IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1269 of 2010 Amarendra Kumar Singh son of Late Chandeshwar Pd. Singh, resident of Village and P.O. Bihta, P.S. Bihta, District Patna ………..Appellant Versus 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna 2. The Collector, Patna 3. The Additional Collector, Patna 4. The Deputy Collector, Land Reforms, Danapur, Patna 5. The Circle Officer, Anchal Bihta, District Patna 6. Bhupendra Kumar Singh 7. Upendra Kumar Singh 8. Kaushalendra Kumar Singh Sl.No.6 to 8 sons of late Chandeshwar Pd. Singh 9. Smt. Jarai Devi wife of late Chandeshwar Pd. Singh All resident of Village, P.O. and P.S. Bihta, District Patna …..Petitioners-Respondents 10. Sobha Devi wife of Raghuvanshmani, resident of Village Barahpur, P.S. Mokamah, District Patna ….Respondent no.7-Respondent ----------- For the Appellant : Mr.Shrinandan Singh, Advocate Mr. Krishna Kishore Sinha, Advocate Mr.Shashank Kr.Singh, Advocate For the State : Mr. Nasrul Hoda Khan, SC 18 For Respondents 6 : Mr. Dinu Kumar, Advocate to 10 Mr.Shiv Kumar Parbhakar, Advocate O r d e r 6 07.04.2011 The instant appeal under clause 10 of the Letters Patent of the High Court of Judicature at Patna has been filed against the order dated 7.7.2010 passed in C.W.J.C.No.10324 of 2010, whereby the learned Single Judge held that the learned Additional Collector 2 was not competent to decide the revision application under section 16 of the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 (hereinafter referred to as „the Act‟), for which only the Collector of the district has been authorized. The learned Single Judge remanded the matter for hearing by the Collector of the district in terms of section 16 of the Act, 1961. The learned Single Judge did not find it necessary to issue notice to the respondent (the appellant in this appeal), as the mater involved an issue of law which has already been settled by a Division Bench of this Court. 2. The facts of the case in brief is that one Upendra Kumar Singh and Kaushalendra Kumar Singh, brothers of the appellant, filed Mutation Case No.42 of 2001 before the learned Circle Officer, Bihta, for issuing rent receipts by opening Zamabandi in their favour. The learned Circle Officer rejected the application vide order dated 12.2.2001. They filed an appeal before the learned Deputy Collector, Land Reforms, Danapur, under section 15 of the Act, being Appeal No.1 of 2001-02, which was allowed on 18.7.2001. Now it was 3 the appellant‟s turn to file revision application before the learned Collector, Patna, being Mutation Revision Case No.15 of 2001-02, under section 16 of the Act. The revision application was admitted on 18.1.2006, and finally allowed by the learned Additional Collector in favour of the appellant vide order dated 24.2.2010. Respondent nos.6 to 9 in this appeal filed C.W.J.C.No.10324 of 2010, against the order of the Additional Collector, dated 24.2.2010 passed in Mutation Revision Case No.15 of 2001-02. The learned Single Judge by order dated 7.7.2010, observed that, in view of statutory provisions of Act of 1973, as well as Division Bench decision of this court in the case of Kapildeo Singh Vs State of Bihar, reported in 2003(2) PLJR 431, an Additional Collector would not have jurisdiction to decide revision application under section 16 of the Act for which only the Collector of the district is authorized. The learned Single Judge remitted the matter to the learned Collector of the district for fresh adjudication. The appellant has challenged the order of the learned Single Judge by preferring the present appeal. 4 3. Heard Mr. Shrinandan Singh for the appellant and respondent no.10, learned State Counsel for respondent nos.1 to 5, and Mr. Dinu Kumar appearing for respondent nos.6 to 9. 4. We have considered the submissions advanced by learned counsel for the parties and perused the materials on record. The following issues arise for our consideration :- (i) whether the notification dated 28.5.2008 made under section 2(c) of the Act, 1973 by Government of Bihar published in Bihar Gazette on 11.6.2008 empower the Additional Collector to exercise function and revisional power of Collector of the district under section 16 of the Act, 1973. (ii) Whether the appellant ought to have filed a review application, instead the instant appeal is maintainable. 5. Before we advert to the issues involved in the case, it would be necessary to notice the scheme and the relevant provisions of the Act, 1973. The Bihar Tenants Holdings (Maintenance of Records) Act, 1973 was promulgated to provide primarily for maintenance of up-to-date record of agricultural holdings in the State of Bihar and matters connected therewith for the purpose of identifying person from whom rent etc. can 5 be realized. The entry in the record signifies possession and prima facie right to possess. Prior to coming of the Act of 1973, the up-to-date record of holdings was recorded in Register II by Government after vesting of Zamindari on the basis of returns filed by the ex-land lords and Zamindar. The term „Collector‟ has been defined in section 2(c) of the Act which reads as follows: “2(c) “Collector” includes an Additional Collector, an Additional Deputy Commissioner and any other officer not below the rank of a Deputy Collector specially empowered by the State Government to discharge all or any of the functions of a Collector under this Act”. 6. Section 12, under Chapter II, states that any person claiming interest in the land by way of partition or testamentary succession or by way of gift etc. can file an application for mutation of their names in respect of the land concerned before the Anchal Adhikari. 