Patna High Court
Ram Sigashan Pathak vs K.P. Sinha, Deputy Director, ... on 29 March, 1988
Equivalent citations: AIR1989PAT39, AIR 1989 PATNA 39, (1988) BLJ 912, 1989 BBCJ 48, 1988 BLJR 682
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER S.B. Sinha, J.
1. As a common question of fact and law arise for consideration in these writ applications, they were heard together and are being disposed of by this common judgment.
2. These writ applications involve a question as to whether the provisions of the Evidence Act apply in relation to a proceeding initiated under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to for the sake of brevity as 'the Act')?
3. For the purpose of deciding the question involved in these writ applications it is not necessary to state the facts in details. However, for a better appreciation of the point involved, the facts of the case as stated in the writ petition in C.W.J.C. No. 3226 of 1987 may be taken into consideration; It is admitted that the petitioner and respondent 4 are descendants of their common ansces tors. The genealogy of the family is as follows :--
Gopal Pathak | ___________________________________|______________________ | | | | Ram Narain Pathak Jai Mangal Pathak Ram Brit Pathak Ram Sohawari Pathak | | (died issueless) (died. 1934) | | | | | | | Mahadeo Pathak Widow Mr Bigna Kuer | | (died issueness) | | | Sheo Kumar Pathak | (Rest. No. 4) | |______________________________________________ | | Ramsighan Pathak Motiswara Devi (Petitioner) (daughter) According to the petitioner, he belongs to the branch of Ram Narain Pathak whereas respondent 4 belongs to the branch of Jai Mangal Pathak. After the death of their fathers, the petitioner and respondent No. 4 have been coming in cultivating possession of the lands in question having half share each, although they have been living separately. According to the petitioner, although no deed of partition was executed, there had been a partition by means of Khangi batwara in respect of the properties in question as a result whereof the petitioner and the respondent No. 4 had been cultivating the lands allotted to their respective shares to the extent of half and half. The petitioner has asserted that during the course of Revisional Survey operation, by mistake, the name of Mst. Bigna Kuer, who was merely a maintenance holder, was also recorded in the khatian in respect of the lands of two villages Tendua and Kurari along with the name of the petitioner and the respondent No. 4. According to the petitioner, however, no such entry was made relating to the lands situated in village Dhaw Pokhar. The petitioner has asserted that, in the year 1972 itself, a notification under Section 3 of the said Act was published in the Anchal covering the villages in question. The petitioner has further alleged that the respondent No. 4 with a motive to grab the property which was in the share of the petitioner obtained a fraudulent and illegal deed of gift executed by Mt. Bigna Kuer in his favour on the 30th June, 1973, when the Revisional Survey operation was at its final stage. The petitioner has challenged the aforementioned deed of gift executed by Mt. Bigna Kuer on the 30th June, 1973, inter alia on the ground that the said deed was obtained by practising a fraud upon her and also on the ground that the same was void as it was executed after the issuance of the notification under Section 3 of the Act without the permission from the competent authority and, as such, the same was void. According to the petitioner, even the lands in question which are the subject-matter of the aforementioned purported deed of gift have not been mutated in the name of the respondent 4.
4. As t here was an apprehension of breach of peace relating to a portion of the land a proceeding under Section 144 of the Code of Criminal Procedure was initiated and by an order dt. the 3rd Jan., 1978, the aforementioned proceeding was disposed of by the Sub-divisional Magistrate in favour of the petitioner. Thereafter, the respondent No. 4 filed a suit bearing Title Suit No. 107 of 1975 in the court of the Subordinate Judge, Sasaram, Rohtas, alleging partition of his two-
third share of the property on the basis of the aforementioned deed of gift alleged to have been executed by Mt. Bigna Kuer in his favour. According to the petitioner, in terms of Section 4(c) of the Act, the aforesaid Title Suit No. 107 of 1975 stood abated. The petitioner has further asserted that, on the intervention of some common well-wishers a registered deed of Taksimnama was executed on the 7th April, 1978, incorporating the terms of the oral and khangi batwara on the basis whereof the petitioner and the respondent 4 had been possessing their lands separately.
