Letters Patent Appeal No.547 OF 2001 ----- Appeal against the judgment and order 23.2.2001 passed passed by a learned Single Judge of this Court in C.W.J.C.No.1610 of 2000. ---- Ram Bahadur Choudhary son of Late Hari Chauhan Chaudhary, R/O Mohalla Chouar Takia, P.S.Sasaram, District-Rohtas— Appellant. Versus 1. The State of Bihar through Chief Secretary, Bihar, Patna 2. The Collector, Rohtas at Sasaram 3. The Land Reform Deputy Collector, Sasaram, 4. The Circle Officer, Chenari, Sasaram 5. The Joint Director Consolidation, Patna 6. The Assistant Director Rohtas at Sasaram 7. The Consolidation Officer, Chenari Camp, Sasaram-- -Respondents. ----- For the appellant : Mr. Kamal Nayan Choubey, Senior Advocate with Mr. Ambuj Nayan Choubey Advocate For the State : Mr. Shashi Bushan Kumar Standing Counsel No.16 Mr. J.P.Kishore, JC to SC-16 ----- P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE JYOTI SARAN Jyoti Saran,J. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna arises out of the judgment and order dated 23.2.2001 passed in C.W.J.C.No.1610 of 2000 (Ram Bahadur Choudhary Vrs. The State of Bihar and others), by a 2 learned Single Judge of this Court, whereby the writ application has been dismissed. 2. Facts involved in the present matter are rather brief. Issue relates to land measuring 3 acres and 9 decimals situated in Mauza Khuramabad, P.S.Chenari, thana No.18, District Rohtas, Old Khata No.107, Old Khesra No.1600 (New Khata No.559, New Khesra No.2843). The appellant-writ petitioner claims to be the nephew of one Shiv Chandra Mallah alias Shiv Chandra Choudhary. It is contended that the land in question which is a gairmajarua malik land was settled by the ex-landlord in favour of his uncle in the year 1941 by a Hukumnama. The said settlement was followed by deposit of rents and issuance of rent receipts and filing of returns. 3. It is stated that jamabandi was created after vesting of the Estate by reason of the Bihar Land Reforms Act, 1950 and the rules. The ex-landlord submitted his return in favour of the uncle of the appellant and on the basis of which, the name of his uncle was entered in Register-II and he used to make payment of the rents and the receipts were issued in his favour. It was stated that the family was in the state of jointness. An encroachment proceeding was also initiated, which was decided in favour of the 3 uncle of the appellant. 4. During the course of revisional survey, the land was incorrectly recorded in the name of the State of Bihar. However, as the consolidation proceedings in the State had commenced in the area, hence, the entire matter came under the scrutiny of the statutory authorities under the Bihar Consolidation of the Holdings and Prevention of Fragmentation Act, 1956, hereinafter referred to as the „Consolidation Act‟) and the rules framed thereunder. 5. It is contended that objection was filed by the appellant under Section 10(B) of the Consolidation Act for rectification of the error and correction of the names in the survey records of rights giving rise to Consolidation Case No.747/1982- 83, but the same was rejected vide order dated 6.10.1983. An appeal was filed on behalf of the appellant bearing Appeal No.745/1983-84 and the learned Assistant Director Consolidation, in exercise of his appellate powers upon considering all the materials available on record and after hearing the parties, was pleased to hold that the land in question had incorrectly been recorded in the name of the State of Bihar and that it should have been 4 recorded in the name of the appellant. Though objection was raised on behalf of the State that the said petition itself was hopelessly time barred before the Consolidation Officer but the learned appellate authority, taking into consideration that the appellant had filed an application for condonation of delay, was pleased to over rule the objection. The appellate authority categorically held the appellant to be in possession of the land in question having acquired valid right and title over the said land. The appeal was allowed and the impugned order of the Consolidation Officer, Chenari was set aside vide order passed on 13.8.1985 (Annexure-1 to the writ petition)). 6. The Circle Officer, Chenari, aggrieved by the order passed on 13.8.1985 (Annexure-1 to the writ petition) preferred a revision bearing Revision Case No.3747/86 under the provisions of Section 35 of the Consolidation Act, which was dismissed by order dated 31.12.1987 on grounds of non-prosecution (Annexure-2 to the writ petition). 7. It is contended that despite: (a) creation of jamabandi and entry in Register-II, (b) issuance of rent receipts earlier, and (c) crystallization of the issue vide orders passed by competent authorities 5 under the provisions of the Consolidation Act, the Circle Officer, Chenari, was refusing to accept the rent, which led to a second round of litigation under the Bihar Tenant‟s Holdings (Maintenance of Records) Act, 1973, (hereinafter referred to as „the Act, 1973‟). 