Patna High Court
Shiv Kumar Thakur vs State Of Bihar And Anr. on 17 April, 1985
Equivalent citations: 1985(33)BLJR395
JUDGMENT Birendra Prasad Sinha, J.
1. The petitioner has challenged the orders contained in Annexures 1 and 2 passed by the Director of Consolidation in Revision Case No. 1060 of 1977 and the Deputy Director of Consolidation in Appeal Case No. 182 of 1976 respectively.
2. The main grievance of the petitioner relates to survey plot No. 238 in village Chatrri Pusas, Anchal Musahari in the district of Muzaffarpur. It appears that certain orders were passed by the Chakbandi Officer on 22-5-1976 under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act, in respect of plot Nos. 239 and 240. Plot No. 238 was not the subject matter of decision in that case. In appeal under Section 10 (6) of the Act the Deputy Director of Consolidation decided that plot No. 238 belonged to one Mossomat Sukani on which she had a house and Ban. He directed that the name of Mossomat Sukani be entered in the relevant records. It may be stated here that Mossomat Sukani was not a party before the Consolidation Officer but she filed an appeal before the Deputy Director of Consolidation in which the above order was passed, The petitioner filed an application under Section 35 of the Act challenging that the appellate authority could not have passed that order in favour of Mossomat Sakuni inasmuch as she was not a party before the Consolidation Officer and had not filed objection under Section 10 (3) of the Act and that plot No. 238 was not the subject matter of the objection under Section 10 of the Act. The revisional authority by order contained in Annexure 1 held that the revisional survey records in which the name of Mossomat Sukuni had been recorded had been corrected without notice under Section 108A of the Bihar Tenancy Act. In exercise of his power under Section 35 of the Act he held that Mossomat Sakuni had been recorded as Sikmidar in the revisional record of rights and was entitled to be recorded as such. The revisional authority has, therefore, affirmed the order passed by the appellate authority.
3. Mr. Vindhya Keshari Kumar learned Counsel appearing on behalf of the petitioner has submitted that neither the appellate authority nor the revisional authority could pass such an order in respect of plot No. 238 in absence of any objection filed by Mossomat Sakuni under Section 10 (3) of the Act. He relied upon a Bench decision of this Court in Jagarnath Thakur v. State of Bihar and Ors. (1984) B. B. C. J. 140. in which it was held that if no objection was taken under Section 10 of the Act then no objection could be taken subsequently. It was also submitted that the provisions of Section 35 of the Act cannot override the provisions contained in Section 10 of the Act and, therefore, in the facts and circumstances of this case even the revisional authority could not have passed by the impugned order under Section 35 of the Act.
4. Section 10 of the Act provides for publication of register of lands and settlement of principles and objection thereon. Within 45 days of the publication of the statement of principles prepared under Section 9A any person can file an objection in respect thereof before the Assistant Consolidation Officer disputing the correctness and nature of entries in the records or in the statement of principles under Section 10 (2) of the Act. Such objections are to be decided by the Assistant Consolidation Officer after hearing the persons interested. A person aggrieved by an order of the Assistant Consolidation Officer or Consolidation Officer under Sub-section (3), (4) or (5) of Section 10 may file under appeal before the Assistant Director of Consolidation under Section 19 (6) of the Act. It is true that in the present case it appears that no objection was filed by Mossomat Sukuni under Section 10 (2) of the Act before the Consolidation Officer but she filed an appeal under Section 10 (6) of the Act challenging the correctness of the entries in respect of plot No. 238. Learned Counsel for the petitioner may be right in his submission that no appeal lay before the Assistant Director of Consolidation under Section 10 (6) of the Act inasmuch as Mossomat Sukuni cannot be said to be an aggrieved person in respect of the orders passed by the Consolidation Officer, contained in Annexure 3. It may again be stated here that the Consolidation Officer has not passed any order in respect of plot No. 238 but I am unable to agree with the learned Counsel that such an order as contained in Annexure 1 could not be passed by the Director Consolidation under Section 35 of the Act. Section 35 of the Act reads as under-
35. Revision and reference.-The Director of Consolidation 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 record of any case decided or proceedings taken by 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 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.
From a reading of the provision contained in Section 35 it is clear that the Director of Consolidation either on his own motion or on the application of any party or on the reference being made by the subordinate authority may pass such order in the case or proceeding as he thinks fit after satisfying himself as to the regularity of the proceeding or as to correctness, legality or propriety of any order passed by the subordinate authority. The Consolidation Act is a welfare legislation and provides for the Consolidation of holdings and prevention of fragmentation of land. In the case of Ramrit Singh and Ors. v. The State of Bihar and Ors. 1979 B, B. C. 259. it was observed by me that the lethargic procedure involving inordinate delay could hardly meet the challenges of new social order and it has been replaced by quick acting procedures which were only too necessary, if the country was to attain new heights in the field of agriculture. This legislation was intended to wreck the vested interest in agriculture which wanted to maintain statutes quo. If, therefore, the Director of Consolidation found that there was any irregularity in the proceeding or for that matter any injustice was being done it was open to him to pass an appropriate order to further the cause of social economic justice.
5. So far the present case is concerned the revision application was filed by the petitioner before the Director of Consolidation under Section 35 of the Act. It came to his notice that the entries in respect of plot No. 238 had not been correctly made under the provisions of Section 9 of the Act because in the revisional records the name of Mossomat Sukuni had been entered as Sikmidar in respect of that plot. The order passed by the appellate authority was factually correct although he could not have passed that order Section 10 (6) of the Act. But once this matter came to the notice of the Director of Consolidation in revision he was perfectly within his rights to pass the impugned order contained in Annexure-1 directing to correct the entries which had been made in course of Consolidation proceeding. This was only in order to enhance the cause of justice.
6. In the case of Jagarnath Thakur (supra) a question had been raised that the power under Section 10A of the Act operates as a bar even on the power of the Director of Consolidation under Section 35 of the Act but this question had not been answered in that case. Mr. Kumar has submitted that Section 10A operates as a bar on the powers of the Director of Consolidation under Section 32 and if no objection had been raised at the earliest stage in respect of plot No. 238 by Mossomat Sukuni then the matter cannot be agitated before the Director and decided by him under Section 35 of the Act. I am unable to agree with the learned Counsel. In ray opinion although Section 35 has non-obstante clause it overrides Section 10 (a) of the Act. As stated earlier the Director under Section 34 of the Act can examine the regularity of the proceeding and the propriety of any order apart from its correctness and legality. Therefore, if at any point of time during the consolidation proceeding any irregularity has been committed or impropriety of any order is questioned he can interfere and pass necessary orders in the interest of justice. The Consolidation proceeding starts as soon as a notification under Section 3 of the Act is made. The statement of principles prepared under Section 9 A is published under Section 10 of the Act during the course of consolidation proceeding. Therefore, if there is any irregularity or impropriety in the preparation of statement of principles then notwithstanding that there is no objection the Director is, in my opinion, authorised to pass appropriate orders. I am, therefore, of the view that the provisions of Section 35 overrides Section 10 (a) of the Act.
7. After having considered the facts and circumstances of this case I am of the opinion that the order passed by the Director under Section 35 of the Act is just and proper and has been" passed in the interest of justice. I am therefore, not inclined to interfere with the orders contained in Annexures-1 and 2 in exercise of powers under Articles 226 and 227 of the Constitution of India as that will harm the cause of justice. The result is that this application fails and is dismissed but without costs.