In the said deed of Taksimnama dt. 7-4-1978 the peititoner was the first party (farik No. 1) and respondent No. 4 was the second party (farik No. 2). The petitioner has further asserted that, however, muchafter the expiry of the period of limitation as contemplated under Section 10(2) of the Act, the respondent 4 filed an application before respondent 3 for opening of a khata of one-third share of Mt. Bigna Kuer in his favour with regard to the lands which were the subject-matter of the aforementioned deed of gift, details whereof are as follows : --
Mouza Khata Khesra Area Kurari 104 9 0.24 acre 10 0.56 "
1101.04 "112
0.30 "
Total 3.15 acres The respondent 3, after allegedly holding a local inspection and in pfesence of the members of the Village Advisory Committee, in terms of Section 10(7) of the Act rejected the claim of the respondent 4. In the said order, it was held that the petitioner was in actual possession of the lands of his ancestors to the extent of half. A copy of the said order dt. 7th Jan., 1984, is contained in Annexure-2 to the writ application.
5. The respondent 4 thereafter preferred an appeal being Appeal No. 1295 of 1983-84 and other appeals before the respondent 2 who, by his order dt. 8th Feb. 1985, allowed the said appeal, allegedly, without considering the documents filed on behalf of the petitioner. A copy of the said order dt. 8th Feb. 1985, is Annexure-3 to the writ application.
6. Thereafter, the petitioner preferred a revision application before the respondent 1 which was registered as Revision Case No. 656 of 1985 which was dismissed by an order dt. 14th May, 1987. A copy of the said order dt. 14th May, 1987, is Annexure-4 to the writ application.
7. The petitioner has alleged that after the hearing of the aforementioned case before the revisional authority (the respondent 1) was over, his counsel filed an application praying for time to file written arguments and other documents till 15th May, 1987, which was allowed and written argument was filed on 4th May, 1987. A receipt showing the documents filed by the petitioner is contained in Annexure-6 to the writ application, from a perusal whereof, it appears that the petitioner filed the aforementioned deed of taksimnama, a certified copy of the order passed by the Sub-divisional Magistrate under Section 144 of Cr.P.C, a certified copy of the deed of gift dt, 3rd June, 1973, a certified copy of the order in Title Suit No. 107 of 1975 which stood dismissed on 5th Aug., 1977, a certified copy of the order of the Consolidation Officer in case No. 46 of 1980 and rent receipts granted by the State of Bihar in his favour.
8. From a perusal of the order as contained in Annexure-4 to the writ application, it will be evident that the respondent No. 1 did not believe the case of partition and further held that, as in the year 1973, consolidation proceedings were not initiated, the deed of gift was a valid one. In para 4 of the said order, the respondent 1 observed that the petitioner hadnot adduced any evidence for the purpose of showing as to when Ram Sohawan Pathak died and under what circumstances the aforementioned Bigna Kuer became entitled to a right of maintenance only.
9. From a perusal of the impugned orders as contained in Annexures 2, 3 and 4 to the writ application, it is evident that neither the documents were proved nor the parties adduced oral evidence. The order of the Consolidation Officer (respondent 3) appears to be based on his local inspection and a perusal of some documents. From the order dt. 8th Feb., 1985, passed by the respondent 2 and as contained in Annexure 3 to the writ application, it appears that the appellate authority proceeded on the basis that the name of Mt. Bigna Kuer was entered in respect of two villages in the record of rights. The appellate authority has further on that basis held that the deed of gift executed by the aforementioned Mt. Bigna Kuer appears to be valid and further purported to have held that as theappellant (respondent 4) was not agreeable to possess the land in accordance with the partition, the purported deed of partition lost all its importance. He further held that the partition deed has also been executed without the permission of the Consolidation Officer.
