IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6874 of 2005 AWADHESH TIWARY & ANR. Versus THE STATE OF BIHAR & ORS With CWJC No. 9028 of 2006 Ram Sudhakar Tiwary & Anr.Vs.State of Bihar & Ors. With M.J.C. No. 527 of 2007 Kamlakant Tiwary Vs. State of Bihar & Ors. ------- 7 20.8.2008 Heard the parties. In C.W.J.C. No. 6874 of 2005 the two petitioners, namely, Awadhesh Tiwary and Kamla Kant Tiwary have sought a relief for quashing the order contained in letter no. 543 dated 26.5.2005, Annexure-7 to the writ application, whereby and whereunder, the Additional Collector, Kaimur had recommended to the Collector of the Kaimur district that the measurement of land should be allowed to be made in terms of the orders passed by the consolidation authorities which have been approved by this Court in the writ petitions and the letters patent appeal assailing the order of Director, Consolidation. In C.W.J.C. No. 9028 of 2006 two petitioners, namely, Ram Sudhakar Tiwary and Ramyash Tiwary had sought a direction for restraining the authorities in constructing the chak-road in mauza- Bisunpur as also by restraining the authorities of the Zila Parishad or the Panchayat Samittee to release fund for such construction of chak-road. A further prayer has been made that the authorities be restrained from making any construction in respect of chak-road from any fund of the public land or from fund of Gram panchayat. When C.W.J.C. No. 6874 of 2005 was taken 2 up on 11.7.2005 an interim order was passed, whereby and whereunder, possession of the petitioners Awadhesh Tiwary amd Kamla Kant Tiwary over the plots of land given to them on the basis of consolidation khatian were directed to be not disturbed during pendency of the writ application, but Kamla Kant Tiwary, writ petitioner in C.W.C. No. 6874 of 2005 has alleged violation of the aforementioned interim order and has filed M.J.C. No. 527 of 2007 for initiating a proceeding against the Subdivisional Officer and the Officer Incharge of Mohania and Ramgarh police station respectively. The facts which are to be noticed for the limited purpose of disposal of the aforementioned three petitions are not in dispute, in as much as, the land in question being claimed by the petitioners was made subject matter of consolidation proceeding and ultimately the matter had traveled up to the Director Consolidation in Case No. 861 of 1990 which was disposed of by the Director, Consolidation against which a writ application being C.W.J.C. No. 3177 of 1990 was filed and the said writ petition was allowed by remitting back to the Director, Consolidation. Thereafter, the Director Consolidation had passed order on 5.8.1994 after hearing the parties and had held that the scheme of consolidation as prepared was in total violation of the statutory requirement and as such he had set aside the entire proceedings with a direction to the consolidation authority to start the process of consolidation afresh from the stage of section 7 3 of the Act and the Director had also restrained the authorities from giving effect to the existing scheme. As against the aforementioned order of the Director, Consolidation dated 5.8.1994 C.W.J.C. 8184 of 1994 was filed by Sriniwas Tiwary and others and the writ petition was dismissed with a finding that if the Director on examination of records had came to a finding after giving an opportunity to the interested persons that the scheme of consolidation was not correctly gone into as per provision of the Act, his order with regard to start the whole scheme afresh from the stage of section 7 of the Act could not be flawed. It is significant to mention here that as against such order of the learned Single Judge dated 11.8.1997 in C.W.J.C. No. 8184 of 1994, an appeal L.P.A. No. 1211 of 1997 was filed by Sri Niwas Tiwary & ors which was dismissed by a Division Bench of this Court by order dated 30.6.2000. It has to be noted here that even a civil review application being Civil Review no. 186/2000 filed by petitioner Sriniwas Tiwary was dismissed by this Court by an order dated 6.2.2001. In an affidavit filed by the private respondent it has also been stated that the order of this Court in L.P.A. No. 1211 of 1997 and Civil Review No. 186 of 2000 was not interfered by the Apex Court, which had also dismissed in S.L.P. No. 166 of 2001 in limine. In that view of the matter, the impugned order which has been passed by the Collector on the recommendation of the Additional Collector directing demarcation of the land as per entries 4 in the survey khatian cannot be now indirectly questioned by the petitioners when its all sorts of plea as noticed above has been examined and rejected by this Court and also by the Apex Court. This Court cannot lose sight of the fact that the Director of Consolidation ishighest functionary vested with the power of superintendence of the consolidation schemes by virtue of power vested in him