Patna High Court
Hari Narain Singh And Ors. vs State Of Bihar And Ors. on 18 February, 1997
Equivalent citations: 1997(2)BLJR982, 1997 A I H C 3340, 1997 BLJR 2 982 (1997) 1 BLJ 921, (1997) 1 BLJ 921
Author: D.P. Wadhwa
Bench: D.P. Wadhwa
JUDGMENT R.M. Prasad, J.
1. This writ application is directed against the order dated 25.11.1985 contained in Annexure-4 passed by the Deputy Director of Consolidation, Bihar. Headquarters at Patna purporting to be in exercise of the power under Section 35 of the Bihar Consolidation of Holdings and the Prevention of Fragmentation Act, 1956 (hereinafter preferred to as 'the Act') setting aside the order dated 13.8.1984 passed in Appeal No. 74/84-85 by the Dy. Director, Consolidation. Rohtas and confirming the order dated 3.3.1984 in case No. 38/83-84 passed by the Consolidation Officer Dehri purporting to be under Section 10-B of the Act, contained in Annexures 2 and 1, respectively.
2. In short, the relevant facts are that the petitioners and respondent Nos. 5 to 7 are descendants of their common ancestor Pratap Singh. The dispute is in respect of lands pertaining to revisional survey khata No. 209 and revisional survey plot Nos. 173 and 2010 comprising an area of 25 and 56 decimals, respectively, total being 0.81 acres in village Ghanai P.S. Dehri now Akorhi Gola P.S. 138 in the district of Rohtas. It is claimed that the land in dispute was jointly recorded in the names of the descendants of Pratap Singh including the petitioners and the aforementioned private respondents in the revisional survey khatian and in its remark column also joint possession was shown. Revisional survey plot No. 173 is a mango garden and is in joint possession of the parties and revisional survey plot No. 2010 is agriculture land, jointly cultivated by the parties. It is stated that revisional survey entry in the joint name of the parties was never challenged by the said respondents before the survey authorities either under Section 103-A, 106 or 109 of the Bihar Tenancy Act or in a competent Civil Court within three years from the date of final publication of the revisional survey entry.
3. In the supplementary affidavit, filed on behalf of the petitioners it is stated that the concerned village was notified under Section 3 of the Act vide S.C. No. 1076 dated 12.10.1972. The register of land prepared under Sub-section (2) of Section 9 and statement of principles prepared under Section 9 of the Act was published under Section 10 (1) on 12.10.1974 and the same remained published for thirty days, i.e. till 12.11.1974. Under Section 10 (2) of the Act the objections, if any, were to be filed within 45 days of the date of the publication of the registers under Sub-section (1) before the Asst. Consolidation Officer disputing the correctness and nature of entires in the records or in the statement of principles, i.e. by 26.11.1974, which was not done. However, in the year 1983 respondent Nos. 5 to 7 filed case No. 38/83-84 before the Consolidation Officer, Dehri, District Rohtas (respondent No. 4), purporting to be under Section 10-B of the Act praying therein 10 prepare Consolidation in their exclusive names.
4. The claim of the said respondents was that the lands in dispute along with other lands were auction sold in execution case No. 613/36 in satisfaction of the decree passed in Money suit No. 125/35 in favour of one Deo Mahto and after the death of Deo Mahto his son Bhola Mahto sold the said lands to private respondent Nos. 5 to 7 on 10.10.1955. As such, they prayed for recording of their exclusive names in the revisional survey khatian. The Consolidation Officer, Dehri (respondent No. 4) allowed their prayer vide order dated 3.3.1984 (Annexure 1), against which the petitioners filed appeal No. 74/84-85 before the Dy. Director, Consolidation, Rohtas (respondent No. 3) who, vide order dated 13.8.1984 (Annexure 2) set aside the order passed by respondent No. 4 and allowed the appeal and upheld the revisional survey entry. Respondent Nos. 5 to 7 filed revision case No. 3043/84 purporting to be under Section 35 of the Act before the Director, Consolidation against the aforesaid order of the appellate authority. During the pendency of the revision the Dy. Director of Consolidation, Headquarters (respondent No. 2) while exercising the revisional power, directed the respondent No. 4 to hold local inspection and to send report regarding possession over the disputed lands. Respondent No. 4 held local inspection on 12.10.1985 and forwarded his report on 15.10.1985, soon thereafter the petitioner filed an application before respondent No. 2 praying therein to direct any officer other than respondent No. 4 to hold local inspection, as his order itself was under challenge. It is also alleged that the report of respondent No. 4 in respect of possession of the disputed lands in favour of private respondent Nos. 5 to 7 is wrong, collusive, illegal and without jurisdiction against the principle of natural justice. Respondent No. 2 dismissed the said application and allowed the revision vide the impugned order dated 25.11.1985.