7. Chapter III deals with mutation and Section 14 thereof confers power on Anchal Adhikari to start a mutation proceeding and decide the matter after giving an opportunity to other side to file objection. Section 15 provides for an appeal before the Deputy Collector, 6 Land Reforms (hereinafter referred to as „DCLR‟) against the order of Anchal Adhikari. A party aggrieved by the order of the DCLR in appeal, can file a revision under section 16 of the Act before the Collector of the District which is quoted herein below: “16. Revision- The Collector of the district may, on an application made to him in this behalf or for the purpose of satisfying himself as to the legality or propriety of any order made under this Act or the rules made thereunder by any authority or officer call for and examine the record of any case pending before or disposed of by such authority or officer and pass such order as he thinks fit: Provided that the Collector shall not entertain any application from any person, aggrieved by any order, unless it is made within thirty days from the date of the order: Provided further that no order modifying, altering, or setting aside, any order made by such authority or officer shall be passed by the Collector unless the parties concerned have been given a reasonable opportunity of being heard”. 8. The case of respondents is that an Additional Collector is not the Collector of the district in terms of section 16 of the Act and as such he could not have exercised power of revision which was only vested with the Collector of the district. The respondents had placed reliance on a Single Judge decision in the case of Most. Babuni Devi (supra). In that case, the learned Single 7 Judge held that the power of revision under section 16 of the Act has been conferred on the Collector of the district which would not include an Additional Collector or Deputy Collector. The case of Babuni Devi (supra), would not be of any help to the respondents as in the aforesaid case power of revision under section 16 of the Act 1973 was exercised by the Additional Collector in 1996. The issue is whether after notification dated 28.5.2008, issued by Government under section 2(C) of the Act, the Additional Collector is empowered to exercise jurisdiction of Collector of the district. It is not the appellant‟s case and rightly so that prior to 28.5.2008, the Additional Collector could exercise power of revision or power of Collector under the Act. 9. Ironically both the appellant and respondents have relied upon the Division Bench decision rendered in the case of Kapildeo Singh (supra), and government notification under section 2(c) of the Act empowering the Additional Collector to discharge functions of the Collector under the Act has referred to it. Thus we need to examine the case of Kapildeo Singh (supra) in some 8 detail. 10. In the aforesaid case, a revision application disposed of by the Additional Collector on 5.12.1994, under section 16 of the Act was challenged by Kapildeo Singh in writ jurisdiction, on the ground that the Collector of the district alone is vested with the revisional power under section 16 of 1973 Act, and Additional Collector has no power of revision under the said section and as such the order passed by him is without jurisdiction. The petitioner Kapildeo Singh cited cases of Shankar Shukla Vs State of Bihar, reported in 2000(3) PLJR 839 and Mst. Binda Kunwar Vs State of Bihar, reported in 2001(3) PLJR 54 in support of his submissions. The learned Single Judge disagreeing with the earlier view taken in the aforesaid two cases, referred the matter to the Division Bench for authoritative pronouncement. The Division Bench of this Court observed that though the term „Collector‟ as defined under section 2(c) of the Act would include an Additional Collector or an Additional Deputy Commissioner, they cannot exercise power of Collector of the district unless and until notification to the 9 aforesaid effect is issued under the said provision. As the Government had not issued any notification under section 2(c) of the Act empowering Additional Collector to exercise power of Collector under the Act, the Division Bench quashed the order of Additional Collector dated 5.12.1994 being without jurisdiction. The decision of Division Bench would not be of any help to the respondent, as the order of Additional Collector dated 5.12.1994 impugned in that case is passed prior to issuance of notification dated 28.5.2008 under section 2(C). On the contrary, the judgment would come in aid of the appellant as the learned Judges observed that it is within the power of Government under section 2(c) to empower an Additional Collector to discharge the function of the Collector under the Act. We would do no better than to quote paragraph 11 of the observations of the Division Bench which runs as under: “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 authorizing them to discharge all or any of the functions of the Collector of the district. In absence of empowerment by notification they cannot 10 discharge the functions of the Collector of the district with regard to any matter. Nothing has been brought on record to show that any notification has been issued specially empowering the Additional Collector to exercise all or any of the functions of the Collector under the Act”. 11. We have seen that section 2(c) of the Act vests power in the State Government to empower an Additional Collector or an Additional Deputy Commissioner or any other officer not below the rank of a Deputy Collector to discharge the functions of Collector under the Act. The term „Collector‟ in the Act of 1973 is referred in section 16 of the Act which provides that power of revision is to be exercised by the Collector of the district. 