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IN THE HIGH COURT OF JUDICATURE AT PATNA
R.M. DOSHIT, JAYANANDAN SINGH, ASHWANI KUMAR SINGH, JJ.
Nand Kumar Thakur – Respondent/Appellant
Versus
The State of Bihar & Ors. – Petitioners/Respondents
Letters Patent Appeal No.672 of 2009 In Civil Writ Jurisdiction Case No. 4129 of 1990
Decided on: 8-09-2014
FULL BENCH REFERENCE - SECTION 103A(3) OF BIHAR TENANCY ACT - REVISION OF OWN ORDER - POWER OF REVENUE OFFICER - REVIEW - INHERENT POWER - AMENDMENT OF SECTION 103A(3) - EFFECT - FULL BENCH JUDGMENT IN RAM KISHUN MANDAL CASE - RECONSIDERATION.
Fact of the Case:
The dispute ultimately reached the Settlement Officer, Darbhanga in Revision Application No. 42 of 1985 under Section 103A (3) of the Bihar Tenancy Act, 1985 (hereinafter referred to as “the Act”) against the order of the Assistant Settlement Officer. The Settlement Officer vide his order dated 11th April, 1986 allowed the aforesaid revision application and directed that the tenancy right of revisional survey plot no. 1687 be opened in the name of the respondents 2nd set (hereinafter referred to as “the respondents”). The appellant filed a review petition before the Settlement Officer seeking review of the revisional order dated 11th April, 1986 which was allowed on 16th October, 1987. The respondents filed an application under Rule 2 framed under the Act before the Divisional Commissioner, Darbhanga challenging the aforesaid order dated 16th October, 1987 passed by the Settlement Officer, raising the ground that the Settlement Officer had got no jurisdiction to review his own order and hence, the order allowing the review application was bad in law. The said petition was dismissed by the Divisional Commissioner, Darbhanga vide order dated 20th June, 1990. The said order dated 20th June, 1990 passed by the Divisional Commissioner, Darbhanga and the order dated 16th October, 1987 passed by the Settlement Officer, Darbhanga were assailed before this Court by filing a writ petition being C.W.J.C. No. 4129 of 1990 under Article 226 of the Constitution of India by the respondents. The learned Single Judge allowed the said writ petition on 15th December, 2008 and quashed the impugned orders dated 16th October, 1987 and 20th June, 1990 relying upon a Full Bench judgment of this Court in the matter of Ram Kishun Mandal & Anr. Vs. The State of Bihar reported in 1987 PLJR 291 in which it has been held that the Revenue Officer acting under Section 103A (3) of the Act has no inherent power to review his own decision.
Finding of the Court:
The Full Bench of the Patna High Court in the matter of Ram Kishun Mandal (supra) rightly relied on the authoritative pronouncement of the Constitution Bench of the Hon’ble Supreme Court in the matter of State of Bihar and another v. Ram Dayal Missir (supra) wherein it has been held that the Settlement Officers or the Assistant Settlement Officers have no power of review during the course of preparation of record-of-rights under Section 103A of the Act. It has correctly laid down the law that the Revenue Officer under Section 103A (3) of the Act has no inherent power to review his own decision till the final publication of the record-of-rights. In addition, I further hold that the Revenue Officer has not also been expressly or by necessary implication vested with the power of review under the amended provision of Section 103A(3) of the Act.
Issues: Whether the Revenue Officer specially empowered by the State Government can under Section 103A(3) of the Act exercise inherent power to review his own decision till the final publication of the record-of-rights?
Ratio Decidendi: The power that has been conferred upon the Revenue Officer under the amended Sub-section (3) of Section 103A of the Act is specifically a power of revision. The powers of review are not inherent powers and are statutory powers as has rightly been considered and laid down in the case of Ramdayal Missir by the Supreme Court. The powers of review come with their own limitations as provided in Order XLVII of the Code of Civil Procedure and in contradistinction to the same, the powers of revision, unless hedged by the rules themselves, are in the nature of supervisory powers to be exercised by the superior authority and the same are in the nature of appellate powers.
