Patna High Court
Dip Narain Singh vs State Of Bihar And Ors. on 29 June, 1977
Equivalent citations: 1978(26)BLJR554
JUDGMENT
B.D. Singh and D.P. Sinha, JJ.
1. This application by Dip Narain Singh under Articles 226 and 227 of the Constitution of India directed against the order dated 26th June, 1973 annexure '2' passed by the Commissioner of Kosi Division (respondent No. 9) setting aside the order dated 29th March, 1969 (annexure '5' which has been annexed to the supplementary affidavit filed by the petitioner on 17th April, 1974) passed by Shri Kapildeo Sharma, Anchal Adhikati and restoring the order dated 20th November, 1967 passed by another Anchal Adhikari, namely, the predecessor of Shri Kapildeo Sharma. The application is also directed against the order dated 22nd January, 1974 (annexure '1') passed by the Additional Member, Board of Revenue, (responent No. 8) by which, when the petitioner, after the order passed under annexure '2' by the Commissioner had preferred a revision before the Additional Member, Board of Revenue, respondent No. 8 was pleased to reject the application of the petitioner on the ground that no revision was provided under Section 40 of the Bihar Tenancy Act (hereinafter referred to as 'the Act'). In the application, therefore, the petitioner has prayed for quashing annexures '1' and '2'.
2. In order to appreciate the point involved in this application it will be necessary to state some materinl facts. The petitioner has stated in his application that he was a settled raiyat of village Sardiha, police station Bakhtiarpur, District Saharsa. In the said village Bhukhan Singh, grandfather of the petitioner was the occupancy raiyat of the lands bearing plots No. 63, 65 and 66 of khata No. 398 and plot No. 64 of khata No. 403. The lands were settled with Bhukhan Singh died leaving behind three sons, namely, Sundar Singh, Narsingh Singh and Badri Singh. There was partition of the joint family properties among the three sons of Bhukhan Singh and specified lands were allotted to Badri Singh father of the petitioner who came in exclusive possession. Badri Singh, the father of the petitioner, also died leaving behind his sons. The petitioner is the karta of the joint family along with his brothers. Respondent Nos. 2 to 7 and 13 were Bhaolidars of the lands which were bhaoli. They used to cultivate and pay produce rent to the grandfather and father of the petitioner. Some of them claimed as Sudbharnadars but their claim were not subsisting, according to the petitioner, after vesting of the State under the Land Reforms Act, 1950. The father of the petitioner had made an application for Commutation of rent of the above lands before the Anchal Adhikari of Simri Bakhtiarpur in the year 1966 under Section 40 of the Act. The said Anchal Adhikari, by order dated 20th November, 1967 the copy of which is annexure 'A? to the show cause filed in this court on behalf of respondent No. 13 on 4th May, 1977. The order inter alia reads thus:
On perusal of reports of Circle Inspector who has been detailed enquiry in the matter and the documents produced by the opposite parties, it appears that the petition has no merit and the case is therefore rejected.
The petitioner, however, in his application has alleged that the other side, namely, respondent No. 13 and others brought the said Circle Officer-cum-Anchal Adhikari in their collusion and succeeded in obtaining false report and the consequent order namely the order dated 20th November, 1967 dropping to the petitioner for commutation of rent was passed. According to the petitioner, the order was fraudulently obtained ex parte behind the back of the petitioner. Therefore, Badri Singh, father of the petitioner, made another application for commutation of rent of the said lands before another Anchal Adhikari stating the circumstances under which the then Anchal Adhikari had dropped the previous proceedings Shri Kapildeo Sharma who had passed the order dated 29th March, 1969 on filing of the application (annexure '3') before him, sent the application of the petitioner's father to the Circle Inspector for enquiry and report. The Circle Inspector submitted his report before the Anchal Adhikari who perused the same, heard the parties and passed the order dated 29th March, 1969 (annexure '5') ordering commutation of rent from produce rent to cash rent. According to the petitioner, Birendra Narain Singh (respondent No. 13) alone had filed objection before Shri Kapildeo Sharmat Anchal Adhikari, and after the order was against Birendra Narain Singh, he preferred an appeal before the Deputy Collector, Land Reforms, Saharsa. The Deputy Collector, Land Reforms, after hearing the parties, rejected the appeal on the ground that he had no jurisdiction to hear the appeal (vide annexure '6' to the supplementary affidavit filed by the petitioner). Thereupon respondent No. 13 filed an appeal before the Collector of Saharsa which was heard by the Additional Collector (respondent No. 10) and he, by his order dated November, 1972 (annexnre '4') rejected the appeal being time barred.
