Patna High Court
Nand Kishore Singh And Ors. Etc. vs The State Of Bihar And Ors. on 16 April, 1998
Equivalent citations: 1998(3)BLJR1719
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
JUDGMENT S.J. Mukhopadhaya, J.
1. Alt these cases relates to consolidation proceedings initiated in two village, "Dighi Kalan" and "Dighi Khurd" within Hajipur Sadar P.S. in the district of Vaishali. In C.W.J.C. No. 995/87, this Court while admitting the writ petition on 3-4-87 stayed the operation of consolidation proceeding in the area in question. In view of the aforesaid interim order, certain orders were passed in different consolidation cases which were already pending before the authorities, giving rise to the filing of the other writ petitions. For the said reason all cases were heard together and are being disposed of by this common judgment.
C.W.J.C. No. 995/87.
2. The petitioners, who are resident of village Dighi Kalan and Dighi Khurd within the district of Vaishali challenged the order dated 3-3-87 passed by Joint Director of Consolidation (Muzaffarpur) Patna in Revision case No. 3137/86 whereby and where under the stay earlier granted relating to operation of consolidation proceeding with respect to village "Dighi Kalan" (Thana No. 105) and "Dighi Khurd" (Thana No. 156) was vacated. Further prayer has been made to direct the respondents to exclude the aforesaid two village from the operation of consolidation proceeding till the pendency of the aforesaid revision-application.
3. The questions involved in these writ petitions are (a) whether operation of consolidation proceeding can start and proceed in two villages namely. Dighi Kalan and Dighi Khurd in the district of Vaishali or not they being situated within the local limits of Patna Regional Development Authority (P.R.D.A. for short) and (b) whether operation of consolidation proceeding can be applicable to an area which falls under Regional Development Authority/Urban Area ?
4. The case of the petitioners is that with respect to the village in question, operation of consolidation proceeding started when notification under Section 3 of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956(hereinafter referred to as the Act) was issued on 26-11-70, whereinafter one of the petitioners filed information petition on 6-8-83 (or knowing the position. The consolidation officer, Hajipur informed that the register of land was prepared and published between 1-10-73 and 1-11-73 but subsequently, by letter No. 1746 dated 13/24-6-81 the Director of Consolidation stayed the consolidation operation for one year which was extended for six months by another memo No. 2638 dated 10-12-82. The village aforesaid, namely, Dighi Kalan and Dighi Khurd had already been urbanised with urban look containing various projects and officer. The villages were notified for Urban Development Scheme by State Government Notification dated 9-1-78 (Annexure-2) extending the limits of P.R.D.A. and the two village in question along with others were brought under its purview.
It was also stated that from perusal of Map of the village, it is apparent that entire area of the village in question having become part of Hajipur town cannot be subject-matter of consolidation as it includes important projects, education Institutions and Basti which are enough to exclude these two villages from the operation of consolidation proceeding. There is one consolidation officer posted at Hajipur in the village Dighi Kalan and the consolidation officer, Deshri and Bidupur come from a distance of 25 and 15 Kms. as incharge of the other village Dighi Khurd.
The petitioners approached the learned consolidation officer of the village in question with prayer to exclude the village from the consolidation operation, who replied that only records of right and interest will be corrected.
5. According to the Counsel for the petitioners, publication of R.S. Khatian having took place on 11-6-69, the question of further survey by consolidation authorities does not arise. The village in question having already been urbanised with a urban look and the value of the land on road side having gone high, such question of consolidation operation does not arise. The Counsel also placed reliance on paras 10 and 11 of the writ petition to show that a number of construction of different buildings have been made for Microwave Tower, Staff quarter, Training College, School, Police line, different factories etc. It was further submitted that P.R.D.A. having extended its local limits over the village in question, both the Villages have acquired the shape of a town and hence there is absolutely no question of consolidation of lands.