5. A rejoinder on behalf of respondent Nos. 5 to 7 has been filed, in which the facts aforementioned, more or less are not disputed, except that they claimed whole of the aforementioned plots, where as, according to them the writ petitioners claim half of the same. Their further case is that the common ancestor Pratap Singh had three sons namely, Subedar, Budhram and Sukari. The writ petitioner No. 6 Guput Singh and respondent Nos. 5 to 7 are the descendants of Subedar, writ petitioner No. 4 Puranwasi originally belong to the branch of Subedar, being son of Manik and brother of writ petitioner Guput, but he was taken in adoption by Rachheya one of the sons of Sukhari. Writ petitioner No. 5 Charitar is the husband of Parbatia, who is the daughter of Baldeo, grandson of Sukhari. Writ petitioner Nos. 1,2 and 3, namely, Hari Narain, Ghamari and Kamdhari came from the branch of Budhram. According to them, after the death of Pratap Singh and before cadestral survey there were petitions among the three sons of Pratap. The lands along with other lands fell in the share of Subedar Singh and the descendants of Budhram and Sukhari had no right, title in the said plot. It is stated that the entire land of Subedar Singh including the disputed plot were auction sold in Execution Case No. 613/36 in satisfaction of money decree Passed in Money suit No. 125/35 by the Court of Munsif, Sasaram and the name was purchased by one Deo Mahto, who came in possession over the same. Deo Mahto died and his son Bhola, who succeeded him, sold the entire said lands by registered sale deed dated 10.10.1955 to the present respondent Nos. 5 and 6, who after purchase came in possession and still claim to be in possession. It is alleged that the revisional survey the two plots in question were wrongly recorded in the joint names of writ petitioners and respondent Nos. 5 and 6. It is also alleged that the said respondents entirely relied upon petitioner No. 1 who was looking after the survey proceeding and had undertaken to do necessary pairvi in the survey proceeding on behalf of the said respondents. In good faith they depended upon the said petitioner No. 1 and also on petitioner No. 2 Ghamari. It is claimed that canal rent with respect to disputed lands is paid by the said respondents and the canal purchase stand in their names. It is also stated that the said respondents relied upon and filed various documents before respondent No. 1, who allowed their revision by order impugned and there was no illegality committed by the revisional authorities.
6. Mr. Anjani Kumar Sinha, learned Counsel for the petitioners, inter alia contended that case No. 38/83-84 before the Consolidation Officer filed by respondent Nos. 5 to 7 purporting to be under Section 10-B was not at all maintainable inasmuch as respondent Nos. 5 to 7 having not filed any objection under Section 10 (2) of the Act within the stipulated time and no matter relating to changes and transfer affecting any rights or interests recorded in the registers of land published under Sub-section (1) of Section 10 for which cause of action had not arisen where proceedings under Section 8 and 9 were started or were in progress being involved, the petition under Section 10-B was not maintainable. Nonetheless, such an objection was barred under Section 10-A of the Act. It was submitted by Mr. Sinha that undisputedly the revisional survey khatian was prepared and published in the year 1970, i.e. much before the initiation of the consolidation proceeding in the area by notification under Section 3 of the Act on 12.10.1972, but the respondents never raised objection with respect to entry made therein. The register of lands was published under Section 10 (1) of the Act on 12.10.1974, to which also no objection was raised in terms of the provisions under Section 10 (2) the act. It is not the case of the respondents that any changes and/or transfer affecting any rights or interest recorded in the register of land published under Sub-section (1) of Section 10 were made after the proceeding under Sections 8 and 9 were started or were in progress, for which cause of action had not arisen till then for raising any objection. As such, according to him, the remedy under Section 10-B was not available to the concerned respondents. The only remedy for the respondents was by raising objection under Section 10 (2) of the Act within the stipulated time, which was not available for almost 10 long years and as such, Section 10A of the Act bars from raising or bearing any such objection at any subsequent stage of the consolidation proceeding. It was thus, submitted by him that the order of the Consolidation Officer as well as the order of the revisional authority affirming the same was wholly without jurisdiction and fit to be set aside on this ground alone.