10. From the facts aforementioned, it would be evident that various complicated questions of law and fact arose for consideration before the authorities in question. In terms of the scheme of the Act, the authorities are entitled to determine the said issues of fact and law. However, in my opinion, the following questions arose for consideration before the respondent 1, the respondent 2 and the respondent 3, determination whereof was dependent upon the evidence brought on the record before them. The said issues are : --
(a) Whether the aforementioned Bigna Kuer was entitled to a right of maintenance only or became an absolute owner in terms of Section 14(2) of the Hindu Succession Act, 1956?
(b) Whether the entry of the name of ML Bigna Kuer in the record of rights was correct?
(c) Whether there had been an actual partition by and between the petitioner and the respondent No. 4? And if so, whether the respondent No. 4 was bound thereby?
Admittedly, the impugned orders have been passed without giving any opportunity to the parties to adduce evidence and without bringing the documents legally on the record. The said Act was enacted to provide for the consolidation of holdings and prevention of fragentation.
In the case of Bettiah Estate v. Pushpa Devi, 1986 Pat LJR 222, the purpose and the scheme of the Act vis-a-vis Section 4(c) thereof has . been noted.
11. Section 2 of the said Act contains the definition of various words used in the said Act. Section 3 of the Act provides for power of the State Government to declare its intention to make a scheme for consolidation in the area by issuing a notification in. the official gazette with the object of effecting consolidation of holdings for the purpose of better cultivation of lands in any area. Section 4 of the said Act provides for the effect of the notification under Section 3 (1) of the Act.
Section 4 of the Act reads as follows :--
"4. Upon the publication of the notification under Sub-section (1) of Section 3 in the official gazette the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified in the notification-till the close of the consolidation operation,' ensue in the area to which the notification relates, namely-
(a) the district or part thereof, as the case may be, shall be deemed to be under consolidation operations and duty of preparing and maintaining the record of rights and the village map of each village shall be performed by the Director of Consolidation, shall prepare or maintain them, as the case may be, in the manner prescribed;
(b) no suit or other legal proceeding in respect of any land in such areas shall be entertained in any court, and in calculating period of limitation applicable to such suits and proceedings such period shall not be counted :
Provided that nothing in this clause shall apply to any proceeding under Section 48(E) of the Tenancy Act 1885 (Act 8, 1885) and to the proceedings relating to recording the titles of Bataidars;
(c) every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated;
Provided that if the State Government empowers any other officer appointed under this Act to dispose of any proceeding relating to survey settlement operations under the provisions of Chap. X of the Bihar Tenancy Act 1885 (Bihar Act VIII of 1885), or Chap. 12 of the Chotanagpur Tenancy Act, 1908 (Bengal Act 6, 1908) or Santhal Parganas Settlement Manual, 1872 (Manual 3, 1872) and transfer such proceeding to such officer for disposal, then the proceeding shall not abate or shall not be considered to have been abated:
Provided also that no such order shall be passed without giving to the parties notice by post or in any other manner that may be convenient and after giving them an opportunity of being heard :
Provided further that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in the said suits or proceeding before the appropriate consolidation authorities under and in accordance with the provision of this Act and the rules made thereunder :
Provided that the State Government may, by notification in the Official Gazette, exempt any such proceeding, suit, appeal, reference or revision or any class of them, if in its opinion their abatement is not in public interest, and is not necessary for the purposes of this Act :
Provided further that nothing in this section shall apply to any proceedings under Sections 144 to 148 of Chap. X of the Cr.P.C, 1973 (Act 2 of 1974) the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 (Bihar Act 28 of 1973) Section 48E of the Bihar Tenancy Act, 1885 (Act VIII of 1885) and the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Act XII of 1962)."