The Counsel placed reliance on order passed by Joint Director of Consolidation in Revision Case No. 3137/86 under Section 35 of the Act in which on 29-10-86 a report was called for, whereinafter the consolidation operation in the village were stayed. The stay was extended till 28-2-87 but subsequently without waiting for report, the stay was vacated on 6-4-87. Submission was made that the aforesaid vacation of stay without any notice and opportunity to the petitioners is patently illegal and arbitrary being in gross contravention of principles of natural justice.
6. The submission aforesaid was supported by the Counsel for the petitioners, who appeared for petitioners of C.W.J.C. No. 362/88, who also relied on Section 17 of P.R.D.A. Act, as well as, a decision of this Court reported in AIR 1981 Patna 236.
C.W.J.C. No. 976/887. In this case, the petitioners have challenged the orders passed by consolidation officer dated 29-12-86 in consolidation case No. 1655/86; appellate order dated 10-9-87 passed in Appeal No. 413/87 and revisional order dated 9-11-87 passed in Revision case No. 2662/87.
8. The dispute in this case relates to land measuring 0.08 decimals of plot No. 1695 appertaining to R.S. Khata No. 612 situated in village Dighi Kalan Anchal Hajipur in the district of Vaishali.
9. According to the petitioners, father of petitioner No. 1, namely, Bunni Lal Rai got the land from his brother and was in its exclusive possession. In R.S. Khatian published under Section 103-A of the B.T. Act on 11-6-69. it was shown in their name/in the same of father Bunni Lal Rai and there being no objection, it was presumed to be correct under Section 103-B(3) of the B.T Act. After imitation of consolidation proceeding, draft statement was published under Section 10(1) of the Act showing name of Bunni Lal Rai and objections were invited from 10-1-75 to 20-2-75. No objection was preferred by any person and the said notification under Section 10(1) of the Act become final.
The village Dighi Kalan was brought within the jurisdiction of P.R.D.A. on 9-1-78 and after about 11 years of publication of notification under Section 10(1) of the Act, a petition was filed by respondent Nos. 5, 6 and 7 under Section 10(2) of the Act for recording their names with respect to the land in dispute. The case was registered as Consolidation Case No. 1655/86 and the respondents claimed that the name of their father should be included which was wrongly left out. The Consolidation Officer thereafter allowed the said application by impugned order dated 29-12-86 merely on the basis of a report submitted by Amin and ordered to enter names of respondent Nos. 5 to 7 showing half share in their favour. The Appeal No. 413/87 thereafter preferred by petitioners, was rejected by impugned order dated 10-9-87. The appellate authority did not choose to decide the case on merit but dismissed the same on the basis of interim order dated 3-4-87 passed in C.W.J.C. No. 995/87 whereby this-Court restrained the consolidation authorities to proceed with respect to the land of village in question. The Revision Case No. 2661/87 was also dismissed on 9-11-87 because of the aforesaid interim order of this Court passed in C.W.J.C. No. 995/87.
10. According to the Counsel for the petitioner, no objection under Section 10(2) of the Act having preferred within 45 days from the date of draft publication under Section 10(1) of the Act, such petition after 11 years was not maintainable being time barred and being barred under Section 10-A of the Act. The order of the consolidation officer dated 29-12-86 was without jurisdiction. Reliance was placed on decisions of this Court reported in AIR 1985 Patna 275 and 1996(2) B.L.J.R. 1591.
It was further submitted that under Rule 13 of the Consolidation Rules though a clear 15 days time should have been allowed in the notice but in the present case, merely four days time was granted while notice was issued on 24-12-86 and final order was passed on 29-12-86.
The Counsel for the petitioners also supported the argument relating to operation of consolidation proceeding in the village in question as advanced by the Counsel for the petitioners in C.W.J.C. No. - 995/87.
11. In this case, no counter-affidavit has been filed by the respondents and the averments made in the writ petition have not been denied.
C.W.J.C. No. 362/8812. This case has been preferred by the same petitioners, who have preferred "C.W.J.C. No. 976/88. Similar orders were passed by consolidation authorities, the case being almost similar, except the description of land. The order dated 29-12-86 passed by consolidation officer in case No. 627/86; appellate order dated 10-9-87 passed in Appeal No. 414/87 and revisional order dated 9-11-87 passed in consolidation Revision No. 2661/87 are under challenge.
