Patna High Court
Mostt. Rajwati Devi And Anr. vs The Joint Director, Consolidation, ... on 30 March, 1988
Equivalent citations: AIR1989PAT66, AIR 1989 PATNA 66, 1988 BLJR 698, 1988 BBCJ 787, (1988) BLJ 1069
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER S.B. Sinha, J.
1. Both these writ petitions involving common question of law and fact were heard together, with the consent of the parties, and are being disposed of by this common judgment.
2. In C.W.J.C. No. 5151 of 1987, the petitioners have prayed for issuance of a writ of certiorari for quashing of an order dt. 2-4/6-4-1987 as contained in Annexure-3 to the writ petition passed in Revision Case No. 3605 of 1986 and 75 of 1987.
3. In C.W.J.C No. 5152 of 1987 the petitioners have prayed for issuance of a writ of certiorari for quashing of the self-same order but the same is contained in Annexure 2 thereto.
4. The facts of the case lie in a very narrow compass.
5. In both these proceedings the , petitioners and the respondent 3 belonged to , a joint family. In the revisional survey : operation which was started in the year 1960 in the villages in question, the name of the petitioners and the concerned respondent were jointly recorded in respect of the lands in question.
6. It is alleged that the respondent No. 3 did not file any objection whatsoever in the said proceedings and as such the same became : final. The petitioners have contended that in terms of Section 10(A) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act (hereinafter referred to as 'the Act'), the entries made in the finally published record of rights cannot be questioned at any subsequent stage as the same attains finality.
7. However, the concerned respondent filed a petition before respondent 1 purported to be under Section 10(2) of the said Act whereby and whereunder allegedly a collusive survey report and a forged exchange document purported to have been signed by the parties were filed.
8. By reason of the impugned order the respondent No. 1 allowed the said application.
9. In these writ petitions counter-affidavits have been filed on behalf of the concerned respondents. In the said counter-affidavits the claim of the petitioners in respect of the land in question has been disputed and it has been asserted that the said respondent/respondents is or are entitled to the lands in question.
10. Learned counsel for the petitioners submitted that the respondent No. 1 had no jurisdiction to pass the impugned order ex parte and that too after a lapse of several years. It was further submitted that before passing the impugned order the respondent 1 did not take any evidence whatsoever.
11. It has further been contended that in view of the provision of Section 10-A of the said Act the respondent No. 1 could not have exercised his power conferred upon him under Section 35 thereof.
12. Assuming for the sake the argument that the respondent No. 1 had the jurisdiction to revise an order passed in terms of Section 10(2) of the said Act, it was incumbent upon him to pass the impugned order on the basis of some evidence legally brought on record
13. It has not been disputed at all that no evidence whether oral or documentary has been adduced. According to the learned counsel for the respondents some documents were filed before the respondent 1, on the basis whereof, the impugned order has been passed. It is now a well settled principle of law that the documents upon which reliance is sought to be placed must be brought on records of the case legally. It is also well settled that documents do not prove themselves. As no witness was examined on behalf of the respondent 3 for proving the aforementioned documents, there is absolutely no doubt that there has been a procedural infirmity committed by the respondent 1 in passing the impugned order.
14. In view of the order proposed to be passed by me it is not necessary to dwell upon the respective submissions of the parties. In C.W.J.C. No. 3226 of 1987, (Ram Singashan Pathak v. K. P. Sinha, Deputy Director, Consolidation) : (reported in AIR 1989 Pat 39) and analogous cases it has been held by this Court that the statutory functionary under the aforementioned Act including the respondent 1 are 'Courts' within the meaning of the provisions of the Indian Evidence Act and as such provisions of the Evidence Act apply in the proceedings before the said authorities.
15. Plainly enough the impugned order is not 'according to law' and is also perverse being based on no evidence. In this situation I have no other option but to allow this writ petition.
16. In the result these writ petitions are allowed and the respondent 1 is hereby directed to pass a fresh order in accordance with law after allowing the parties concerned to adduce evidence on their behalf.
17. The respondent 1 while purporting to act under Section 35 of the Act must consider the effect of Section 10-A thereof as it is well known what cannot be done directly, cannot be done indirectly.
18. However it goes without saying that , Section 35 of the Act by its nature confers a wide jurisdiction upon the revisional authority but the said jurisdiction has to be exercised primarily for the purpose of keeping the inferior authorities within the bounds of law. It may also be mentioned that such a wide power under Section 35 of the Act should be exercised with due care and caution.
19. In the result these writ petitions are allowed and Annexures 2 and 3 of the aforementioned writ petitions are hereby quashed but without any order as to costs.