3. Respondent No. 13 then filed a miscellaneous case before the Commissioner (respondent No. 9) which was registered as Miscellaneous Case No. 5 of 1972-73. This application filed by respondent No. 13 was allowed and the order of the Anchal Adhikari dated 29th March, 1969 allowing commutation of rent was quashed and the order of the Anchal Adhikari dated 20th November, 1967 was made enforceable. In the said order contained in annexure '2' he had also directed an enquiry to be made into the circumstances under which the order dated 29th March, 1963 was passed by suppressing the order dated 20th November, 1967- Aggrieved by the said order the petitioner filed revision application before the Member, Board of Revenue which was heard by the Additional Member (respondent No. 8) who was pleased to pass the following order:
Rent commutation matters are dealt within Section 40 of the B. T. Act and Section 40, Sub-section (6) provides for an appeal but no revision is provided for. In fact no revisional power has been vested in the Board in matters of rent commutation. It is, therefore, not possible for the Board to entertain the present petition. Rejected summarily.
On behalf of respondent No. 13 show cause has been filed on 4th May, 1977 wherein, inter alia, he has supported the order dated 20th November, 1967 passed by the then Anchal Adhikari, copy of which has been filed by him as annexure 'A' to the show cause application.
4. Mr. Gorakh Nath Singh, leaned counsel appearing on behalf of the petitioner, has assailed the impugned orders contained in annexures 'V and '2' and has contended that the order passed by Shri Kapildeo Sharma dated 29th March, 1969 was in accordance with law. Therefore, according to him, the learned Commissioner has erred in quashing the Anchal Adhikari's order dated 29th March, 1969 and ordering for enforcement of the order dated 20th November, 1967. Besides, the learned Commissioner himself had no jurisdiction to entertain the application filed on behalf of respondent no; 13 under Section 40 of the Act. The application, according to him, was not maintainable at all. He further contended that in the earlier proceeding the order dated 20th November, 1967 passed by the then Anchal Adhikari was passed behind the back of the petitioner and since, as mentioned in his application, it was obtained collusively by respondent No. 13 and others therefore according to him, although in the order he rejected the commutation application but in fact it amounted to dropping the proceeding and, therefore, a fresh application before another Anchal Adhikari was not barred.
5. In order to find support to his submission he has referred to Section 40 of the Act which deals with commutation of rent payable in kind. The relevant portion of the said section reads thus:
40. (1). Where an occupancy raiyat pays for his holding rent in kind or rent at rates varying with the crop or partly in one of those says and partly in another, or partly in one of those says and partly in cash, either the raiyat or his landlord may apply to have the rent commuted to money rent.
(5). The order shall be in writing and shall state the grounds on which it is made and the time from which it is to take effect.
(6). (a) An appeal shall lie from an order preferred to in section (5):
(i) If such order is passed by any officer other than the Collector of a district, to the Collector of the District or to any officer specially empowered by the State Government by notification to hear such appeals ;
(ii) If such order is passed by the Collector of a district, to the prescribed authority ;
and the decision of the Collector of the district or of any officer so empowered or of the prescribed authority on any such appeal shall be final.