7. Mr. Keshri Singh, learned Counsel appearing for the respondents Nos. 5 to 7, on the other hand, ventured to submit that it is true that no objection was filed by the said respondents under Section 10 (2), but since the respondents were coming peaceful and exclusive possession over the disputed lands and had been paying rent to the State of Bihar, for which rent receipts were also granted and the canal rent with respect to the disputed lands were also paid by them and the canal purchase stood in their names, they never apprehended any foul play of the petitioner, upon whom the said respondents entirely relied. As such, according to him, the petition filed by the said respondents under Section 10-B was maintainable and was rightly entertained by the Consolidation Officer. It was further submitted by him that, in any view, the revisional authority under Section 35 of the Act has been vested with very wide power to call for and examine the record of any case decided or proceeding taken by any authority for the purpose of satisfying himself and after allowing the parties concerned the opportunity of being heard, to make such order in course of proceedings as he finds fit. In this regard, he placed reliance on the decisions of this Court is the case of Shyam Bihari Upadhyay v. State of Bihar and Ors. reported in 1985 BBCJ 176 and in the case of Sheo Kumar Thakur v. State of Bihar and Ors. reported in 1985 PLJR 986. According to Mr. Singh the language of the section indicates that the power is a suo motu power. So, the bar created by Section 10-A of the a***c will not affect the power of the revisional authority which can be exercised by him even if the limitation for filing revision expired. I am unable to accept the said contention of the learned Counsel for the respondents. Section 10A of the Act reads as follows:
10-A. Bar to objection--No question in respect of any entry made in the map or registers prepared under Section 9 of the statement of principles prepared under Section 9-A relating to the consolidation area, which might or ought to have been raised under Section 10 but has not been raised, shall not be raised or heard at any subsequent stage of the Consolidation proceeding.
8. From bare reading of Section 10-A of the Act, it is clear that it completely bars from raising any question in reaspect of any entry made in the map of register prepared under Section 9 or the statement of principles, prepared under Section 9-A relating to the consolidation area, which might or ought to have been raised under Section 10, but has not been raised, at any subsequent stage of consolidations proceeding. Even the hearing of such question is barred at any subsequent stage of the consolidation proceeding. It is true that the revisional authority under Section 35 of the Act may, of his own motion or on the application of any party or on reference being made by any subordinate authority, call for and examine the records of any case decided or proceeding taken by such authority for the purposes 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 proceeding and may after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit. But the said power cannot be held to be so wide to even authorise him to vest power to the subordinate anthority, or to justify illegal orders passed by them against the express provision, contained in Section 10-A of the Act, which completely bars from raising any question in respect of entry made in the map or registers, prepared under Section 9 of the statement of principles prepared under Section 9-A relating to the consolidation area, which bought to have been raised under Section 10 but has not been raised and also from hearing such objection at any subsequent stage of the consolidation proceeding. As such, in my opinion, the authorities under the Act cannot re-open the dispute in respect of such entries, against which no objection had been filed, except under special circumstances as is permissible under various other provisions of the Act.
9. The scope of Section 10- came up for consideration before a Division Bench of this Court in the similar case of Jagarnath Thakur and Anr. v. State of Bihar and Ors. reported in 1985 B.B.C.J. 140, wherein it was held that if a person does not file objection under Section 10 (2), he cannot raise any objection in respect of the entry at any subsequent stage of consolidation proceeding, because the bar of Section 10-A operates in such cases. In the case of S.B. Upadhyay v. State of Bihar (supra) another Division Bench of this Court took notice of the aforesaid judgment, but held that the question whether the bar of Section 10-A also operates on the power of Director, Consolidation under Section 35 was left open as it did not arise for consideration in the facts and circumstances of that case. The Bench thus, while considering the power of the Director under Section 35 vis-a-vis the provision relating to bar contained in Section 10-A. accepted the contention of the learned Additional Advocate General that the bar will operate at subsequent stage of consolidation proceeding and not on the revisional power of Director Consolidation. According to their Lordships, when the Director of Consolidation exercises the revisional power suo motu or an application of the party, it is not at the Sub-Sequent stage of the consolidation proceedings. The Court distinguished the decision of the Apex Court in the case of Gafoora and Anr. v. The Dy. Director of Consolidation, Meerut and Ors. , in which it was held that Section 11-A of the U.P. consolidation of Holdings Act, which is a similar provision of Section 10-A of the Act bars all objections at later stage of the proceedings. The Court held that in the said decision, the Apex Court has not held that bar to Section 11-A operates even on the terminal power of the Director under Section 48 of that Act. The Court further pointed out that there is no non-obstante clause in Section 10-A, so that it can be inferred that framer of the Act purported to give it an overriding effect even on Section 35 of the Act and thus, held that Section 10-A does not operate as bar on the power of the Director of Consolidation. This view view was re-iterated in the case of Sheokumar Thakur v. State of Bihar (supra).