12. By reason of Section 4(c) of the aforementioned Act any suit or other proceeding abates. The effect of Section 4(c) is very far-reaching and wide in nature. Section 5 of the said Act prohibits transfer of any land after the date of publication of preparation of register of lands and statement of principles under Sub-section (1) of Section 10 in the notified area by way of sale, gift, exchange or partition without the previous sanction of the Consolidation Officer. Section 6 of the Act provides for procedure for sanction which reads as follows :--
"6(1) A person intending to transfer or partition any land shall make an application for sanction under Section 5 in the prescribed form and containing the prescribed particulars together with notices of the intended transfer or partition in the prescribed form and the process fee prescribed for the service therefor on the parties named in the application as well as for affixing copies therefor on the land, in the office of the Consolidation Officer and in such other places as may be prescribed.
(2) The Consolidation Officer shall fix a date for hearing and cause the notices specifying the date so fixed to be served on the parties named in the petition by registered post or in such other manner as may be prescribed and shall also cause copies of the notice to be affixed on the land and other places referred to in subjection (1).
(3) On the date fixed for hearing or on any adjourned date the Consolidation Officer shall, after hearing the parties and after such enquiry as may be necessary, pass such orders as he thinks fit :
Provided that the Consolidation Officer shall not. refuse sanction for transfer or partition of any land, except on any one of more of the following grounds, namely-
(a) the prescribed particulars have not been furnished;
(b) the transfer or partition is likely to interfere with the consolidation proceedings or to create a fragment; and
(c) the transfer or partition will be against any provision of this Act or any provision of the tenancy law for the time being in force in the notified area :
Provided further that sanction shall not be granted for the transfer of any land to any person, if after such transfer the total area of land held by him will exceed the maximum area that may be held by such person under any law for the time being in force in the notified area, (4) Any person aggrieved by an order of the Consolidation Officer, under Sub-section (3), may within thirty days of such order, prefer an appeal to the Assistant Director of Consolidation and such appeal shall be heard and disposed of in the prescribed manner and the decision of the Assistant Director of Consolidation, therein, shall be final."
13. Section 7 provides for Village Advisory Committee and Section 8 provides for preparation of up-to-date record of rights before consolidation. Section 9 provides for, preparation of register of lands. Section 10 of the Act is important which reads as follows :--
" 10(1). The Registers prepared under Subsection (2) of Section 9 and the statement of principles prepared under Section 9A shall be published in the manner prescribed and shall remain published for not less than 30 days.
(2) Any person may, within 45 days of the date of the publication of the register under Sub-section (1) file before the Assistant. Consolidation Officer objection in respect thereof, disputing the correctness and nature of entries in the records or in the statement of principles.
(3) The Assistant Consolidation Officer shall, after hparing the persons interested amd after such enquiries as may be necessary, decide the objection, settle the disputes or correct the mistake, as far as may be, by way of compromise between the parties appearing before him and pass orders on the basis of such compromise.
(4) All cases which are not disposed of by the Assistant Consolidation Officer under Subsection (3), all cases relating to valuation of plots and all cases relating to valuation of structures, tree, bamboo-clumps, well or other improvements for calculating the amount thereof, and its apportionment amongst co-owners if there be more owners than one, shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer who shall dispose of the same in the manner prescribed.
(5) Where objections have been filed against the statement of principles under Sub-section (2) of Section 10 the Assistant Consolidation Officer after affording opportunity of being heard to the parties concerned and after taking into consideration the view of the Village Advisory Committee, shall submit his report to the Consolidation Officer who shall dispose of the objections in the manner prescribed.
(6) Any person aggrieved by an order of the Assistant Consolidation Officer or Consolidation Officer under Sub-section (3), (4) or (5) may, within 30 days of such order, file an appeal before the Assistant Director of Consolidation, whose decision, except as otherwise provided by or under this Act, shall be final.
(7) The Consolidation Officer shall and the Assistant Director of Consolidation may, where necessary, before deciding an objection or an appeal, make local inspection of the unit, after giving due notice to the parties concerned and the Village Advisory Committee."