13. The dispute in this case relates to lands measuring.0.36 decimals of R.S. Plot No. 1676 appertaining to Khata No. 688, 0.36 decimals of R.S. Plot No. 1669 appertaining to Khata No. 105 and 0.30 decimals of R.S. Plot No. 1668 appertaining to Khata No. 105, all situated in village-Dighi Kalan.
14. According to the petitioners, Bunni Lal Rai father of petitioner No. 1 got land in dispute in petition from his brothers and came in exclusive possession thereof in the year 1945. Said Bunni Lal Rai and his wife Sampati Devi purchased different lands by different sale-deeds as mentioned in para-7 to the writ petition in between the year 1964 and 1967. It were mutated in the name of Bunni Lal Rai in Jamabandi Case Nos. 3579/2,330,127/686 and since then rent was paid to the State, and receipts were obtained. In the R.S. Khatian, the lands were recorded in the name of vendors and after notification under Section 10(1) of the Act, names of such vendors were again reflected. Bunni Lal Rai filed objections under Section 10(2) of the Act, which were registered as objection case Nos. 123 124 and 375 all of 1975 in which no final order was passed till 1986. On 9-1-78, the village Dighi Kalan was brought within the jurisdiction of P.R.D.A., whereinafter Amin was asked to submit report by impugned order dated 22-12-86. The respondent Nos. 5 to 7 after 11 years from the date of publication of notification under Section 10(1) of the Act, for the first time preferred objection under Section 10(2) of the Act, which was registered as case No. 627/87. In the said Case No. 627/87, the consolidation officer issued notice to Bunni Lal Rai on 23-12-86 fixing a date of hearing after six days on 29-12-86 when impugned order dated 29-12-86 was passed allowing the objection preferred by respondent Nos. 5 to 7. Thereafter the consolidation Appeal No. 414/87 and Revision Case No. 2661/87 both preferred by petitioners were rejected by orders dated 10-9-87 and 9-11-87 respectively merely on the ground that this Court by interim order dated 3-4-87 passed in C.W.J.C. No. 995/87 has restrained the consolidation authorities to proceed in the matter of consolidation proceeding. It is stated that the respondents second party, in the meantime transferred portion of disputed plot No. 1668 to respondents third party by registered saledeed dated 21-12-87.
In this case also, similar plea taken by the Counsel for the petitioners as taken In C.W.J.C. No. 976/88 and reference of same sets of judgments have been cited. The only addition in the submission. made in this case is that the report of local Amin appears to be ante-dated as the date of 19-5-87 was changed to 19-5-86 which does not tally with the date for local inspection as was fixed by consolidation officer in the said case. It is further stated that the notice was issued to Bunni Lal Rai, father of the petitioner, who was dead by the time of issuance of notice.
15. In this case, no counter-affidavit has been filed by the respondents and the averments made in the writ petition have not been denied.
C.W.J.C. No. 8457/9316. In this case, the question involved is whether the revisional authority has jurisdiction to entertain a revision-application against an order passed by collector under Section 32 of the Act.
By impugned order dated 30-10-92/4-11-92 passed in Revision case No. 1566/87, the Director of Consolidation while held that the Collector had no jurisdiction to pass order under Section 32 of the Act in view of interim order of stay passed by this Court in C.W.J.C. No. 995/87, it set aside the order dated 25-5-87 passed by Collector in Case No. 85/83-84.
17. According to the petitioner, the land, in question was purchased by him by registered sale-deed dated 19-4-83 after obtaining permission on 5-4-83 in permission case No. 78/83. Respondent No. 4, Asharfi Singh also purchased the land in question through another registered sale-deed from Gopal Sharma father of respondent No. 5 on 12-1-83. Such purchase by respondents No. 4 was so made without any permission as required under Section 5 of the Act and is void in terms with Section 32 of the Act.