10. The Supreme Court in its recent decision in the case of Ramdular v. Dy. Director of Consolidation, Jaunpur and Ors. reported in Judgment Today 1994 (3) SC 341, while consolidering the scope of similar power under Section 48 of the U.P. Consolidation of Holdings Act, 1953, held that the Director under the said provision had power to satisfy himself as to the legality of the proceeding or as the 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 the fact de novo. It is true that this Court in the case of Shiv Kumar Thakur v. State of Bihar (supra) held the power of the Director under Section 35 of the Act to be very wide. The Division Bench in the said case, has, however, not dealt with the situation, which would amount to giving sanction to the revisional authority under Section 35 of the Act to usurp the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of the facts de novo, of which the Supreme Court in the case of Ramdular v. Dy. Director of Consolidation, Jaunpur (supra) has taken notice and held that the revisional authority while exercising such power cannot assume to itself the jurisdiction of the original authority or a fact-finding authority by appreciating for itself of these facts de novo. Section 35 has similar power as the one contained is Section 40 of the U.P. Act. Thus, in my opinion, is view of the law laid down by the Apex Court in Ramdular's case (supra) the Division Bench judgments in the cases of Shyam Bihari Upadhyay and Shiv Kumar Thakur (supra) are per incurium.
11. Relying upon the said decisions of the Apex Court, in the case of Shambhunath Pandey v. state of Bihar and Ors. reported in 1996 (2) BLJ 41 held that "Section 35 of the Act does not intend to give such a wide power to the Director of Consolidation to vest power to the subordinate authorities, or to justify their illegal orders, which have been passed by them against the 'express provision of the Act under Section 10-A of the Act which completely bars the subordinate authorities to re-open the disputes or entries, against which no objection had been filed at the stage of Section 10 92) or under Section 10-C and D of the Act."
It was further held that"... the object of Section 35 of the Act is to empower the Director of Consolidation to see that the subordinate courts are not acting arbitrarily and illegally in exercise of their jurisdiction but not to assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of the facts de novo.
12. Section 35 of the act reads as follows:
35 Revision and reference:-The Director of Consolidation may of the own motion or on the application of any party on reference being made by any subordinate authority, call for the examine the record of any case decided or proceedings taken by the 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.
13. Section 10-A of the Act completely debars from raising any question in respect of any entry made in the map or register prepared under Section 9 of the Statement of principle prepared under Section 9-A elating to the consolidation area, which might or ought to have been raised under Section 10, but was not raised, at any subsequent stage of consolidation proceeding. Section 10-B provides for a remedy in the matters relating to changes and transfers affecting any rights or interest recorded in revised records, for which cause of action had not arisen at the stage of preparation of records of rights and preparation of registers of land by raising the same before the Consolidation Officer within thirty days of cause of action but not later than the date of notification under Section 26-A or Sub-section (1) of Section 4-A of the Act. The provisions of Section 8 and 9 are to apply mutatis mutandis to the hearing and in taking decision of any such question raised Section 10-C of the Act (with which we are not concerned in the present case provides for re-publication of register of lands etc. In certain cases under which after expiry of the specified period of exemption as provided in Section 5-A, but before the publication of the draft scheme of consolidation under Sub-section (1) of Section 12, the register of lands prepared under Sub-section (2) of Section 9 and the statement of principles prepared under Sub-section (3), (4), (5) and (6) of Section 10, pertaining to the units concerned are to re-published in the manner prescribed and any person may within twenty days of such re-publication file objection before the Asst. Consolidation Officer in respect thereof disputing the correctness and nature of entries in the register of lands or in the statement of principles, if cause of action for such objections has arisen after publications of the register of lands and the statement of principles under Sub-section (1) of Section 10. Section 10-D of the Act gives special power to the Deputy Director of Consolidation for republication of the registers of lands if he is satisfied that large number of raiyats or under raiyats could not avail the opportunity to file their objections under Sub-section (2) of Section 10 of the Act after recording reasons in writing and any person may within twenty days of such re-publication; file before the Assistant Consolidation Officer objection in respect thereof disputing the correctness of entries in the register of lands or in the statement of principle or in both, notwithstanding the provisions of section 10-A.