14. Procedures have been laid down as to how the draft scheme shall be prepared, published and revised; objections to be disposed of, revised draft scheme to be prepared and publication of statement of the scheme before the Director Consolidation and other matters. In terms of Section 15 of the said Act; the Consolidation Officer has been empowered to grant to every raiyat to whom a holding has been allotted pursuant to the scheme of consolidation a certificate in the prescribed form containing prescribed particulars. Section 15 of the Act reads as follows : --
"15(1). The Consolidation Officer shall grant to every raiyat to whom a holding has been allotted in pursuance of a scheme of consolidation a certificate in the prescribed form containing the prescribed particulars. Such certificate shall be conclusive proof of the title of such raiyat to such holding and he shall be liable for payment of such rent as may be specified in the certificate.
(2) A similar certificate of transfer shall be granted to every under-raiyat, whether having a right of occupancy or not in any land allotted to him in pursuance of the scheme and the certificate shall be conclusive proof of the title of such under-raiyat to such land and he shall be liable to payment of such rent and to such person as may be specified in the certificate."
Section 34 provides for delegation of power. Section 35 empowers the Director of Consolidation to call for and examine records of any case or proceeding taken by an authority inferior to him. Section 37 of the Act expressly bars the jurisdiction of the Civil Courts, which runs as follows : --
"37. No Civil Court shall entertain any suit or application to vary or set aside any decision or order given or passed under his Act with respect to any other matter or which a proceeding could or ought to have been taken under this Act."
In terms of Section 37A of the Act, the authorities under the Act shall be deer 3d to be courts. Section 37A of the Act reads as follows : --
"37A. Notwithstanding anything to the contrary contained in any other law for the time being in force the Director of Consolidation, the Deputy Director of Consolidation, the Assistant Director of Consolidation, the Consolidation Officer and the Assistant Consolidation Officer shall be deemed to be courts of competent jurisdiction while hearing objections or appeals or deeding disputes under this Act."
In terms of Section 37B of the Act, the authorities shall have the powers and privileges, vested in the Civil Courts in certain matters Section 37B of the Act reads as follows : --
"37B(1). The Directors of Consolidation, the Deputy Director of Consolidation, the Assistant Director of Consolidation, the Consolidation Officer and the Assistant Consolidation Officer shall have all such powers, rights and privileges while hearing any matter in dispute as are vested in a civil court in respect of the following matters, namely :--
(a) the enforcing of the attendance of witnesses and examining them on oath, affirmation or otherwise and issuing a commission to examine witnesses;
(b) compelling any person for the production of any document;
(c) punishing the persons guilty of contempt (2) A summon signed by such officer may be substituted for and shall be equivalent to any formal process capable of being issued in any action by a civil court for enforcing the attendance of witnesses and compelling the production of any document."
Section 40 of the said Act empowers the State Government to make rules.
The State of Bihar in exercise of its powers conferred under Section 40 of the Act framed rules known as the Bihar Consolidation of Holding and Prevention of Fragmentation Rules, 1958.
15. For the purpose of disposal of this application, Rule 6D(9), (10) and (11) are relevant which are quoted below : --
"(9)(a) The case received from the Assistant Consolidation Officer shall be entered in the register in Form XXV in the office of the Consolidation Officer;
(b) On the date fixed under Sub-rule (8) or any subsequent date fixed for the purpose the Consolidation Officer shall hear the parties, frame issues on the points in dispute, take evidence both oral and documentary and decide the objections;
(c) The notice which it may become necessary for the Consolidation Officer to issue to any person in connection with the disposal of a dispute by him shall be in Form XI-A.
(d) For deciding a dispute regarding valuation of a plot or tree, well or other improvement existing on a plot the Consolidation Officer shall make a local inspection of the plot concerned, prepare an inspection memo and place it on the connected file.
(10) The Amin shall note the orders of the Assistant Consolidation Officer and Consolidation Officer passed under Section 10 in the register of land. The Assistant Consolidation Officer shall check cent per cent of the entries to ensure that they have been correctly made.
(11) The Consolidation Officer or the Assistant Director of Consolidation, as the case may be, shall, when making a local inspection, of the unit under Sub-section (7) of Section 10, prepare an inspection memo and place it on the file containing his order."