It is stated that while proceeding under Section 32 of the Act was initiated by Collector, Vaishali against respondent Nos. 4 and 5, it was registered as Case No. 85/83-84. The Collector by one order dated 25-5-87 imposed fine of Rs. 150/- on respondent No. 5 having executed the sale-deed without any permission. Thereafter the respondent No. 5 paid the fine of Rs. 150/- in the court of Collector, Vaishali. However, in a Revision Case No. 1596/87 preferred by respondent No. 4, the Director of Consolidation passed the impugned order dated 30-10-92 setting aside the order dated 25-5-87 passed by the Collector on the ground that the High Court granted interim order of stay in the matter of consolidation proceeding in C.W.J.C. No. 995/87.
According to the petitioners, the revision-application against the order imposing fine under Section 32 of the Act was not maintainable and is without jurisdiction. Further, according to the petitioners, the interim order of this Court in C.W.J.C. No. 995/87 is not applicable in a case decided under Section 32 of the Act.
18. In the counter-affidavit, the respondent No. 4 has not disputed the aforesaid fact and stated that the order of the Collector was without jurisdiction as this Court by interim order dated 3-4-87 in C.W.J.C. No. 995/87 had stayed the entire consolidation proceedings in the village-Sherpur, Thana No. 202. Further, according to him, the village Sherpur wherein the land is situated having included within the limits of P.R.D.A. the consolidation proceeding was not maintainable in the village in question. It is further stated that the revisional authority had jurisdiction to set aside the illegal order by its power vested under Section 35 of the Act wherein the Director of Consolidation has been delegated with the power of his own or no the application of any party to call for and examine the record of any case decided or proceedings taken for the purpose of satisfying himself as to the regularity of the proceedings and correctness, legality and propriety of any order.
19. From the pleadings and submissions made by the parties in the aforesaid writ petitions, it appears that while the question relating to operation of consolidation in the village In question has been raised in C.W.J.C. No. 995/87, such question has been raised as an alternative plea in the other cases (C.W.J.C. Nos. 976/88, 362/88 and 8457/93), wherein the main dispute relates to individual claim and counter claim of the parties relating to right and title or action for non-compliance of the provision of Section 5 of the Act.
So far as the sole question raised in C.W.J.C. No. 995/87 is concerned, Counsel for the petitioners of all the writ petitions have failed to bring on record any law, decision or evidence to show that the consolidation proceeding in an area automatically stands closed, if such area is included within an "Regional Development Authority."
So far as operation of consolidation proceeding in an area is concerned, it starts the moment a notification under Section 3 is issued with respect to an area. All legal proceedings including suit relating or right and title in respect to any land in such area cannot be entertained in view of Section 4(b) of the Act, since the date of notification under Section 3 of the Act. There is no provision laid down under the consolidation Act relating to automatic closure of consolidation proceeding except by issuance a notification under Section 4-A of Section 26-A of the Act.
So far as "Bihar Regional Development Authority Act, 1981" is concerned, therein no overriding provision that has been laid down relating to consolidation proceeding in an area within the 'jurisdiction of Regional Development Authority. Section 76 of the Regional Development Authority Act, as referred by one of the Counsel for the petitioners is also not relevant in this case, wherein it has been laid down that the provisions of the said Act, Rules and Regulations made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law.
20. The Counsel for the petitioners of C.W.J.C. No. 995/87 gave much stressed on the nature of the area of the villages, namely, Dighi Kalan and Dighi Khurd and highlighted the fact that most of the area has been urbanised and there is lesser agricultural area. However, the Counsel failed to substantiate his argument as to how the same has relevancy with the operation of the consolidation in an area.