14. Under Section 10-B the provisions of Sub-section (2), (3), (4), (5), (6) and (7) Section 10 are to be applied mutatis mutandis to the objection of any matter raised under Sections. 10-C and 10-D, but imposes restriction in re-opening the dispute decided earlier in accordance with the provisions of Sub-section (3), (4), (5), or (6) of Section 10 on re-publication of registers of land or the statement of principle or both. Section 11 of the Act lays down the manner in which the draft scheme shall be prepared and Section 12 of the Act provides for publication of draft of consolidation scheme. At this stage again an opportunity is given to the raiyat but subject to the bar under Section 10-A to file an objection within thirty days disputing the propriety and correctness of the entries in the draft consolidation scheme or obstructs furnished therefrom. Section 12A of the Act provides the manner in which the objections received are to be disposed of after the expiry of the period specified in Section 12. The said provision also provides for a remedy to the aggrieved person for filing an appeal before the Asst. Director of Consolidation within thirty days against the decision taken under Section 12-A. Section 12-B empowers the Consolidation Officer or the Assistant Director of Consolidation to direct the Consolidation Officer or the Asst. Consolidation Officer to review the draft scheme in which he is satisfied that proper allotment of land to the raiyat or the under-raiyat is not possible without revision the draft scheme after recording reasons in writing and after giving opportunity to various raiyats. Section 13 of the Act empowers the Assistant Director of Consolidation to confirm the scheme submitted before him if no objections is filed against the draft scheme under Section 12 or if the objections are filed and disposed of under Section 12-A and then to publish the confirmed draft publication scheme in the village.
15. From the aforementioned provisions, it is evident that except in the cases covered by Section 10-B, 10-C, 10-D and 12-B and the manner provided therein with respect to allotments made under Section 11 not modified under Section 12-A and confirmed under Sub-section (1), the entries in the extract under Sub-section (1) of Section 12 are to be treated as final allotment orders for the raiyats and under-raiyats concerned under Sub-section (3) of Section 13 of the act and under Section 14 of the Act the Consolidation Officer is to fix the date with effect from which the final consolidation scheme is to come into force and shall modify the same in the unit in the prescribed manner, whereafter the raiyat or under-raiyat shall be entitled to possession of the plots allotted to him and for the trees etc. shall be liable for payment to the former raiyat thereof amount, determined in the manner prescribed. Section 15 relates to grant of certificate of transfer and under Section 16 the confirmed scheme is to be treated as final public record of rights.
16. Thus, except in the case covered by Section 10-B, l0-C and 10-D, which all deal with the situations notwithstanding the bar imposed under Section 10A, no objection with respect to any entry made in the map or registers prepared can be raise at any subsequent stage of the consolidation proceeding before any other authority. There cannot be any doubt that under revisional power the Director of Consolidation can call for and examine there cord of the case decided or any proceeding taken for the purpose of satisfying himself as to the regularity of the proceeding or as to correctness or legality of any order passed by such authority in the case or proceeding. But the said power cannot extend to even include to entertain revision after the stage when under different provisions of the Act an order/revision has been treated to be final. As such, in my opinion, the revisional power under Section 35 has to be held to be part of the consolidation proceeding. In view of the law laid down by the Apex Court in the case of Ramdular v. Dy. Director of Consolidation, Jaunpur and Ors. (supra) in considering the correctness, legality or propriety of the order or correctness of the proceeding or regularity thereof, the Director cannot assume to itself the jurisdiction of the original authority as fact-finding authority, by appreciation for itself of the fact de novo, meaning thereby that the decision of the Consolidation authorities with respect to the entries made pursuant to Section 10 (2), 10-B, 10-C, 10-C and 12-B in the register of land prepared under Section 9 and 9-A of the Act shall be final, and the revisional authority under Section 35 of the Act at best is to only test as to regularity of the proceeding or as to the correctness, legality or propriety of an order passed by such authorities. But in no case to either assume to itself power/jurisdiction of the original authority as a fact-finding authority by appreciating for itself of the facts de novo.
17. It is difficult to construe that the provision of Section 35 vest wide power in the Director of Consolidation to exercise the powers of various authorities. if the power of the Director under Section 35 of the Act is construed to be so wide as is contended by the learned Counsel for the respondents, it would amount to giving him sanction to usurp the jurisdiction of the original authority as a fact-finding authority by appreciating for itself all the facts de novo, even though is completely barred by Section 10-A of the Act. In fact, Section 35 of the Act does not contain any non-obstante clause like the one contained in Section 10-D, nor does it deal with any changed circumstances, as contemplated under Section 10-B, 10-C, 10-D and 12-B of the Act. There being no non-obstante clause in Section 35, it is difficult to infer that the legislature purported to give such a wide power in the Director of Consolidation to ignore any bar or limitation provided for filing objection, appeal, etc. at different stages and to give it an overriding affect even on Section 10-A providing bar from raising any objection at any subsequent stage of proceeding, if not raised within the stipulated time. Any other interpretation would, in my opinion, lead to absurdity, inasmuch as under such circumstances, the consolidation scheme shall never come to an end and even after long lapse of finality of a consolidation proceeding an objection can be raised directly before the Director in revision, which can be entertained by the Director in the garb of revisional power. This, in my opinion, cannot be the intention of the legislature. In my opinion, the object of Section 35 of the Act is to empower the Director of Consolidation to see that the subordinate courts are not acting arbitrarily and illegally in exercise of their jurisdiction but not to assume to itself the jurisdiction of the original authority as ** fact-finding authority by appreciating for itself at the fact de novo, as has been held by the apex court in the aforementioned case of Ramdular (supra) whereafter the aforementioned Division Bench judgment of this Court are per incurium.