16. From different provisions of the Act and the Rules as quoted hereinbefore, it is evident that the Act is a self-contained Code for the purpose of consolidation of agricultural lands within the State. Section 4(c) and Section 37 of the said Act indicate the intent and object of the legislature that the provisions of the Act alone would provide the forum for determination of all issues raised before the Consolidation Officers excluding the jurisdiction of all courts concerned. The extent of the jurisdiction of the Consolidation authorities in terms of the provisions of the said Act and consequent exclusion of the jurisdiction of the civil court or abatement of the suits pending before it in terms of Section 4(c) thereof has been the subject-matter of various decisions of this Court and, as such, the same need not be discussed once over again.
Reference in this connection may be made to the cases of Ram Krit Singh v. State of Bihar, 1979 BBCJ (HC) 259 : (AIR 1979 Pat 250) (FB), Bettiah Estate v. Pushpa Devi, 1986 Pat LJR 222, Hari Mohan Thakur v. Mahendra Narain Chand, 1987 Pat LJR 88 (FB) and Mirza Sulaiman Beg v. Harihar Mahto, 1985 Pat LJR 152 : (AIR 1985 Pat 227).
It has been held in the case of Zafar Khan v. Board of Revenue, AIR 1985 SC 39 that the settlement of land in villages putunder consolidation after the notification under Section 3 thereof cannot be questioned by a suitbef ore a civil court or other revenue, court. The jurisdiction of the authorities under the Consolidation Act extends to determination of the question of fraud (See 1986 PLJR 10) (sic) the validity of the sale deeds, etc.
17. In view of the wide power conferred upon the authorities under the Act, as noticed hereinbefore under Section 37A of the Act the Consolidation authorities are deemed to be Courts of competent jurisdiction. Thus, the legislature had created a legal fiction in favour of the authorities mentioned therein that they would be courts of competent jurisdiction while hearing objections or appeal or deciding the dispute.
18. The question which arises for consideration is as to what is the effect of the legal fiction so created. In East End Dwellings Co. Ltd. v. Finsbury Borough Council (1952) AC 109 at p. 132, Lord Asquith has laid down the effect of such legal fiction in these words : --
"If you are bidden to treat an imaginary state of affairs as real, your must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
The aforementioned decision has been followed by the Supreme Court in the State of Bombay v. Pandurang Vinayaka, AIR 1953 SC 244; Commr. of Income-tax v. Section Teja Singh, AIR 1959 SC 352 and Addl. Income-tax Officer v. E Alfred, AIR 1962 SC 663.
19. In Commr. of Income-tax, Bombay v. Bombay Trust Corn., AIR 1930 PC 54, the word 'deemed' was interpreted in the following terms : --
"When a person is 'deemed to be' something the only meaning possible is that whereas he is not in reality that something, the Act requires him to be treated as if he were."
This decision of the Privy-Council was cited with approval in K. Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687. The said decision has also been followed by a Division Bench qf the Allahabad High Court in Narain Bux Singh v. State of U. P., 1981 All LJ 649 and in Tirath Raj v. Director General of Police Lucknow, 1988 Lab IC 275.
20. From the afprementiqned decisions, it is evident that by a legal fiction the authorities under the Consolidation Act are deemed to be courts for all purposes including for the purpose of taking evidence in this regard. The aforementioned view is further supported by the fact that in terms of Section 37B of the Act the aforesaid authorties are vested with all powers, rights and privileges while hearing any matter in dispute as are vested in the civil courts inter alia in respect of the matters of examining the witnesses on oath and punishing the person guilty of con tempt.
21. The very fact that the authorities under the Act are empowered to examine witnesses after administering oath to them clearly shows that they are 'Courts' within the meaning of the Evidence Act It is relevant to refer to the definition of 'Court' under the provisions of the Indian Evidence Act as contained in Section 3 thereof which reads as follows : --
" 'Court' includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence."