8. The appellant challenged the action of the Circle Officer before the Deputy Collector Land Reforms, Sasaram giving rise to Misc.Case No.50/97- 98. The Deputy Collector Land Reforms, Sasaram, upon consideration of entire materials endorsed the orders passed in the proceedings arising out of the Consolidation Act. He upheld the creation of jamabandi and rent receipts issued pursuant to the said orders. It was held that the action of the Circle Officer in putting restraint over the acceptance of the rent and issuance of receipts was illegal. The learned Deputy Collector Land Reforms, Sasaram with reference to the over-riding effect of the Consolidation Act, has further held that the Circle Officer ought to have taken legal opinion in the matter before taking such action which was not in accordance with law. The objection raised by the Circle Officer was set aside vide order dated 6.9.1997 (Annexure-3 to the writ petition). 6 9. The Circle Officer filed a revision application under the provisions of the Act, 1973 before the Collector, Rohtas, who was pleased to hold that the entire proceedings conducted by the statutory authorities under the Consolidation Act was without jurisdiction and the entry of the land in question in the survey records in the name of the Government of Bihar was correct. He has further held that the Director, Consolidation had passed the order without consideration of the issues and the order had been passed in excess of jurisdiction. The order of the learned Deputy Collector Land Reforms was set aside vide order dated 30.11.1999 (Annexure-4 to the writ petition), which had the effect of nullifying the orders passed by the statutory authorities under the Consolidation Act. 10. Aggrieved by the said order dated 30.11.1999 (Annexure-4 to the writ petition) of the Collector, Rohtas, the appellant preferred the writ petition in question bearing C.W.J.C.No.1610 of 2000, which was dismissed by the impugned order giving rise to the present appeal. 11. Mr. Kamal Nayan Choubey, learned counsel appearing on behalf of the appellant, while assailing the order of the learned Single Judge, contended that 7 a serious error had been committed by the learned Single Judge in dismissing the writ petition even while holding that the authorities should not sit over the direction of the competent authority nor could annul the same. 11.1. Mr. Choubey submitted that the Collector not being an authority under the scheme of the Consolidation Act had no jurisdiction to nullify any order passed under the provision of said Act and hence, the impugned order suffered from the vice of „Corum Non Judice‟. 11.2. It was next submitted that the order passed by the Collector was wholly without jurisdiction as he was not a forum under the scheme of the Consolidation Act. 11.3. It was submitted that even a right decision by a wrong forum is without jurisdiction. In support of his submission, Mr. Choubey relied upon a judgment of the Supreme Court in the case of Pandurang Vs. State of Maharashtra reported in AIR 1987 SC 535 (pr.4). 11.4. It was submitted that the only grievance raised before the Circle Officer was with regard to non-issuance of receipts and which issue stood resolved under the order of the Deputy Collector Land 8 Reforms (Annexure-3 to the writ petition) and thus, there stood no occasion for exercise of power under Section l6 of the 1973 Act. 11.5. It was next contended that the entry in the survey records neither creates nor obliterates any existing right. In support of his submission, he relied upon a Full Bench judgment of this Court in the case of Nand Kumar Rai and others Vrs. State of Bihar and other reported in 1974 PLJR 27 (Pr.14). 11.6. It was next contended that it was permissible for a ex-landlord to settle the gairmajarua malik land without fetters and by means of sada Hukumnama or by grant of receipts and in support of the said submission, he relied upon the following judgments: A.1978 BBCJ 323 (Harihar Singh & anr Vs. The Additional Collector I/c Land Reforms Monghyr (Paras-7,15,16 and B.1983 PLJR 727 (Khiru Gope and two others Vs. The Land Reforms Deputy Collector, Jamui and three others (Pr.18). In this connection, Mr. Choubey went on to contend that the ex-landlord could even settle gairmajarua aam land subject to any objection received in this regard from the common people. In support of this submission, he has relied upon a judgment rendered by a Special Bench this Court reported in AIR 1955 (Patna) pg.1. 11.7. It was next contended that the bar under 9 section 10-A of the Consolidation Act did not apply to the exercise of the power under section 35 of the Act. In support of his submission, he relied upon the following judgments : A. 2007 (1) PLJR 19 (Jagdish Mandal & others Vs. The State of Bihar & others) (Pr.3 and B. 1985 PLJR 986 (Shiv Kumar Thakur Vrs. The State of Bihar and another)(paras-6,7). 