18. I am quite conscious of the suo motu power under Section 35 of the Act vested in the revisional authority. I am also conscious that for the exercise of the suo motu power the bar and limitation will not come in the way for allowing to perpetuate illegality and miscarriage of justice. A reference may be made in this connection to the decision of the Supreme Court in the case of Delhi Municipality v. Girdhari Lal Sapuru, reported in 1981 Crl. Law Journal 632. As such, the limitation of thirty days prescribed in the Rules under Rule 28 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Rules, 1958, for filing an application under Section 35 of the Act may not come in the way of the Director exercising suo motu power under the said provisions even after the expiry of the aforesaid limitation. But, in my opinion, this proposition cannot have any bearing on Section 10-A of the Act which completely bars from raising or hearing any objection with respect to the entry made in the map of register prepared under Section 9 or the statement of principle prepared under Section 9-A relating to the Consolidation area, which might or ought to have been raised under Section 10 but has not been raised, at any subsequent stage of the Consolidation proceeding.
19. The word 'consolidation' defined in the Act and as per its definition it includes re-arrangement of parcels of land comprised in holding or in different holding for the purpose of rendering such holdings more compact. The word 'proceeding' as per the Chambers English Dictionary means 'going forward, progress, advancement' a course of conduct, etc. In my opinion, the power of revisional authority under Section 35 is a stage-going forward in the matter of re-arrangement of parcels of land comprised in a holding or in different holdings for the purpose of rendering such holdings more compact and the said power cannot be held to be not a stage of the consolidation proceeding. In the aforementioned case before the Supreme Court, there was no provision like Section 10-A under consideration, which completely debars any person from raising objection with respect to final entry made and against which no objection is raised and, further, oust the jurisdiction of any authority under the Act from hearing such objection at any subsequent stage of consolidation proceeding.
20. An argument was advanced on behalf of the respondents that the respondent will suffer grave injustice if the provision contained in Section 10-A is construed to bar the jurisdiction of revisional court also inasmuch as they will have to abide by the decision of the consolidation authorities, who, by legal fiction have been vested with the jurisdiction of civil court of competent jurisdiction while hearing objections, or appeals or deciding the disputes. I do not find any substance in the submission of the learned Counsel for the respondents. Even assuming that has been submitted by the learned Counsel for the respondents, is correct, yet the Director cannot be held to have jurisdiction to even deal with the matter for which all the authorities under the Act at any subsequent stage of proceeding are debarred under Section 10-A.
21. From reading of the various provisions of the Act, to me it appears that the sole object of the legislation is to provide for the consolidation of holdings and prevention of fragmentation. Under Section 3 of the Act the area is notified for consolidation operation. In course of that if any dispute with respect to right, title and interest arises, then to determine the same and until then the jurisdiction of all courts or authority, either of the first instance or the appeal, reference or revision is excluded, except a proceeding under Section 4-B of the Bihar Tenancy Act and the proceeding relating to recording of titles of Bataidars and such sits or proceedings are to abate. But, in my opinion, effect of abatement under Section 4-C of the Act is to remain in operation only till the final publication and confirmation of scheme under Section 16 read with Section 13 of the act, as is also evident from Section 4 itself which provides that such abatement is to operate only from the date specified in the notification published under Sub-section (1) of Section 3 till close of the consolidation operation and not for all time to come.
22. Section 13 deals with confirmation of the draft consolidation scheme. Section 16 prescribes that after the certificates of transfer have been granted to the raiyats and under-raiyats, under Section 15, the scheme confirmed under Section 13 shall, in supersession of the up-to-date record of right prepared under Section 8, shall be deemed to be the record of rights prepared and finally published under Chapter X of the Bihar Tenancy Act, 1885. The record of right prepared under Chapter X of the B.T. Act does not conclusively establish the right and title of the recorded tenant and the same is rebuttable before a competent court of law.
23. Section 26-A of the Consolidation Act, which provides for close of the consolidation operation, does not create any bar on the aggrieved party to file a suit before a court of competent jurisdiction, after the publication confirming the scheme under Section 16 of the Act. Section 26A of the Act reads as follows:
26-A. Close of the consolidation operation--(1) As soon as may be, after fresh maps and records have been prepared and certificates of transfer have been issued to the raiyats under the scheme, the State Government shall issue notification in the Official Gazette stating that the consolidation operations have been closed in the unit:
Provided that the issue of notification under this section shall not effect the powers of the State Government to fix, distribute and recover the cost of operation under this Act.
