Patna High Court
Yogendra Singh & Ors vs State & Ors on 7 December, 2012
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4544 of 1992
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1. Yogendra Singh son of Late Narsingh Narayan Singh
2. Upendra Singh
3. Bechu Singh sons of Late Mathura Singh
4. Mithilesh Kumar son of Late Bhuneshwar Singh, all residents of village Kendua
P.S Gurua, Gaya
5. Indu Devi wife of Shri Krishna Singh and daughter of Late Bhuneshwar Singh
respondent ofvillage Jethian P.S. Atri, Gaya
6. Kalawati Devi wife of Shri vinay Singh and daughter of Late Bhuneshwar
Singh resident of village Khatila P.S. Atri, Gaya
7. Vidya Devi wife of Ramjee Singh and daughter of Late Bhuneshwar Singh
resident of village Solhanda P.S. Makhdumpur, Jehanabad
.... .... Petitioner/s
Versus
1. The State of Bihar
2. The Joint Director of Consolidation Gaya
3. The Deputy Director Consolidation (Central Range) Gaya
4. The Consolidation Officedr (Central Range) Gurua Gaya
5. Deosharan Yadav
6. Mungeshwar Yadav sons of Late Chhathu Yadav both residents of village
Kendua P.S. Gurua, Gaya
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Surendra Kr. Singh Sr. Advodate
Mr. Kamala Prasad
Mr. Amarendra Kumar
Mr. Praveen Prakash
For the State Mr. Ranjan Kumar, A.C. to A.A.G.13
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
ORAL JUDGMENT
Date: 07-12-2012
K. K. Mandal,J. Present application filed under Article 226 of the Constitution of
India seeks issuance of appropriate writ in the nature of certiorari or any other
appropriate writ/order to quash the order dated 26.03.1992 passed by the Joint
Director of Consolidation in Revision Case No. 169 of 1988 (Annexure-1)
whereby the revision preferred by respondent nos. 5 and 6 was allowed and the
order of the appellate court/authority dated 30.11.1987 (Annexure-9) was quashed
and set aside.
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Relevant facts, in brief, are as under:-
The petitioners claim to be the descendants of late Narsing Narayan
Singh who was father of Bhuneshwar Singh, Yogendra Singh (petitioner No. 1)
and Late Mathura Singh (father of petitioner Nos. 2 and 3). The subject land(s)
in dispute appertain to C.S. Khata No.18, C.S. Plot No. 84 corresponding to R.S.
Plot No. 136 (0.86 acres), C.S. Plot No. 110 corresponding to R.S. Plot No. 146
(0.57 acres), C.S. Plot No. 47 corresponding to R.S. plot No. 242 (0.12 acres),
C.S. Plot No. 61 corresponding to R.S. Plot No. 251 (0.15 acres and C.S. Plot No.
320 (1.27) acres) in all 2.97 acres of the aforesaid description situate in village
Kendua within Gurua Police Station in the district of Gaya. According to the
petitioners, the aforesaid land was recorded in the name of one Faggu Gope. He
was unable to pay the land rent and, therefore, surrendered the subject land in
favour of the ex-intermediaries. By the time such surrender was made by the
aforesaid Faggu Gope, there was a collectorate partition amongst the ex-
intermediaries. The subject land, however, was wrongly shown in the name of one
Bihari Gope. Let it be recorded that the respondents herein are the grandsons of
aforesaid Bihari Gope. According to the writ petition, aforesaid Bihari Gope
executed a sada Bazidava in respect of the subject land admitting therein that the
same belonged to the ex-intermediary. According to the writ petition, the value of
the land was less than Rs. 100/- and, as such, the aforesaid Bihari Gope had
executed a sada (unregistered) bazidava in relation to the subject land admitting
therein that the same did not belong to him. The subject land thereafter stood
settled in favour of the ancestors of the writ petitioners. The settlee was
recognized as the tenant by the ex-landlord and rent receipts were issued against
payment of rent by the ex-intermediary. At the time of vesting of intermediary
rights, return was also filed by the ex-intermediary treating the ancestor of the
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petitioners as raiyat of the subject land(s). It is asserted that the petitioners
approached the authority seeking issuance of certified copy thereof but it was
revealed by endorsement on requisition that the same was not available with the
Revenue authority. It is the case of the petitioners that their ancestor was
thereafter recorded in the Revenue records as the tenant and the land rent was
