IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7390 of 2009 Suresh Chandra Agrawal, son of Late Sheo Govind Prasad Agrawal, village Khiri, Ps Bhagwanpur, District Kaimur – petitioner. Vs. 1. The State of Bihar, 2. The Director, Consolidation, Bihar, Patna. 3. The Deputy Collector, Consolidation, Rohtas at Sasaram. 4. The Consolidation Officer, Bhagwanpur, Kaimur. 5. Ravindra Kumar Agrawal, 6. Surendra Nath Agrawal, both sons of Late Jagarnath Pd. Agrawal, 7. Sanjay Kumar Agrawal, 8. Sonal Raj Garg, 9. Saurav Agrawal, sons of Late Jitendra Agrawal. 10. Deepa Agrawal, daughter of Late Jitendra Agrawal, 11.Nirmala Agrawal, wife of Late Jitendra Agrawal, all of village Khiri, Ps Bhagwanpur, Dist. Kaimur – Respondents. … For the petitioner : Mr. Dinbandhu Singh and Mr. Santosh Kumar, Advocates. For the State : Mr. P.K. Shahi, Advocate General, Mr. Amarnath Deo, SC X and Mr. Ranjit Sinha, AC to SC X. For the private respondents : Mr. V. Nath, Mr. Ashok Kumar and Mr. W. Rahman, Advocates. 5 13.7.2010 This writ petition has been filed challenging the order, dated 27.3.2009 passed by the Director Consolidation, Bihar in Revision Case No. 1261/1982/344/1998. The facts are that Janki Agrawal had three sons, namely, Sri Govind Prasad Agrawal (GPA), Sri Jagarnath Prasad Agrawal, (JPA) and Harish Chandra Prasad Agrawal. It is admitted by both the parties that there was a partition between three brothers in the year 1967. The dispute relates to C.S. plot no. 28, chak no. 140, measuring a total of 1.14 decimals, out of which .22 decimals of lands are in dispute. The plots are situate in village Kheri within Bhagwanpur Anchal in the district of Kaimur. In the 1967 partition 92 decimals of C.S. plot no.28 was allotted to the two contesting parties and the third brother was granted 78 decimals of land. The petitioner‟s case is that a chak of .92 decimals of land ought to be carved out in his name in 2 accordance with the registered partition, whereas the case of the respondents is that after the partition the parties felt difficulty in cultivating the lands allotted to them and, therefore, GPA gave 22 decimals of land out of C.S. plot no.28 to JPA; in turn JPA gave 28 decimals of land in R.S. plot no.170 to the heirs of GPA and as such it is the case of the respondents that the chak allotted in the Consolidation Proceeding No. 78/58/1974-75 disposed of on 15.10.1976 has correctly been allotted. The matter, however, did not end with the order, dated 15.10.1976 although no appeal or revision was filed against the order passed by the Consolidation Officer. The petitioner, thereafter, woke up and filed Appeal No. 441/1981 which was dismissed on 30.10.1982 on the ground that the appeal was not maintainable being hopelessly time barred. Against the order passed in the appeal the petitioner filed Revision No. 11261/1982 which was dismissed on similar ground on 30.7.1987. Thereafter, the petitioner came in a writ petition being CWJC No. 5478/1987 before this court which was also dismissed. The petitioner thereafter filed a review of the order passed in the writ petition. This court while refusing the review recorded the fact that the writ petition was mainly dismissed on the ground that “the application preferred by the petitioner under section 10(B) of the Consolidation Act was not maintainable and the cause of action against the initial order passed by the Consolidation Officer on 15.10.1976, in fact they should have preferred an appeal”. In the review application the court, however, held that 3 since the writ petition was not decided on merit and since the Deputy Director had no jurisdiction to pass an order under section 35 of the Act, the petitioner was given the liberty to file a revision application or to file a suit before the civil court of competent jurisdiction. Since liberty was given by this court, the petitioner filed revision application which was allowed by order contained in Annexure 4 being Revision No. 1261/1982 and 344/1998, dated 7.7.2000. Against the order allowing revision application, the opposite party moved a review application which was dismissed on 3.1.2001. Against the order dismissing the revision and review filed CWJC No. 1236/2001 which was disposed of on 22.8.2008 by this court. This court found that in fact the order has been passed against a dead person, no substitution application was filed and as such granted liberty to the opposite party to file an application under