Jharkhand High Court
Cholo Gope & Ors. vs State Of Jharkhand & Ors. on 29 June, 2011
Author: D.N.Patel
Bench: D.N.Patel
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1565 of 2008
1. Cholo Gope
2. Janki Gope
3. Khargu Gope @ Khargu Yadav
4. Prayag Gope
5. Indo Mahto
6. Jeeblal Mahto @ Jeeblal Yadav ... ... Petitioners
Versus
State of Jharkhand & Others ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE D.N.PATEL
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For the Petitioners: M/s V.Shivnath, Sr.Advocate
Bhaiya Nagendra Narayan, Advocate
Birendra Kumar, Advocate
Vipul Divya, Advocate
Niraj Kishore, Advocate
For the respondents: J.C. to S.C. (L & C)
Mr. Kalayan Roy
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04/Dated 29th June, 2011
1. Present petition has been preferred against an order, dated 19th
November, 2008, at Annexure 5 to the memo of this petition, passed by
the Commissioner, North Chottanagpur Division, Hazaribag in Misc.
Revision No. 158 of 2005, mainly for the reason that the Commissioner
has no power, jurisdiction and authority to pass the impugned order under
the provisions of Bihar Tenants Holdings (Maintenance of Records) Act,
1973 (hereinafter to be referred to as the 'Act of 1973').
2. It was further pointed out by the Counsel for the petitioners that
initially the land in question was allotted in favour of predecessor-in-
interest of the petitioners from the year 1954 onwards, which is an
admitted fact.
3. Respondent no. 7 to 15 preferred an application before the Circle
Officer Barhi, District Hazaribag for mutation of their names in the revenue
entries, which had been dismissed by the Circle Officer, Barhi vide order
dated 8th November, 1999 in Misc. Case No. 95/99-2000. The said order is
Annexure 1 to the memo of this petition, against which no appeal was
preferred and the said order attained its finality. It is further contended by
the counsel for the petitioner that respondent no. 7 to 15 preferred
2.
miscellaneous application before the Additional Collector, Hazaribag for
mutation of their names in the Revenue entries. Without there being any
power, jurisdiction and authority, the Additional Collector recorded the said
application preferred by respondent no. 7 to 15 as Misc. Case No. 26 of
2003 and has also decided it ex-parte in favour of these respondents vide
order dated 22nd December, 2004. The said order is at Annexure 3 to the
Memo of the petition. As the Additional Collector, Hazaribag has no
power, jurisdiction and authority, the present petitioner pointed out to the
said authority a correct provision of law and ultimately Additional Collector,
Hazaribag restored the order passed by the Circle Officer dated 8th
November, 1999 and the order passed by the same authority dated 22nd
December, 2004 was quashed and set aside or was reviewed totally. This
order was passed by the Additional Collector on 27th October, 2005 and
the application preferred by the petitioner was allowed mainly for the
reason that under law, i.e. 'Act of 1973', the Additional Collector had no
power at all to entertain the application preferred by the respondent nos. 7
to 15 and to decide it. Against this order, respondent no. 7 to 15 preferred
a Misc. Revision application no. 158 of 2005 before the Commissioner,
Hazaribag, which is allowed vide order, dated 19th February, 2008
(Annexure 5 to the memo of the petition), which is the impugned order in
this writ petition. It is further contended by the counsel for the petitioner
that under section 14 of 'Act of 1973', Circle Officer, Hazaribag is
empowered to pass an order for mutation of the applicant's name in the
revenue entries. If anybody feels dissatisfied and aggrieved by such
order, he can prefer an appeal under section 15 of 'The Act of 1973'
before the court of Land Reforms Deputy Collector and upon the order of
the court of the L.R.D.C., revision is tenable at law before the Collector
under section 16 of the 'Act of 1973'. In view of the aforesaid provisions of
law, both Additional Collector and Commissioner of Hazairbag had no
power, jurisdiction and authority to decide the applications preferred by
respondent no. 7. to 10. Whenever, there is a statutory appeal provided by
the law, which is to be preferred within 30 days, there ought to be an
appeal with a delay condonation application. In the present case, if the
respondent nos. 7 to 15 were aggrieved by the order passed by the Circle
Officer dated 8th Novemer, 1999 ( Annexure 1 to the memo of the petition),
they ought to have preferred an appeal with a delay condonation
3.
application before the court of the L.R.D.C. In the present case, neither
there is such appeal nor there is any delay condonation application nor
any order of the court of LR.D.C. Despite these facts, the Commissioner,
Hazaribag entertained revision application preferred by the respondent no.