11.8. It was then contended that the State was free to challenge the orders passed by the statutory authorities under the Consolidation Act in accordance with law, but the State having waived their rights and having allowed the said orders to become final, binding and conclusive between the parties, they cannot be allowed to destroy the finality of the said orders on the basis of an order passed in collateral proceeding, which had no sanction of law. 11.9. It was submitted that the orders passed by courts of competent jurisdiction operates res judicata to subsequent proceedings on the same issue and stand on a high pedestal. In support of his contention, he relied upon a Special Bench judgment of this Court rendered in the case of Ram Krit Singh and others vrs. The State of Bihar and others reported in 1979 BBCJ 259 (pr-14). 11.10. It was lastly contended that the learned Single Judge should have allowed the writ application 10 in view of his own observation that the orders passed by court of competent jurisdiction, cannot be annulled in collateral proceedings. 12. Mr. Shashi Bhushan Kumar, learned Standing Counsel No.16, appearing on behalf of the State, supported the impugned order and opposed the contentions advanced on behalf of the appellant. It may be mentioned here that a rather shoddy counter affidavit has been filed at the stage of writ proceeding, in a most casual manner. Save and except for ornamental denials, no effort has been made to meet the issues raised therein. Learned counsel, however, tried to supplement his argument with reference to the annexures to the writ proceedings. 12.1. He contended that the land in question was „gairmajarua malik pokhar‟ and registered with the Fishery Department of the Government of Bihar. 12.2. It is next contended by him that the ex- landlord had no jurisdiction to settle the said land with the appellant and which is without jurisdiction. 12.3. It was contended that the land was meant for general public and could not be settled in favour of any individual and the rent receipts, even if issued, have no legal basis. 12.4. It was stated that mere production of few 11 receipts by the appellant was not sufficient evidence for his title over the land in question. 12.5. It was next contended that as the receipts had been issued by the Panchayat Sewak in fraudulent manner, restraint had been put against its issuance by the Circle Officer, Chenari and which action was upheld under the order of the Collector (Annexure-4 to the writ petition). 12.6. It was lastly contended that the order passed by the learned Collector was perfectly legal and as the orders passed by the statutory authorities under the Consolidation Act were without jurisdiction, there was no infirmity in the impugned order of the Collector (Annexure-4 to the writ petition) in declaring as such. 13. We have perused the materials on record and considered the rival submissions advanced on behalf of the parties. 14. Before dealing with the respective arguments of the learned counsels, it will be proper to first refer to two provisions of the relevant enactments, which are under consideration in the present proceedings. Section 39 of the Consolidation Act provides as under: “39.-provisions of this act to prevail over other Acts.- 12 The provisions of this Act shall have effect, notwithstanding anything to the contrary contained in any other law for the time being in force.” Section 31 of the Bihar Tenant‟s Holdings (Maintenance of Records) Act, 1973 runs as follows: “31.-Act not to prevail over other laws.- The provisions of this Act shall be in addition to and not in derogation of provisions contained in any other law for the time being in force.” 15. Thus, one thing is clear that the provisions of the Consolidation Act has an over riding effect over the provisions of 1973 Act and the orders passed by the competent statutory authorities under the Consolidation Act, cannot be nullified or set aside by any order passed by any authority in a collateral proceeding arising out of 1973 Act. 15.1. Our view is supported by a judgment of this Court rendered in the case of Nagendra Narain Vs. Laxman 1984 BBCJ 316. That was a case in which orders passed under the Consolidation Act was sought to be nullified through proceedings arising out under Section 145 of the Code of Criminal Proceeding, 1973 declaring possession of the opposite party over the land in dispute. With reference to the provisions of Sections 37 and 39 of the Consolidation Act, it was held that the decision of the Consolidation Officer 13 in accordance with the provisions of the Act, could be challenged in any Civil Court and in that sense, it was final. It was further observed that allowing the Magistrate to ignore the order passed by the Consolidation authorities, while deciding the proceeding under Section 145 of the Code of Criminal Procedure, would lead to an anamolous situation, where the possession of one party would be declared in a proceeding under the Consolidation Act and the other party may be put in possession in a proceeding under Section l45 of the Code of Criminal procedure. Taking note of such fact, it was held that the orders passed in the Consolidation proceeding are final and binding in nature. 