21. Admittedly, the operation of the consolidation proceeding in, the village in question started on 26-11-70 when notification under Section 3 of the Act was issued. The publication under Section 10(1) of the Act was made in between 10-1-75 and 20-2-75. Subject to objection, if any, filed under Section 10(2) of the Act, after 45' days of limitation period the publication of register of lands and statement of principles under Section 10(1) of the Act become final. The rest of the provisions and mere consequential which includes changes and transfer affecting right and interest, for which provision of Section 10-B of the Act has been laid down, re-publication of register and preparation of draft scheme of allotment of chak and its finality and the other provisions to prefer appeal, revision etc. Thus for all purpose the major step for consolidation proceeding relating to right and interest stands finalised at the stage of Section 10 of the Act subject to interference by the revisional authority or any court of law. The rest are consequential including allotment of chaks for the purpose of fragmentation which does not affect the right and interest of a person. In the present case, as the publication of register of lands, statement of principles and thereby decision relating to right and interest reached its finality in the year 1975 with respect to villages in question subject to scrutiny in appeal and revision under the Act, subsequent inclusion or the village within the limits of Patna Regional Development Authority will neither curtail the power vested with the consolidation authority, nor amounts to automatic closure of operation of consolidation proceeding.
So far as nature of land is concerned, the definition of land as laid down under Section 2(9) of the Act is specific which cannot strictly be levelled as "agricultural land" and includes "Homestead", and, by itself, a homestead is not an agricultural land stricto sensu. Thereby submission made on behalf of the Counsel for the petitioners cannot be accepted in general to exclude of the total land of the villages in question, though in appropriate case, the concerned person may bring to the notice of the consolidation authorities that the nature of land is such which does not call for proceeding.
Accordingly, there being no merit in C.W.J.C. No. 995/87, I reject the submission.
So far as C.W.J.C. Nos. 976/88, 362/88 are concerned, the contesting respondents of each of the cases have not disputed the fact that the notification under Section 10(1) of the Act was issued inviting objection between 10-1-75 and 20-2-75 and become final in the year 1975 in absence of objection under Section 10(2) of the Act, so far it relates to land in dispute of each of the writ petition. There being limitation of 45 days laid down for filing any objection under Section 10(2) of the Act, objections preferred by contesting respondents under Section 10(2) of the Act in the year 1986 were not maintainable being time-barred and being barred under Section 10-A of the Act. The consolidation officer had no jurisdiction to pass any order on the same.
So far as appellate land revisional orders passed in both the case are concerned, such orders have been passed not on merit and merely because of interim order passed in C.W.J.C. No. 995/87 which now been rejected. Therefore are also liable to be set aside.
Accordingly, 1 set aside the orders passed by consolidation officer both dated 29-12-86 in consolidation Case No. 1655/86 and 627/86; appellate orders both dated 10-9-87 passed in Appeal No. 413/87 and 414/87 and the revisional orders both dated 9-12-87 passed in Revision Case Nos. 2662/87.
So far as C.W.J.C. No. 8457/93 is concerned, I accept the submission as was advanced by the Counsel for the petitioner. Section 32 of the Act declares transfer of any land as void, if made contrary to the provisions of the Act. The owner of any land if transfers any land or fragment contrary to the provisions of the Act is also liable to pay fine not exceeding two hundred and fifty rupees as the Collector of the district may, subject to general order of the State Government, direct. There is no provision of appeal or revision laid down against such order if passed under Section 32 of the Act. The power under Section 35 of the Act vests the Director of Consolidation with the power to call for and examination of record of any case decided or proceedings taken by such authority for the purpose of satisfying himself relating to the regularity of the proceedings or correctness, legality or propriety of any order. As an action under Section 32 of the Act imposing fine cannot be held to be a decision on a consolidation proceeding and merely penal order for violating the provision of Act, the Director of Consolidation has no jurisdiction to sit in appeal or revision over such order passed by the Collector of the district under Section 32 of the Act.
This apart, as the impugned order dated 30-10-92/4-11-92 was passed merely because of interim order passed in C.W.J.C. No. 995/87, which now stands vacated. Accordingly, such order is set aside.
22. In the result, C.W.J.C. No. 995/87 is dismissed and C.WiJ.C. Nos. 976/88, 362/88 and 8457/93 are allowed, with the observations aforesaid. There will be no order as to costs.