7 to 15 and hence the order passed by the Commissioner, Hazaribag in
Misc. Revision No. 158 of 2005 dated 19th February, 2008, at Annexure 5
to the memo of this writ petition, deserves to be quashed and set aside.
3. Counsel for the petitioners has relied upon the decision, reported by
the Hon'ble Patna High Court, reported in 2003 (2) P.L.J.R.431 and has
pointed out that as per the Division Bench of the Patna High Court, appeal
ought to have been decided by the Collector of the district only and not by
the Additional Collector. It is further submitted by counsel for the petitioner
that even if the application preferred by respondent no. 7 to 15 had been
treated as an appeal with incomplete memo without any delay
condonation application (which is presumed to have been done) then also
the Additional Collector had no power, jurisdiction and authority to decide
an appeal under the provisions of the 'Act of 1976', especially under the
provisions of section 15 thereof, and this aspect of the matter has not
been properly appreciated by the Commissioner, Hazaribag, while
deciding the revision application and therefore, the impugned order, dated
19th February, 2008, at Annexure 5, passed by the Revisional authority, in
Misc. Revision No. 158 of 2005 deserves to be quashed and set aside.
4. Counsel appearing for the contesting respondent no. 7 to 10 mainly
submitted that no illegality has been committed by the Commissioner in
passing the impugned order. The Additional Collector has all power,
authority and jurisdiction to decide the application of respondent no. 7 to
15 because as per section 2(c) of the 'Act of 1973' the Collector is defined,
which includes Additional Collector and it is further contended by the
counsel for the respondent no. 7 to 15 that the names of the respondent
no.s 7 to 15 were already there in the revenue entries from 1961 onwards
and therefore, order passed by the Circle Officer, Barhi, Hazaribag dated
8th November, 1999 has rightly been quashed and set aside by the
authorities below. Counsel for the respondent no. 7 to 10 has also relied
upon a decision reported in AIR 1980, Patna 64 and submitted that
Additional Collector's order can not be reviewed by the Additional
Collector himself and hence the order passed by the Additional Collector
dated 27th October, 2005, at Annexure 4 to the memo of the petition, has
4.
rightly been set aside and quashed by the Commissioner, Hazaribag while
allowing the application of the respondent no. 7 to 15 by order dated
19.2.2008and hence this petition deserves to be dismissed.
5. Counsel for the State submitted that respondent no. 7 to 15 preferred neither any appeal nor any delay condonation application and therefore, the order, dated 22nd December, 2004, at annexure 3, passed by the Additional Collector in favour of respondent no. 7 to 15 was incorrect and as per the provisions of section 15 of 'The Act of 1973' there ought to have been an appeal preferred by the respondent no. 7 to 15 against the order of the Circle Officer be the L.R.D.C..
6. After hearing counsel for both the sides and looking to the facts and circumstances of this case, I hereby quash and set aside the order passed by the Commissioner dated 19th February, 2008 in Misc. Revision No. 158 of 2005, mainly for the following facts and reasons.
I. It is alleged by counsel for the petitioner that name of one Shri Bihari Mahto was already mutated in the revenue entries from the year 1950 and the petitioners are the legal heirs of Bihari Mahto. Thus, the name of the predecessor in title of the petitioner was in the revenue records of the lands in question since 1950.