(2) Notwithstanding anything contained in Sub-section (1), any order passed by a court of competent jurisdiction in case; or writ filed under the provisions of the Constitution of India, or in cases or proceedings pending under this Act on the date of issue of the notification under Sub-section (i) shall be given effect to by such authorities as may be prescribed and the consolidation operations shall for that purpose be deemed to have not been closed.
24. From reading of the provisions contained in Sub-section (2) of Section 26A, which starts with non-obstante clause it is clear that any order passed by the Court of competent jurisdiction even after close of the consolidation operation under Sub-section (1) are to be given effect to by such authority as may be prescribed and the consolidation operation for that purpose be deemed to have not been closed. In view of the provisions contained in Section 8 of the Act read with Chapter X of the B.T. Act the decision taken under the Act does not conclusively establish the right and title of the recorded tenant and the same is rebuttable before a competent court of law. Thus, in my opinion, there cannot be any doubt that aggrieved party will be at liberty to file a suit before a court of competent jurisdiction for adjudication of their right, title and interest even after the final publication of record of rights under the Act.
25. Section 37 of the Act provides that no civil court shall entertain any suit or application to vary or set aside any decision or order given or passed under this Act with respect to any other matter for which a proceeding could or ought to have been taken under this Act. The expression 'with respect to any other matter, for which a proceeding could or ought to have been taken under this Act' makes the intention of the legislature clear that the bar created under Section 37 cannot be held to be so wide and sweeping in nature to embrace all types of suits relating to title and other allied matters, which the authorities under the Act have declined by taking into consideration the prima facie title of the parties for the purpose of preparing record of rights as in also evident from the provisions relating to abatement of the proceeding on the date of notification and only till final publication of the record of right under Section 16 of the Act. The bar of jurisdiction of the Civil Court under Section 37 of the Act only relates to entertaining a suit or application to vary or set aside any decision or order given or passed under the Act for which a proceeding is maintainable under the Act itself and not to preclude the parties from filing a suit based on title challenging the entries made in the record or right published under Section 16 of the Act.
26. Sub-Clause (2) of Section 26-A, in my opinion, gives a remedy to aggrieved party to file a suit. In this connection, I consider it pertinent to mention that under Clause (3) of Section 103 of the B.T. Act every entry in the record of right published is to be presumed to be correct until it is proved by evidence to be incorrect. Section 16 of the Consolidation Act recognises the records of right prepared under the Act to be record of rights prepared under Chapter X of the B.T. Act of which Clause (3) of Section 103 is a part.
27. It is true that under Section 15 the certificate of transfer is conclusive proof of title of such raiyat to such holding and he shall be liable for payment of such rent as may be specified in the certificate, but under Section 16 record of right is to be prepared on the basis of the said certificates of transfer under Section 15 and confirmation of the scheme under Section 13 and the same is to be finally published under Chapter X of the Bihar Tenancy Act. I am also conscious that under Section 17 the raiyat has been vested with the same right in the land allotted to him in pursuance of the scheme of the consolidation as he had in his original holding and under Section 17-A he has right to possession of new holding, but the said title and right is rebuttable before a competent court of law in view of the provisions contained in Section 16. Only the aforementioned harmonious construction of Section 15, 16 and 17 can save the said provisions, otherwise they will have to be held to be conflicting with each other. By now, it is well settled that the courts should read different provisions of an Act in a manner that no part thereof is held to be superfluous or surplus and that where language of Statute leads to manifest contradictions the court must construe them on the basis of which the said provisions can survive.
28. The only bar imposed on any Court from passing any decree or order is in respect of any land included in any consolidation holding so as not to create or leave a fragment, as is provided under Sub-section (2) of Section 31. But on reading of Sub-section (2) of Section 26-A it is evident that the Court of competent jurisdiction can pass an order notwithstanding anything contained in Sub-section (1) of Section 26-A which provides for closure of the consolidation operation by issuing notification in the official Gazette and the same shall be given effect to be such authorities as may be prescribed and the consolidation operation shall, for that purpose be deemed to have not been closed. Thus, in my opinion, on reading of the provisions contained in Sub-section (2) of Section 26-A, Sub-section (2) of Section 3 and also Section 37 harmoniously, which bars jurisdiction of civil courts, the only interpretation, which would survive them is that a suit abated under Section 4, shall revive and a suit can be filed with respect to the entry in the record of right deemed to be published under Section 16, which is rebuttable before a competent court of law and any decree or order passed therein shall be given effect to by such authorities as maybe prescribed and the consolidation operation for that purpose shall be deemed to have been not closed and subject to Sub-section (2) of Section 31, so as not to create or leave a fragment in any consolidation holding.