section 35 before the Director Consolidation after impleading the heirs of Jitendra Kumar Agrawal. The present order is the result of the aforesaid observation given by the High court in the order, dated 22.8.2008. A preliminary objection has been raised on behalf of the petitioner stating that the Director Consolidation has no power and authority to pass the impugned order for the reasons that the then Director was notified and transferred as the Principal Secretary, Revenue and Land Reforms Department on 15.3.2008 where he joined on 17.3.2008. It is submitted that in fact the order impugned passed on 27.3.2009 was without jurisdiction. On behalf of the State it has been brought on record that 4 the notification was issued on 29.7.2009 giving the powers to the then Director Consolidation with retrospective effect i.e. from 17.3.2008, the date on which he joined as the Principal Secretary. The petitioner contend that such order giving retrospective powers to the officers could not have been passed. This court has in a number of orders passed by Sri C. Ashok Vardhan acting as Director considered the orders on merits and has allowed or dismissed several writ petitions. This point has never been raised earlier. However, since it has been raised in this particular case, I would refer to the judgment passed in the case of Gokaraju Rangaraju vs. State of A.P. (1981) 3 SCC 133= AIR 1981 SC 1473. In the aforesaid case Sessions Judges had been appointed which was challenged on several grounds including the ground that they have not been appointed according to rules. The question that came up for consideration was whether the judgment delivered by the Judges “is a judgment”? After considering all aspects of the matter the Supreme court held that it would in fact create chaos if the judgments would be set aside on the ground that the Judges in fact were not the judges as they were not duly appointed. I may quote few lines from the judgment referred to above which are as under : “A Judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief.” 5 The aforesaid paragraph would answer the contention of the petitioner. In this case not only will the parties suffer if this court was to interfere on the ground that the Judge did not hold power to pass a judgment, but will cause immense inconvenience to the parties and it would be against the public policy. The aforesaid facts coupled with the notification issued by the State Government in fact removed the defect, by clothing the Director the power to hold the post, from the date on which he joined the office as Secretary of the Revenue Department. The notification dated 29.7.2009 in fact removes the defect, if any, and the objections raised on behalf of the petitioner, specially as the dispute is between two private persons. Mr. Chitaranjan Sinha appearing on behalf of the petitioner, on the other hand, relies on the decision rendered in the case of Srikant Prasad Shrivastava vs. State of Bihar, 1997 (1) PLJR 214 to argue that in the facts of the present case, it cannot be said that the Director was validly holding a post of Director Consolidation after his notification as Principal Secretary. Basing his argument on the findings of the court in Srikant‟s case it has been argued that the judgment distinguishes the law laid down in the case of Gokaraju Rangaraju (supra). In my opinion, the judgment rendered in Srikant‟s case was in very different set of facts, which are, that the writ petition was filed challenging the appointment of respondents 6 to 27 on the post of Principal in different constituent colleges of B.R. Ambedkar Bihar University. The challenge was on the ground that the 6 respondents were appointed by a Commission, whose constitution was vitiated by the presence of two members, who were found by a Division Bench of this court to be disqualified and subsequently on appeal the said judgment was affirmed by the Supreme court. It may be noted that the Commission is constituted under the provisions of Bihar State University (Constituent Colleges) Service Commission Act, 1987, for the purpose of making recommendations for the recruitment of officers and teachers of the Universities and constituent colleges in the State. It may be of importance to note that the Commission was reconstituted without the two disqualified members on 26.5.1995. The respondents in the case were recommended for appointment on 15.1.1991. In the aforesaid context it