II. Respondent no. 7 to 15 preferred an application before the Circle Officer,Barhi, Hazaribag for mutation of their names in the revenue entries for the land in question. The Circle Officer, after hearing both the parties, dismissed the application preferred by respondent no. 7 to 15 vide order dated 8th November, 1999 (annexure 1 to the Memo of the petition). It is an admitted fact by the counsel for both the sides that against this order, dated 8th November, 1999, (at annexure 1 to the memo of this petition) of the Circle Officer, which is passed under section 14 of the Bihar Tenants Holdings(Maintenance of Records) Act, 1973, no appeal was preferred. III. It further appears from the facts of the case that respondent no. 7 to 15 preferred an application before the Additional Collector, Hazaribag, which is treated by the Additional Collector, Hazaribag as Misc. Case No. 26 of 2003, thereby committing the first error. In fact, Additional Collector has no power, jurisdiction and authority to treat this application as a Miscellaneous case against the order of the Circle Officer because under the provisions of section 15 of the Act, 1973, appeal is provided before the Court of L.R.D.C. against the order passed by the Circle Officer. Once this error is committed by the Additional collector of recording that application 5. preferred by the respondent no. 7 to 15 as a misc. case, overlapping error had been committed by him by deciding the same in favour of the respondent no. 7 to 15, vide order dated 22nd December, 2004, (annexure 3 to the Memo of the petition).
IV. The petitioner came to know about this ex-parte order and pointed out to the Additional Collector in writing that the said authority has no power, jurisdiction and authority to review the order passed by the Circle Officer, Barhi, Hazaribag. After provisions of law have been pointed out to the Additional Collector, wisdom prevailed upon him and he restored the order, dated 8th November, 1999, passed by the Circle Officer. This wisdom is reflected in the order, dated 27th October, 2005, annexure 4 to the memo of the petition, passed by the Additional Collector. Being aggrieved by this order passed by the Additional Collector (as no power of review lies with the Additional Collector himself, as stated by the counsel for the respondent no. 7 to 15), they preferred a revision application, bearing no. 158 of 2005, before the Commissioner, Hazaribag and without appreciating the fact that Additional Collector had no power in absence of any appeal being filed with a delay condonation application and without appreciating the fact that any order passed without authority of law is a void order, the Commissioner allowed the revision application preferred by the respondent no. 7 to 15, vide order dated 19th February, 2008, annexure 5 to the memo of the writ petition. Commissioner, Hazaribag has also lost sight of the provisions of the 'Act of 1973', i.e. under section 15 of the 'Act of 1973', Circle Officer's order can be challenged by way of an appeal in the court of L.R.D.C. only and the order passed, under section 15, by the court of L.R.D.C. can be challenged by way of a Revision Application before the Collector under section 16 of the 'Act of 1973'. This aspect of the matter has not been properly appreciated by the Commissioner, Hazaribag . Even counsel for the respondent no.s 7 to 15 admitted the fact that they have never preferred any appeal, much less an appeal with a delay condonation application, as provided under section 15 of the 'Act of 1973'. In view of these facts the order passed by the Commissioner, Hazaribag deserves to be set aside. The Additional Collector could rectify his order because he has committed an error. When an authority has passed an order with no authority of law, the order can be corrected or modified by the same authority. In this case neither any 6. appeal was preferred nor any delay condonation application was preferred and the Additional collector treated the application preferred by respondent no. 7 to 15 as a Misc. Case No.26 of 2003 and decided as if an appeal was preferred. Therefore, the order passed by the Additional Collector, dated 22nd December, 2004, is absolutely against the provisions of the 'Act of 1973' and therefore, it is correctly modified by him by order, dated 27th October, 2005, (annexure 4 to the memo of the petition), even otherwise also the order, dated 22nd December, 2004, passed by the Additional Collector, was incorrect in view of the decision rendered by the Hon'ble Patna High Court in Kapildeo Singh & Others Vs. The State of Bihar & Others reported in 2003 (2) PLJR 431, Paragraph 10, 11 and 12 of which reads as under :
"10. Before proceeding to consider the question which has been referred to the Division Bench, it is to be stated that the powers of appeal and revision are statutory in nature and unless they are conferred by the statute, no authority has inherent power of revision or appeal. Under the statutory provision, if power is vested with a particular authority, then that power has to be exercised by that authority and not by any other authority unless by a statutory provision power has been conferred on the other authority by including that authority in the definition clause. A bare reading of the provision of section 16 of the Act shows that the word used in section 16 is not the Collector as defined in section 2(c) of the Act but it provides that the revision will lie before the Collector of the district. The legislature with the clear intention has provided this power to be exercised by the Collector of the district itself and by no other authority. Thus, the view taken in the aforesaid two cases as well as in the case of Most. Babuni Devi Vs. State of Bihar, 1997 (2) PLJR 404 taking the same view, lays down the correct law.