under section 35 of the Consolidation Act, and when he on examination of on cogent materials had gone to hold in his order dated 5.8.1994 that the statutory procedure of consolidation Act was not followed and as such the entire thing was to be redone afresh from the stage of section 7 of the Act his such decision got seal of approval upto Apex Court. In such a situation, the submission of the counsel for the petitioner that the order of the Director, consolidation dated 5.8.1994 was not justified and could not have been acted upon because it was in violation of the order of this Court passed in earlier round of litigation passed in C.W.J.C. No. 3177 of 1990 has to be noticed only for it being rejected. Such plea was definitely available to the petitioner when he had sought to assail the aforementioned order of Director dated 5.8.1994 in C.W.J.C. No. 8184 of 1994 and in fact there is nothing for this Court to take into account that such pleas were not raised specially when it is found that the matter as noticed above traveled up to the Apex Court at the instance of the petitioner. 5 The question therefore arises as to what would be effect of the order of the Director, Consolidation dated 5.8.1994 which has been upheld up to the Apex Court ? Can the authority even after setting aside the entire consolidation scheme as undertaken by them in view of order of Director dated 5.8.1994 be allowed to continue with such entries in the khatian, maps and chaks prepared in pursuance of the earlier proceedings. Obviously the answer would be in negative. This Court, in fact, cannot go into this question when the issues had already been settled by the Division Bench and the Apex Court. The desperate plea of counsel for the petitioners that as a matter of fact Letters Patent Appeal of the petitioner was rejected on technical ground and that the review was not considered on merit, cannot be gone into by this Court as doctrine of merger would definitely apply for upholding the order of the Director, Consolidation dated 5.8.1994 which as noticed above has been approved up to Apex Court. In that view of the matter, this Court would find no merit in the Writ petition being C.W.J.C. No. 6874 of 2005 which must be dismissed and the interim order must stand vacated. Since contempt application arises out of an interim order passed in C.W.J.C. No. 6874 of 2005, this Court also does not find any merit in the contempt application, in as much as, the order passed in 144 proceeding by the Subdivisional Officer dated 2.1.2006 cannot be said to be in teeth of the direction of this Court. In the 6 opinion of this Court when the Subdivisional officer, Mohania has merely recorded that on account of pendency of C.W.J.C. No. 6874 of 2005 it would not be possible for him to pass any effective order and that law and order situation be maintained by the Officer Incharge by keeping vigil on the land in question, that by itself will amount and/ or will not constitute violation of an interim order passed by this Court. Consequently, there is no merit even in the contempt application and the same must be dismissed. Coming now to the facts of third case being C.W.J.C. No. 9028 of 2006, this Court would find no ground to interfere with the construction of road. However, keeping in view that the petitioners, namely, Ram Sudhakar Tiwary and Ramyash Tiwary had brought on record the order of the Collector, Kaimur dated 12.12.1996 which was passed in furtherance of the order of Director, Consolidation dated 5.8.1994, this Court would only direct that construction of the proposed road would be made on a public land and in the event such road is to be constructed on a raiyati land, such scheme should only be undertaken after complying the order of Director, Consolidation dated 5.8.1994 in Revision Case No. 861 of 1990 wherein the entire consolidation scheme has to be redrawn from the stage of section 7 of the Consolidation Act. This Court, however, will not restrain the authorities either Zila Parishad or Panchayat Samittee and Gram Panchayat for not releasing funds for construction of such road if land for such road to be used is public land. 7 As a matter of fact, since writ application being C.W.J.C. No. 9028 of 2006 has been filed almost by way of cross writ application by respondent no. 12 of C.W.J.C. No. 6874 of 2005 for implementing the order of the Director, Consolidation dated 5.8.1994 in Revision Case No. 861 of 1990, this Court considering importance of the matter and nature of the dispute being kept pending for last almost 20 years, would direct the consolidation authorities to take up the consolidation scheme expeditiously and would complete the same by making final publication within a period of one year from the date of receipt/production of a copy of this order. C.W.J.C. No. 9028 of 2006 is accordingly disposed of with the aforementioned directions. ( Mihir Kumar Jha, J. ) Abhay Kumar