Final Decision: The Full Bench of this Court in the matter of Ram Kishun Mandal (supra) rightly relied on the authoritative pronouncement of the Constitution Bench of the Hon’ble Supreme Court in the matter of State of Bihar and another v. Ram Dayal Missir (supra) wherein it has been held that the Settlement Officers or the Assistant Settlement Officers have no power of review during the course of preparation of record-of-rights under Section 103A of the Act. It has correctly laid down the law that the Revenue Officer under Section 103A (3) of the Act has no inherent power to review his own decision till the final publication of the record-of-rights. In addition, I further hold that the Revenue Officer has not also been expressly or by necessary implication vested with the power of review under the amended provision of Section 103A(3) of the Act.
ASHWANI KUMAR SINGH, J.
This Appeal under Clause 10 of the Letters Patent has been preferred by the respondent no. 5 Nand Kumar Thakur (hereinafter referred to as “the appellant”) against the order dated 15th December 2008 passed by the learned single Judge in C.W.J.C. No. 4129 of 1990.
2. It is not necessary to refer to the facts of the case in great detail. Suffice it to say that with regard to tenancy rights in respect of Revisional Survey Plot No. 1687, Thana no. 497 situated at village-Bhuskaul, P.S. & Distt.-Darbhanga, the dispute ultimately reached the Settlement Officer, Darbhanga in Revision Application No. 42 of 1985 under Section 103A (3) of the Bihar Tenancy Act, 1985 (hereinafter referred to as “the Act”) against the order of the Assistant Settlement Officer. The Settlement Officer vide his order dated 11th April, 1986 allowed the aforesaid revision application and directed that the tenancy right of revisional survey plot no. 1687 be opened in the name of the respondents 2nd set (hereinafter referred to as “the respondents”). The appellant filed a review petition before the Settlement Officer seeking review of the revisional order dated 11th April, 1986 which was allowed on 16th October, 1987.
3. The respondents filed an application under Rule 2 framed under the Act before the Divisional Commissioner, Darbhanga challenging the aforesaid order dated 16th October, 1987 passed by the Settlement Officer, raising the ground that the Settlement Officer had got no jurisdiction to review his own order and hence, the order allowing the review application was bad in law. The said petition was dismissed by the Divisional Commissioner, Darbhanga vide order dated 20th June, 1990. The said order dated 20th June, 1990 passed by the Divisional Commissioner, Darbhanga and the order dated 16th October, 1987 passed by the Settlement Officer, Darbhanga were assailed before this Court by filing a writ petition being C.W.J.C. No. 4129 of 1990 under Article 226 of the Constitution of India by the respondents. The learned Single Judge allowed the said writ petition on 15th December, 2008 and quashed the impugned orders dated 16th October, 1987 and 20th June, 1990 relying upon a Full Bench judgment of this Court in the matter of Ram Kishun Mandal & Anr. Vs. The State of Bihar reported in 1987 PLJR 291 in which it has been held that the Revenue Officer acting under Section 103A (3) of the Act has no inherent power to review his own decision.
4. The appellant challenged the aforesaid order dated 15th December, 2008 passed in C.W.J.C. No. 4129 of 1990 by filing the present Letters Patent Appeal.
5. This Appeal came up for hearing before the Division Bench. The Division Bench vide order dated 3rd December, 2010 referred the matter to the Full Bench pursuant to which the appeal has come up before us for consideration.
6. For the sake of clarity and convenience, I would like to quote the reference made by the Division Bench in its order dated 3rd December, 2010 which is as under:-
“We have heard the parties at length and having regard to the issue in hand, we are of the considered view that the present case is required to be placed before a Full Bench. Our reasons for referring the matter to the Full Bench is as follows:-
Section 103A(3)of Bihar Tenancy Act as it was existing prior to the amendment made in the year 1967 read as follows:-
“When a draft record-of-rights has been prepared, the Revenue Officer shall publish the draft in the prescribed manner and for the prescribed period, and shall receive and consider any objections which may be made to any entry therein, or to any omission therefrom, during the period of publication”.
Considering the aforementioned provisions a Division Bench of this Court in the case of Ramdayal Missir and Ors vs. The State of Bihar & Ors, reported in AIR 1958 Patna 4, had held that there was no power of review as against an order passed under Section 103A of the Act.
Let, it be noted that the said judgment was mad
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