was argued on behalf of respondents that the recommendation on 15.1.1991 was saved by the “de facto doctrine”. The learned single judge relying on paragraph 15 (page 1978) of the case of Gokaraju Rangaraju distinguished the application of the doctrine, from the facts of Srikant Prasad Shrivastava. I may quote from paragraph 6 of Gokaraju Rangaraju‟s case “but the doctrine does not come to the rescue of an intruder or usurper or a total stranger to the office”. Thus, the learned single Judge went on to hold that the committee was reconstituted on 13.7.1995 without the two members who were previously holding the office. Therefore, it was held that the „de facto doctrine‟ cannot be pressed into service to validate the functioning of both Dr. B.P. Yadav 7 and Sri Suresh Prasad Singh as members of the commission in view of the aforesaid statutory notification omitting them as members of the commission. Meaning thereby that the respondents could not get the benefit of appointment to the post of Principals on the ground that the subsequent commission did not appoint the two disqualified members of the commission. The facts of the present case are distinguishable in view of the fact that Sri C. Ashok Vardhan, the Director Consolidation was appointed and vested with the power of Director Consolidation, Bihar, Patna and was acting in the capacity of a Director. On the date he joined as Principal Secretary, Revenue & Land Reforms Department i.e. 17.3.2008, he continued to perform the duties of Director Consolidation. This power to act as Director Consolidation were confirmed by a notification issued subsequently vide memo no. 7393, dated 29.7.2009. In the circumstances stated aforesaid, it cannot be said that Sri C. Ashok Vardhan was a usurper and not entitled or disqualified to hold the post. Even otherwise the matter has to be concluded on the basis of the contentions raised by the parties regarding the merits of the case. The matter stood concluded in 1976 has been reopened by the spate of applications, review and writs filed by the parties and it is high time that matters should be set at rest. The records are before this Court and as such nothing more can be added to the factual aspect. Coming now to the merits of the case, after having stated the facts aforesaid, the question is whether the chak has wrongly been carved in favour of the respondents? For deciding the issue this court 8 would like to refer to Annexure-A filed by the respondents. Sri GPA had filed Mutation Case No. 419/1975 before the Circle Officer claiming that 70 decimals of land of C.S. plot no.28 may be mutated in his name. On notice Sri JPA appeared and the application was allowed. I would like to quote the order, dated 16.12.1975 which reads as follows : “Dono Pakcho ko abhi jin ke dakha kabze ke mutabik namantaran nimn parkar swikrit kiya jata hai : Village Khata Khesra Reqba Kheri 17/1 50 2.47 19,2/219 82/28 0.70 3.17 Iskeliye dono paksh raszi hue aur namantaran swikrit kiya gaya.” The petitioner in the mutation case accepted that 70 decimals should be mutated in his name as far back in 1975 and then decided to reagitate the matter by filing a case before the Consolidation Officer on 11.9.1975 after the order of mutation was passed. This issue is being raked up for the past thirty years and one or the other party has come to this court on three occasions earlier to the present one. The petitioner has not denied that he is not in possession of 28 decimals of lands pertaining to C.S. Plot No. 46 (R.S. Plot No. 170), which Jagarnath Prasad Agarwal exchanged with the petitioner, in order to enable Sri Govind Prasad Agarwal to have 9 larger chunk of land in C.S. Plot No. 46 (R.S. Plot No. 170) which land was mutated by order dated 16.12.1975. Thus this Court finds that the order dated 15.10.1976 by the Consolidation Officer entering the name of Jagarnath Prasad Agarwal (or his heirs) is in accordance with law and the order does not warrant interference. I also find that the order of the Director Consolidation while considering all aspects including the fact that there had been exchange of lands which had been acted upon and both the parties are in possession of their respective lands seems to be justified, specially in view of the fact that consent order was passed in the mutation case. For the reasons discussed above, I do not find any merit in the writ application and it is dismissed. AFR / haque (Sheema Ali Khan, J.)