being paid continuously to the State of Bihar against the receipts. Some of the
rent receipts have been enclosed alongwith the writ petition. The petitioners have
also filed diverse documents such as canal purcha to show that the subject land
was continuously in their possession as the raiyat of the land. In the year 1975, a
proceeding under the Bihar Land Reforms (Fixation of Ceiling Area and
Acquisition of Surplus Land) Act, 1961 was initiated against Late Bhuneshwar
Singh and some of his family members vide L.C. Case No. 435/15 of 1973-74. A
verification report (Annexure-5) was submitted by the Anchal Adhikari revealing
therein that the subject land was the land of the proceedee under the Act. The
said matter was thereafter considered by the Deputy Collector, Land Reforms and
by an order dated 20.10.1975 (Annexure-6), the ceiling proceeding was dropped
in view of the fact that the land held by the family was far less than the
entitlement. During Revisional Survey Operation, the subject land, in the light of
the aforesaid facts as well as order passed in the land ceiling proceeding, was
recorded in the name of Bhuneshwar Prasad Singh and others (ancestors of the
petitioners). An objection under Section 10(2) of the Bihar Consolidations of
Holdings and Prevention of Fragmentation Act, 1956 was filed for the first time
by the respondent Nos. 5 and 6 against recording of the name of the ancestor of
the petitioner in the draft documents in line with the Revisional Survey records
which gave rise to Case No. 4 of 1986. The petitioner, on notice, appeared and
contested the same. All relevant documents were produced before the
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Consolidation Officer. Upon consideration of those documents and after hearing
the parties, the Consolidation Officer by an order dated 30.6.1987 (Annexure-8)
rejected the objection filed by the respondent Nos. 5 and 6. Aggrieved thereby,
the private respondents filed an appeal before the Appellate Court/forum vide
Appeal No. 539 of 1987. The said appeal was contested by the petitioners. The
Appellate Authority by an order dated 30.11.1987 (Annexure-9) rejected the said
appeal preferred by the private respondents. Feeling aggrieved, the private
respondents (respondent Nos. 5 and 6) filed a revision application before the
revisional authority vide Revision No. 169 of 1988. The petitioners appeared
thereat and presented all documents which were produced in the Court below
relying whereon concurrent finding(s) were recorded by the two Courts below
that the subject land was rightly recorded in the name of the ancestor of the
petitioner. The Revisional Court by an order dated 26.3.1992 (Annexure-1)
allowed the revision application and set aside the appellate as well as original
order (Annexure-8 and 9 respectively) leading to the filing of the present writ
petition.
Heard Mr. Surendra Kr. Singh, learned Sr. Counsel for the
petitioners and A.C. to AAG-13 for the State.
Nobody appears on behalf of respondent nos.5 and 6. No counter
affidavit has been filed either on behalf of the State or the private respondent
nos. 5 and 6.
Learned counsel for the petitioners submits that under the scheme of
the Bihar Consolidation of Holdings (Prevention of Fragmentation) Act, 1956 (for
short „the Act‟) the revisional jurisdiction has been conferred on the revisional
authority to oversee the correctness, propriety, legality or otherwise of the order
passed by the authority under him. The scope and ambit of jurisdiction conferred
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under section 35 of the Act fell for consideration before this Court in Jagu
Mallah & Ors. Vs. State of Bihar & Ors (1996 (2) PLJR 924). A learned
Single Judge of this Court relying on the ratio laid down by the Apex Court in
1994 Supp (2) SCC 198 held as under in paragraph 6 of the report:-
"6. Respondent no.1 while deciding the revision of
respondent no.4 under Section 35 of the Act has
reversed the findings of fact recorded by respondent
no.2, in favour of the petitioners. Respondent no.1,
in his revisional jurisdiction had no power to set aside
the findings of fact recorded by respondent no.2 in
favour of the petitioners, after considering the entire
materials on record. My this view, finds support from
a decision of the Supreme Court in Ram Dular vs.