In terms of Sub-section (7) of Section 10 of the said Act, the Consolidation Officer and the Assistant Director of Consolidation have been empowered to make a local inspection of the unit after giving due notice to the parties concerned and the Village Advisory Committee. In terms of Rule 6D(11) of the Act, the Consolidation Officer or the Assistant Consolidation Officer while making such local inspection is to prepare an inspection memo and place it on the file containing his order.
This power is akin to the power of a Civil Court contained in Order XVIII, Rule 18 of the Civil P.C.
22. Further, as noticed hereinbefore in terms of Rule 6D(9)(b), the Consolidation Officer is required to hear the parties, frame issues on the point in dispute and take evidence -- both oral and documentary --and decide the objections thereto. There, therefore, in my opinion, cannot beany doubt whatsoever that the authorities under the Act are also 'courts' within the meaning of the provisions of the Indian Evidence Act.
23. The definition of 'Courts' under the Indian Evidence Act is not exhaustive (See (1879) ILR4 Cal 483 (FB)). Although the said definition is for the purpose of the said Act alone, all authorities must be held to be courts within the meaning of the said provision who are legally authorised to take evidence. The word 'Court' under the said Act has come up for consideration at different times under the different statutes.
The Commissioner who has been authorised to take evidence of the witnesses has been held to be a court (See AIR 1954 Pat 289). The Rent Controller has been held to be a court (See AIR 1976 Andh Pra 270) and 1977 Cri LJ 1362 (sic). The Election Tribunals have been held to be courts See 1967 All LJ 5 at page 7. Coroners before whom evidence can be adduced have been held to be courts see (1969) 71 Bom LR 732.
In Brijnandan Sinha v. Jyoti Narain, AIR 1956 SC 66, it has been held that any Tribunal or authority whose decision is final and binding between the parties is a court. In the said decision, the Supreme Court, while deciding a case under the Court of Enquiry Act held that a court of enquiry is not a court as its decision is neither final nor binding upon the parties. In Virindar Kumar Satyawadi v. State of Punjab, AIR 1956 SC 153 the Supreme Court has made a broad distinction of a court and quasi judicial Tribunal. In the Sitamarhi Central Cooperative Bank Ltd. v. Jugal Kishore Sinha, AIR 1965 Pat 227,a Division Bench of this Court has held Assistant Registrars appointed under the Bihar and Orissa Co-operative Societies Act to be courts. In the said decision, this Court has held that, when a question arises as to whether the authority constitued under a particular Act exercising judicial or quasi judicial power is a court or not, then the following tests must be fulfilled before the said authority can be termed as a court : --
(a) the dispute .which is to be decided by him must be in the nature of a civil suit;
(b) the procedure for determination of such dispute must be judicial procedure; and
(c) the decision must be of a binding nature.
The aforementioned judgment has been affirmed by the Supreme Court in the case of Thakur Jugal Kishore Sinha v. Sitamarhi Central Co-operative Bank Ltd., AIR 1967 SC 1494. In Chandra Kishore Jha v. State of Bihar, 1975 BBCJ 656 : (1975 Cri LJ 1939), a Division Bench of this Court has held the Compensation Officer acting under the Bihar Land Reforms Act, 1950, to be a court as the said officer exercises judicial power deciding civil dispute and pass an order which is final and binding between the parties. In S. K. Sarkar, Member, Board of Revenue, U. P., Lucknow v. Vinay Chandra Misra, AIR 1981 SC 723, the Board of Revenue has been held to be a court subordinate to the High Court for the purpose of the provisions of the Contempt of Courts Act.