Learned counsel for the petitioner emphasised that none of these provisions prescribed any remedy by way of appeal or revision against the order rejecting the commutation application. Only if the commutation is allowed under Sub-section (5), an appeal would lie as provided under Sub-section (6). Therefore, the petitioner could not have preferred an appeal against the order of reject-tion. He contended that by reading Sub-section (5) it is apparent that the legislature never meant for providing any appeal against rejection order as, by allowing the application for commutation. The order has to indicate as to from which date it should take effect. This cannot be read, he urged that allowing an application will also include the power for rejection the same, because in that case the direction of certain period from which it has to take effect as provided under Sub-section (5) becomes redundant. He further pointed out that even in Sub-section (6) there is specific reference to Sub-section (5). Therefore, he submitted that in the instant case no limitation is imposed on the rights of the petitioner for filing a fresh commutation petition before an authority having concurrent power and jurisdiction on rejection of his earlier application. According to him, if one Anchal Adhikari has rejected the application for commutation, the petitioner's father was justified in filing a fresh application before another Anchal Adhikari. Besides, according to him, as mentioned already, in fact in the instant case, the rejection passed in the order of the previous Anchal Adhikari amounted, in the circumstances, only to the dropping of the proceeding.
6. In our opinion, this contention of the learned Counsel for the petitioner is not sustainable. When we peruse the order contained in Annexure 'A' which has already been referred while dealing the facts of the case, it is apparent that it cannot be read, in the circumstances, that the proceeding was dropped. It appears that it has been rejected on merits after considering the case from various aspects. It may be true that on a particular day, when the order was passed the petitioner could not be present to represent his case. It may be noticed that the petitioner's father already was the applicant. It was his duty to be present or get his case represented on the 'relevant dates.
7. As regards interpretation of Sub-sections (5) and (6) quoted above, we are of the view that it is well-settled principle that an authority having power to allow an application has implied power of rejecting the application. Even the words occurring in Sub-section (5) 'time from which it is to take effect will not be considered as an impediment to such an interpretation.' Therefore, according to us, if the petitioner was aggrieved by the rejection order dated 20th November, 1967, passed by the Anchal Adhikari, he could have preferred an appeal before the appropriate authority. Besides if we were to accept the contention as given by the petitioner, it would amount to allowing the authority of concurrent jurisdiction to revise the order passed by his predecessor and the petitioner in that case will go on filing application after application before different Anchal Adhikari unless and until the application is allowed.
8. Now coming to the question as to whether the Commissioner had jurisdiction to pass the order contained in annexure '2' it is submitted, as mentioned earlier, that he had no jurisdiction to pass the said order under the Act. Therefore, it was urged that the order contained in annexure '2' should be quashed. It is true that under the Act the Commissioner had no jurisdiction and only the Collector had power to hear the appeal. But in the instant case we find from the records of the case which have been placed before us that while filing the fresh application before the Anchal Adhikari Shri Kapildeo Sharma, the petitioner's father had not mention about the previous order passed by the Anchal Adhikari on 20th November, 1967. From the second application, copy of which has been filed as annexure '3' it is apparent that the petitioner's father had suppressed material facts and had misled the Anchal Adhikari Shri Kapildeo Sharma and had obtained his order wrongly and illegally. Reference may be made to paragraphs 10 and 11 of annexure '3' which read thus:
10. That a petition for the commutation was filed long ago on 6-3-67 but nothing could be known to the petitioner as yet.
11. That the petition was sent for enquiry to then C.I. who was putting off time and could not hold enquiry on the spot as yet.
It is, therefore, prayed that the land in question may kindly be commuted into nakdi rent at the rate of Rs. 2/- per bigha. And for this the applicant shall ever pray.
This fact has been taken note of by the Commissioner also in his order contained in annexure '2' the relevant portion of which is to the following effect:
From a study of records it is apparent that the allegations brought by the appellant in the memo of appeal filed before me that this illegal order was obtained by misleading the learned Anchal Adhikari and with the collusion of some of the Block staffs seems to be prima facie true.
In that view of the matter we are not inclined to quash the order passed by the Commissioner contained in annexure '2' This led us also to examine the previous order dated 20th November, 1967 as well as 29th March, 1969. If we would have quashed the order contained in annexure '2', it would have amounted to allowing an illegality to perpetuate.
9. In the result, therefore, application is dismissed in the circumstances, however, there will be no order as to costs.