Dy. Director of Consolidation, Jaunpur & others,
1994 Supp (2) Supreme Court Cases-198 in which
the Supreme Court while interpreting a similar
provision of U.P. Consolidation of Holdings Act held:-
"It is clear that the Director had power to satisfy
himself as to the legality of the proceedings or as to
the correctness of the proceedings or correctness,
legality or propriety of any order other than
interlocutory order passed by the authorities under the
Act. But in considering the correctness, legality or
propriety of the order or correctness of the proceedings
or regularity thereof it cannot assume to itself the
jurisdiction of the original authority as a fact-finding
authority by appreciating for itself of those facts de
novo. It has to consider whether the legally admissible
evidence had not been considered by the authorities in
recording a finding of fact or law or the conclusion
reached by it is based on no evidence, any patent
illegality or impropriety had been committed or there
was any procedural irregularity, which goes to the rest
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(six root) of the matter, had been committed in
recording the order or finding."
Learned counsel submits that the provision of law appearing in
section 35 of the Act and the corresponding provision in U.P. Consolidation of
Holdings Act is in pari materia. It is contended that on going through the
impugned order (Annexure-1) it would appear that respondent- revisional
authority has re-appraised the materials on record and substituted its own finding
de novo. In the submissions of the counsel, such jurisdiction is not conferred on
the revisional authority particularly when it is not the case that any
document/evidence was not taken note of by the appellate authority or a wrong
conclusion was derived relying thereon while concurring with the view of the
original authority (Annexure-8). Mr. Singh argued that the respondent
revisional court while re-appreciating the materials on record has committed an
error of record in treating the case of the petitioners that Faggu Gope had
abandoned the land or the village. Referring to the order of the appellate
authority and the pleadings made in the writ petition it has been submitted that
in, fact, the case of the petitioners consistently was that aforesaid Faggu Gope
had surrendered the land in favour of the ex intermediary whereafter the subject
land was settled with the ancestor of the petitioners by issuing a Sada
Hukumnama executed on 26th Jeth 1343 Fasli (Annexure-4). He also criticized
the view taken by the revisional court in the impugned order that aforesaid
Hukumnama cannot be referred to and relied upon since the same was
unregistered. He submits that from the materials on record including the
averments made in para 25 of the writ petition it would appear that valuation of
the land was less than Rs.45/- only on the date of execution of Bazidava in favour
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of ex intermediary by Bihari Gope (grandfather of private respondent) and as
such there was absolutely no need of registration thereof. Learned counsel
submits that while re-appreciating the case of the parties the revisional court
committed a serious error which has vitiated the impugned order. It appears from
the impugned order that while relying on the case of the petitioners the revisional
authority has relied on the order passed by the Executive Magistrate under
section 144 of Cr. P.C. vide Case No. 767/90 which was passed on 5.10.1990.
Learned counsel for the petitioners has rightly criticized the aforesaid part of the
revisional order since any proceeding under section 144 Cr.P.C. has a limited
life. That apart, even if the said order is taken into consideration it has to be
kept in mind that the same was passed during the pendency of the revision
application. The original authority in the present case has decided the dispute by
order dated 30.6.1987 (Annexure-8) and the appellate order by order dated
30.11.1987(Annexure-9).
Learned counsel for the State on the other hand simply supported the impugned order.
The extent of the jurisdiction conferred on the revisional court has been considered by this Court in the case of Jagu Mallah (supra). The enquiry or consideration by the revisional court has to be confined to examining the legality/propriety and/or correctness of the order passed by the court below. The findings of fact recorded by the two courts below on appraisal of the materials on record should not normally be interfered with by the revisional court until and unless the same is/are shown to be wholly erroneous and/or contrary to the provision of law. Learned counsel for the petitioners has rightly pointed out that while re-appreciating the materials on record the revisional court committed error of record in treating the case of the petitioners that there was abandonment of the 8 Patna High Court CWJC No.4544 of 1992 dt.07-12-2012 8/8 subject land by Faggu Gope. In fact, the case of the petitioners consistently has been that the aforesaid Faggu Gope had surrendered the land in favour of ex landlord/intermediary. The revisional court has not found that the appellate order suffered from error of jurisdiction or is vitiated on account of non consideration of any relevant fact or evidence. This Court in view of aforesaid is satisfied that the order passed by the revisional court dated 26.3.1992 (Annexure-1) merits interference.
The application is allowed. The order impugned dated 26.3.1992 (Annexure-1) is quashed and set aside.
No order as to cost(s).
(Kishore Kumar Mandal, J) HR/-