16. It is admitted that the court of the Collector is no forum in the scheme of the Consolidation Act. The proceedings initiated at the level of a Consolidation Officer or the Assistant Consolidation Officer finally culminates in an order passed under Section 35 of the Act passing through the forum of appeal and revision. In this view of the matter, the Collector, Rohtas exercising powers under the provisions of 1973 Act, had acted wholly without jurisdiction in entrenching upon a jurisdiction reserved for Statutory authorities under the 14 Consolidation Act. Law is well settled that the orders passed by the competent authorities in exercise of statutory powers, cannot be obliterated, nullified or set aside by means of collateral proceedings. 17. There was no estoppel for the Revenue authorities to assail the orders passed by the statutory authorities under the Consolidation Act by moving an appropriate application before an appropriate forum. Having failed to avail the opportunity, they cannot be permitted to nullify the effect of the said orders by resorting to proceedings under the 1973 Act, the provisions of which as already noted above, is subservient and supplemental to any other enactment (in the present case the Consolidation Act) and not in derogation of the same. 18. From various orders appended to the writ application, it is clear that the land was in the nature of a gairmajarua malik land and belonged to the ex-landlord. It is also borne from the records that after the vesting of the Zamindari, receipts were issued in the name of the uncle of the appellant until 1970, whereafter, it was stopped presumably by reason of commencing Consolidation proceeding and upon conclusion of the same, it again were being 15 issued until the Circle Officer, Chenari decided to arbitrarily stop it, despite resolution of the issue by the orders of the statutory authorities under the Consolidation Act. His revision application under Section 35 of the Consolidation Act having been dismissed (Annexurte-2 to the writ petition), the Circle Officer tried to obliterate the same by exercise of powers under Act, 1973 and in consequence whereof, he stopped the issuance of receipts. This act of the Circle Officer, Chenari was per se illegal, and gross abuse of the statutory powers. Though the illegalities committed by the Circle Officer were sought to be corrected by the learned Deputy Collector Land Reforms, Sasaram vide order passed in Misc.Case No.50/1997-98 (Annexure-3 to the writ petition) upon consideration of the entire issues and materials on record, but lawfully passed order of the learned Deputy Collector Land Reforms was upset at the hands of the Collector, Rohtas by passing the order dated 30.11.1999 in revision Case No.3/1998 (Annexure-4 to the writ petition) and while doing so, he nullified the effect of the orders validly passed by competent Statutory authorities under the provisions of the Consolidation Act. 19. We have noticed that the learned Single Judge 16 did observe that an order passed by a competent authority cannot be nullified by any other authority, but having proceeded correctly, he committed error in relying upon the provisions of Section 16 of the Act, l973 to justify the illegal order of the learned Collector, Rohtas as contained in Annexure-4 to the writ, and dismissed the writ petition on grounds of involving disputed issues of facts. 20. Having considered the rival contentions and the materials on record, we are in respectful disagreement with the order passed by the learned Single Judge for the reasons that there were no disputed issues raised in the writ petition and secondly that the Collector, Rohtas had acted wholly without jurisdiction in nullifying the effect of the orders passed by the statutory authorities under the Consolidation Act. The over riding effect of the Consolidation Act over other enactments and the supplemental nature of the Act, 1973, perhaps, went unnoticed. 21. We are in complete agreement with the submissions of the learned counsel appearing on behalf of the appellant that the order of the learned Collector, Rohtas dated 30.11.1999 as contained in Annexure-4 to the writ suffered from the vice of 17 „Corum Non Judice‟ and could not have the effect of nullifying the orders passed by the statutory authorities under the Consolidation Act as contained in Annxures-1 and 2 to the writ petition. 22. The order of the Collector, Rohtas dated 30.11.1999 (Annexure-4 to the writ) is a clear case of authorities acting in excess of jurisdiction and in gross abuse of Statutory powers and thus unsustainable. Having held as such, we find no necessity to delve on the other issues raised on behalf of the appellant. 23. In the result, the appeal is allowed, the impugned judgment and order dated 23.2.2001 passed by a learned Single Judge in C.W.J.C.No.1610 of 2000 and the order dated 30.11.1999 passed by the Collector, Rohtas in Rev.Case No.3/1998 as contained in Annexure-4 to the writ petition, are set aside. However, there shall be no order as to cost. (Jyoti Saran,J.) S.K.Katriar,J. (S.K.Katriar,J.) Patna High Court, Dated, 28th August,2009. NAFR/ahk