11. Even according to section 2(c) of the Act the Collector includes Additional Collector etc. as provided therein provided there is notification under the provisions of the Act specially authorising them to discharge all or any of the functions of the Collector of the district. In absence of empowerment by notification they cannot discharge the functions of the Collector 7. of the district with regard to any matter. Nothing has been brought on record to show that any notification has been issued specially empowring the Additional Collector to exercise all or any of the functions of the Collector under the Act.
12. Thus, in our view the revision will lie only before the Collector of the district and as the revision application was filed by the respondent no. 6 before the Additional Collector who has no power to decide the matter, the order passed by him, as contained in Annexure 2, is without jurisdiction and the same is quashed. Taking into consideration the facts of this case, instead of directing respondent no. 6 to file fresh revision before the Collector, we direct that the revision application filed by the respondent no. 6 before the Additional Collector, East Champaran, Motihari, should be transferred to the court of Collector, East Champaran, Motihari, who will dispose of the same under section 16 of the Act."
7. In view of the aforesaid decision, the revision under section 16 can be decided by the Collector of the District only and not the Additional Collector. Further, even if the application preferred by respondent no. 7 to 15 is treated as an appeal, the Additional Collector has no power or jurisdiction to decide it as under section 15 of the 'Act of 1973', appeal against the order of the Circle Officer can be preferred before the L.R.D.C. only and lastly the application preferred by the respondent no. 7 to 15 before the Additional Collector, even if treated to be an appeal, was without a delay condonation application and without condoning the delay, the so-called appeal could not have been decided. This aspect of the matter has also not been properly appreciated by the Commissioner, Hazaribag.
8. The contention is raised by the counsel for the respondent that any order passed by the Additional Collector can not be reviewed by the Additional Collector himself in view of the decision rendered by the Patna High Court reported in AIR 1980, Patna 64. Looking to the aforesaid decision, the judgment, cited by the counsel for the respondent no. 7 to 10, is about some dispute regarding settlement of fishery by the order of the Collector. That particular order settling some fishery, as it appears from the aforesaid decision, was purely administrative in nature and not a quasi-judicial one, while the dispute in the present case is entirely 8. different. In this case, there is a total want of authority under the law on the part of the Additional Collector to decide an appeal as the statutory appeal is tenable at law before some other authority and the Additional Collector has entertained and decided the appeal without any authority and that too without any delay condonation application. Thus, in the matter in question, there is total want of jurisdiction on the part of the Additional Collector, Hazaribag in passing an order dated 22nd December, 2004 (Annexure 3) in Misc. Case No. 26 of 2003. These facts make the present case different from the case cited by the respondent no. 7 to 15. The order, dated 22nd December, 2004, at annexure 3, more over, is passed ex-parte and when the correct law is brought to the notice of the said authority, order, dated 27th October, 2005, was passed by the Additional Collector rectifying the order, dated 22nd December, 2004. This aspect of the matter has not been appreciated by the Commissioner, Hazaribag, while he decided Misc. Revision No.158 of 2005 by passing order, dated 19th February, 2008. The revisional authority ought to have appreciated Section 14, 15 and 16 of the 'Act of 1973' in its true perspective. When appeal is wrongly decided by the Additional Collector by order, dated 22nd December, 2004, which has been subsequently, corrected by order dated 27th October, 2005, then, there was no need for the Commissioner, Hazaribag to entertain the revision application at all. In fact, the revision is not tenable at law because there is no appellate order.
8. As a cumulative effect of the aforesaid facts, reasons, judicial pronouncement and provisions of the 'Act of 1973', I hereby quash and set aside order, dated 19th February, 2008, passed by the Commissioner, Hazaribag in Misc. Revision No. 158 of 2005.
9. This writ petition is disposed of.
(D.N. Patel, J.) s.m.