12. Vested with such statutory authorization conferred under legislative mandate, the State Government on 28.5.2008 issued notification under section 2(c) empowering Additional Collector to exercise power of Collector of the district under section 16 of the Act. 13. It appears that the Government realized that the general transfer of revision cases filed under section 16 of the Act to Additional Collector was legally 11 impermissible without conferring power and due authorization, under a notification which was duly provided under section 2(C) of the Act of 1973 itself. Presumably taking clue from observations made in the case of Kapildeo Singh Vs State of Bihar (supra), the Government issued necessary notification on 28.5.2008 under section 2(C) of the Act empowering and conferring power of Collector of the district on Additional Collector. 14. Mr. Dinu Kumar, learned counsel also had countered that the State Government by executive order cannot confer power of the Collector of the district on Additional Collector. He had submitted that the power could have been conferred only by way of amendment of section 16 of the Act or definition of term „Collector‟ appearing in section 2(c). 15. We may have agreed with the submissions of Mr. Dinu Kumar, learned counsel if the Government was not authorized under section 2(c) of the Act to issue notifications conferring power of Collector of the district to Additional Collector which was itself delegated in section 2(C) of the Act. In the absence of 12 such authorization and vesting of power under section 2(c) of the Act, the Government could not have empowered an Additional Collector to perform function of Collector of the district under the Act by an executive fiat. Such conferment of jurisdiction to Additional Collector could have been possible through an Amendment in the Act. But such is not the situation here, as section 2(c) itself confers power on Government to empower an Additional Collector through notification to perform function of Collector under the Act including those provided under section 16 of the Act. Thus we do not find any illegality in the Government notification dated 28.5.2008, issued under section 2(C) of 1973 Act, empowering the Additional Collector to perform function of the Collector in terms of section 16 of the Act. 16. Further more, in view of the notification dated 28.5.2008, the Collector, Patna, vide his order contained in memo no.1496, dated 8.7.2009, transferred the mutation revisions preferred under section 16 of the Act to the Additional Collector for disposal. The order also provided that the Additional Collector would perform 13 the work of the Collector in the court room of the Collector itself. 17. In the instant case, the Additional Collector has exercised jurisdiction under section 16 of the Act on 24.2.2010, after issuance of notification dated 28.5.2008 under section 2(c) of the Act, whereby the State Government had authorized Additional Collector to exercise and perform the function of the Collector under the Act. Thus, we hold that on 24.2.2010, the Additional Collector was duly empowered to exercise all revisional power of the Collector of the district under section 16 of the Act. The case laws referred to by Mr. Dinu Kumar are all prior to the Government notification dated 28.5.2008, and would not be applicable to the facts of the present case. 18. Mr. Dinu Kumar had raised the issue that the revision application was admitted on 18.1.2006 by the Additional Collector. However, Mr. Shrinandan Singh, learned counsel appearing for the appellant asserts that the aforesaid case was admitted by the Collector and not by the Additional Collector. We are not impressed with the arguments of learned counsel for the respondents 14 that the aforesaid case was admitted by the Additional Collector and not by the Collector of the district, as the appellant produced two sets of certified copy of the order sheet, apart from filing copy of one on affidavit. The respondent had not filed his copy of order sheet dated 18.1.2006 on affidavit. In any view of the matter the Additional Collector was empowered to exercise power of Collector of the district under section 6 of the Act of 1973, on 28.5.2008 on which date he disposed of the revision. 19. Mr. Dinu Kumar has lastly raised the issue of maintainability of this appeal. According to him, the appellant ought to have filed review application. The exercise of power of review is in a narrow sweep and an order is open to review; (a) if there is an error on the face of record or (b) the parties in spite of exercise of due diligence could not bring the relevant materials on record or (c) if it had occasioned grave miscarriage of justice. The Constitution Bench of the Apex Court in the case of Shivdeo Singh v. State of Punjab & Ors, reported in 1963 SC 1909, observed that if a person is affected by an order passed in a previous application in 15 which he was not a party, he can take resort to any of the three remedies e.g. (a) one can either file a fresh writ application or (b) a review or (c) an appeal. It is relevant to state here that appellant was not noticed in the writ application and it was up to him to choose any one of the available forums. The appellant has chosen the forum of appeal, which is also one of the permissible alternatives and as such we reject the objection to maintainability of this appeal raised by the respondents. It was essential for the writ petitioner to bring all the documents on record and the former cannot in the circumstance ask the appellant to choose a particular forum. The writ petitioner cannot default and preach at the same time. 20. It is unfortunate that the notification dated 28.5.2008, conferring the revisional power under section 16 of the Act to the Additional Collector, was not produced before the learned Single Judge. Had the aforesaid notification been produced before the learned Single Judge, she may possibly have taken the same view as we in the present appeal. 21. For the reasons stated above, the appeal is 16 KHAN allowed and the order dated 7.7.2010 of the writ petition, is set aside, and the matter is remitted to the learned Single Judge for a decision on the merits of the case in accordance with law. (S.K. Katriar,J) (S.P.Singh,J)