24. However, in the Bharat Bank Employees' Union, Delhi v. Union of India, AIR 1950 SC 188, it has been held that a 'Labour Court' although has all the trappings of the Court but still is not a court in technical sense. In Sakuru v. Tanaji, AIR 1985 SC 1279, the Supreme Court has held that the statutory authorities did not come within the purview of the definition of courts for the purpose of Section 5 of the Limitation Act. However, as noticed hereinbefore, so far as the authorities under the Act are concerned, not only they are to be taken as courts by reason of legal fiction created under Section 37A of the Act but alsobecause they undoubtedly have been discharging judicial functions in judicial manner and their decisions are final and binding on the parties. In Ram Krit Singh v. State of Bihar, 1979 BBCJ 259 : (AIR 1979 Pat 250), a Special Bench of this Court has held that after a suit is revived upon issuance of a notification under Section 26A of the Act, the Civil Courts are merely to pronounce judgments in accordance with the decisions of the consolidation authorities. As seen hereinbefore the scope and ambit of the power of the authorities under the Act are absolutely wide and by reason of the provisions contained therein, the nature of their functioning is judicial function. Not only the authorities are entitled to decide a case relating to title but are also entitled to determine serious disputes relating to fraudulent execution of documents and other complicated disputes of civil nature.
25. In terms of Section 37 of the Act, the jurisdiction of the civil courts in such matters is completely ousted. Under Section 15 of the Act, a certificate of transfer granted to every raiy at under the prescribed form would be a conclusive proof of the title of the said raiyat. As and when such certificate of transfer is granted the same cannot, thus, be chanllenged before any authority or court whatsoever. Such certificates will, therefore, have the force of a decree passed in a suit and would be binding on all other courts, namely, Criminal Courts, Revenue Courts, etc. Such decisions are also binding on civil courts.
26. Taking, therefore, into consideration all the aspects of the matter from all its ramifications, I am of the view that the authorities under the Act are courts within the meaning of the Indian Evidence Act and, as such, before delermining the issues involved in the case before them, they are bound to follow the provisions of the Evidence Act strictly.
27. From a perusal of the facts as mentioned hereinbefore, it is evident that the concerned respondents have not at all taken into consideration the provisions of the Indian Evidence Act. They have also not examined any witness for determining the issues in question nor the documents relied upon by them were legally brought on the record There cannot, therefore, be any doubt that, in passing the impugned orders the concerned respondents have committed infirmities in following the procedures required under the Act and the Rules. The said authorities, therefore, have misdirected themselves in law as their decisions are not in accordance with law.
28. In Dr. Hemchandra Jha v. Smt. Anjana Lal, 1987 Pat LJR 582, this Court has observed as follows : --
"7. What is meant "according to law"? "Judgment according to law is not invariably the same thing as judgment according to the merit of the particular case from which the judgment flows. The hall mark of judgment according to law is confirmity with a set of rules", Lord Devlin, Lord of Appeal in the book "The Judge". And what is meant by "a set of rules"?This means rulesdesigned so as to advance justice in a normal case. What are the rules applicable to the present case? As in this case we are concerned with a suit for eviction from a building filed by a landlord against the tenant besides others, the rules which shall apply are Code of Civil Procedure, Evidence Act and the Rent Act. If, therefore, there has been violation of any of the provisions of the procedure law which has resulted in miscarriage of justice or of any mandatory provision of the Rent Act or if the finding is perverse, La, not supported by evidence, it must be held that the order impugned is not "according to law".
Reference in this connection may also be made to the case of Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri, (1987) 3 SCC 538 at page 549 : (AIR 1987 SC 1782 at pp. 1787-1788).
29. In Ranjit Thakur v. Union of India, 1987 Pat LJR 79 : (AIR 1987 SC 2386), the Supreme Court quoted with approval the words of Frankfurter, J. in Vitarelli v. Seat6n (1959) 359 US 535 :-
"If dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed ..... This judicially evolved rule of adminis'trative law is now firmly established, and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword."
30. In view of the fact that the authorities have passed the orders without there being any legal evidence on the record, further the impugned orders must be held to be perverse being based on no evidence. ,
31. In the result, this writ petition is allowed and the orders as contained in Annexures-2, 3 and 4 are quashed. Let a writ of certiorari be issued accordingly. However, in the circumstances of this case, there shall be no order as to costs.