29. Where a particular Act creates a right and provides a forum for enforcement of such right and bars a jurisdiction of civil court the ouster of jurisdiction of civil court is upheld. But the Supreme Court in the case of Saraswati and Ors. v. Lachanna, reported in 1994 (1) SCC 61, held that the situation will be different where the statute neither creates the right in question, nor provides any remedy or having created any right or liability no forum for adjudication of any dispute arising out of such right or liability is provided. In such a situation, the Supreme Court has held that the ouster of civil court's jurisdiction is not to be easily inferred. In the instant case it is true that Section 16 of the Act creates right, but that right is to be deemed to be one prepared and finally published under Chapter X of the B.T. Act, 1885 or Chapter XII of the Chotanagpur Tenancy Act, 1908 or Santhal Parganas Settlement Regulation 1872, as the case may be, which does not conclusively establish the right and title of the recorded tenant and the same is rebuttable before a competent court of law, as laid down in Full Bench decision of this Court in the case of Nand Kumar Rai and Ors. v. State of Bihar and Ors. reported in 1974 PLJR 27. Thus, the remedy/forum provided under the Act for adjudication of any dispute can, at best, be held only for the purpose of achieving its object and not to act as a civil court of competent jurisdiction, where for adjudication of such dispute detail procedures are prescribed under the Civil Procedure Code, Indian Evidence Act, Specific Relief Act, etc. This also finds support from the view of Division Bench of this Court comprising the Hon'ble G.B. Patnaik, the Chief Justice and Hon'ble B.B. Yadav. J, as they then were, in their recent decision in the case Junaid Khan v. State of Bihar and Ors. reported in 1995 (2) All PLR 531, in which their Lordships held that Section 37-A and 37-B of the Act postulate that the consolidation authorities are not full-fledged courts, but would be deemed to be courts for the purpose of deciding objections, appeals, etc. Accordingly, their Lordships held that the consolidation authorities are to be assumed as courts with competent jurisdiction with the help of legal fiction created by legislature, but in fact they are not courts and that the Consolidation Officer has to evolve his own procedure and the Indian Evidence Act has not been made applicable in terms. The court also held that the learned Single Judge was not justified in holding that the Indian Evidence Act would apply in letter and spirit.
30. Thus, the aforementioned interpretation only can protect the provision relating to bar of the jurisdiction to civil court, otherwise it would amount to denying a person of his right to get his legitimate right, title and interest established by a civil court of competent jurisdiction after following full trial in accordance with the law of the land, namely, Code of Civil Procedure, Indian Evidence Act, Specific Relief Act etc., which would be unconstitutional. A reference in this regard can be made to the decision of the Apex Court in the case of East Indian Corporation v. Sri Minakshi Mills, . It is true that the Supreme Court in the case of Sitaram v. Chhota Bhondey and Ors. reported in 1991 Supp. (1) Supreme Court Cases, 556, dealing with similar provisions contained in Section 49 of the U.P. Act providing for bar of the jurisdiction of the civil courts and revenue courts, held that said provisions to be wife and comprehensive, but having regard to the provisions contained in Section 16 of the Bihar Act, which provides that after the certificates of transfer have been granted to the raiyats and under-raiyats under Section 15, the scheme confirmed under Section 13, in supersession of upto-date record of rights prepared under Section 8 shall be deemed to be record of tight prepared and finally published under Chapter X of the Bihar Tenancy Act, or as the case may be Chapter XII of the Chotanagpur Tenancy Act or the Santhal Parganas Settlement Regulation 1872, which in view of the law laid down in the case of Nand Kumar Rai (supra) by the Full Bench of this Court the right and title of the recorded tenant arising there from in not conclusive and the same is rebuttable before a court of law.
31. Thus, in my opinion, it has rightly been contended on behalf of the petitioners that the case No. 38 of 1983-84 filed by respondent Nos. 5 to 7 purporting to be under Section 10-B in the facts and circumstances aforementioned, was not maintainable and that the said objection of respondent Nos. 5 to 7 was barred under Section 10-A of the Act. Accordingly, I hold that the impugned order passed by the Director of Consolidation, contained in Annexure-4 confirming the order passed by the Consolidation Officer, Dehri, cannot be sustained and the same is thus, quashed. The under of the Dy. Director of Consolidation, Rohtas, passed in appeal No. 74 of 1984-85 is hereby affirmed.
32. In the result, the writ application is allowed, but without costs.