 1983-84 against the petitioners, is affirmed by the concurrent and similar authority, namely, Deputy Director, Consolidation (Hqrs)(respondent No. 1), in Consolidation Revision No. 1928 of 1987 on 5.9.1988 and, therefore, it is illegal. This submission appears to be quite weighty and full of substance while examined in the light of the facts of the case and in the backdrop of the legal provision.

7. The provision of revision and reference has been made in Sec. 35 of the Act of 1956. It reads here as under:

35. Revision and reference.- The Director of Consolidation may on his own motion or on the application of any party or on reference being made by any subordinate authority, call for and examine the record of any case decided or proceedings taken by such authority for the purpose of satisfying himself as to the regularity of the proceeding; or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings, and may after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.

8. The very design and desideratum of the aforesaid provision would go to show that it empowers the Director of Consolidation to see that the statutory functionary, subordinate revenue courts, are not acting arbitrarily and illegally in exercise of the jurisdiction under the Act of 1956. Once it is successfully shown that there is illegal exercise of jurisdiction or impugned decision has resulted in the manifested perversity or illegality, it has to be put in appropriate legal shape.

9. Sec. 10 of the Act of 19