IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10246 of 2003 RAM UCHIT RAI, S/o late Achhelal Rai, R/o Village – Kansdih Balua, P.S. Doriganj, District Saran …………….…… Petitioner Versus 1. THE STATE OF BIHAR, 2. The Addl. Collector, Saran at Chapra, 3. The Dy. Collector, Land Reforms, Sadar, Chapra, District Saran, 4. The Circle Officer, Circle Office, Sadar, Chapra, District Saran, and 5. Raghubar Rai, son of late Vakil Rai, resident of Village Kansdih Balua, P.S. Doriganj, District – Saran …………..…. Respondents. ----------- For the Petitioner:- Mr. Ganpati Trivedi, and Mr. Bachcha Pandey, Advocates. For the State:- Mr. Binod Kumar, AC to SC V. For the Respdt No.5:- Mr. Abhay Kumar Singh, Advocate. ----------- 3. 26.08.2009. Heard learned counsel for the petitioner, learned counsel for the State as well as learned counsel appearing on behalf of the respondent no. 5. I.A. No. 5868/2008 has been filed for expunging the name of the sole petitioner, namely, Ram Uchit Rai, who died on 10.12.2007, leaving behind his legal representatives as described in paragraph 2 of the aforesaid interlocutory application. No objection is raised on behalf of the respondents. The aforesaid I.A. No. 5868/2008 is, thus, allowed. Let the name of the deceased sole petitioner, namely, Ram Uchit Rai be expunged from the array of parties and, in his place, the names of his legal 2 representatives as described in paragraph 2 of the aforesaid interlocutory application be substituted. The newly substituted heirs and legal representatives of deceased petitioner have already entered their appearance by filing Vakalatnama. Now I proceed to consider and dispose of this writ application. It had been submitted on behalf of the petitioner that the disputed land measuring 1 Bigha 7 Kathas and 9 Dhoors was purchased by the original petitioner (since deceased) in the year 1950 by a registered sale deed from the recorded tenant, namely, Jata Rai, uncle of the respondent no. 5. Earlier, Jamabandi was running in the name of aforesaid Jata Rai which was corrected after aforesaid transaction and a new Jamabandi was created in favour of the petitioner long time ago. The claim of the petitioner is that he had been coming in possession of the land in question since its purchase. The respondent no. 5 filed a petition before the Circle Officer, Sadar, Chapra, Saran, with a prayer that since the land in question was his ancestral land, the Jamabandi running in the name of the petitioner 3 should be cancelled and a new Jamabandi should be created in his name. The Circle Officer concerned after hearing the parties had come to the conclusion that even though there had been error in the descriptions of the land in the sale deed concerned with regard to Khata No. and Plot No., the petitioner had been found to have coming in possession of the aforesaid land also that the boundary of the land in question was correct. However, even after recording such finding, he referred the matter to the Dy. Collector, Land Reforms, Sadar, Chapra, Respondent No. 3. The Dy. Collector, Land Reforms, Sadar, Chapra, Respondent No. 3 had also concurred with the findings of the Circle Officer concerned and had rejected the prayer of correction of Jamabandi. The respondent no. 5 then preferred an appeal before the District Collector, Saran at Chapra, which was registered as Jamabandi Correction Appeal No. 1/2001 and was allowed noticing the discrepancies in the sale deed concerned. It was contended that once a Jamabandi was created in favour of the petitioner long time back on the basis of a sale deed, the authority concerned could not 4 have questioned the veracity of the sale deed even if there was an error in describing the plot concerned for the reason that, admittedly, the petitioner had been coming in possession of the land in question and the description of boundary was correct. It is well settled that if there is dispute with regard to plot no. or even with regard to the area, in that case the boundary will prevail. In that view of the matter the contention was that without challenging the sale deed and getting the same cancelled or nullified by a Civil Court of competent jurisdiction, the authority concerned could not have ignored or declared the same as a nullity. Even if the descriptions of the land were incorrect in the sale deed, the same would be a voidable document, at the behest of a party, by a Civil Court of competent jurisdiction and not a void document to be just ignored by the authority concerned. The second contention on behalf of the petitioner was that the Addl. Collector was not an appellate authority under the Bihar Tenants’ Holdings (Maintenance of Records) Act, 1973, (hereinafter referred as `the Act’). There is a provision of disposal of mutation cases under Section 14 of the Act by the 5 Anchal Adhikari concerned. A party or a person being aggrieved by the aforesaid order has an opportunity to file an appeal under Section 15 of the Act before the Dy. Collector Land Reforms and against the aforesaid order there is a provision of revision also under Section 16 of the Act. Revisional power is to be exercised by the Collector of the District. Submission was that the authorities under the Act being the creatures of the Act and, could not have exercised power except that had been bestowed upon them under the Act. Learned counsel for the petitioner had placed reliance upon a Division Bench decision of this Court rendered in Kapildeo Singh & Ors. Vs. The State of Bihar & Ors., [2003 (2) PLJR 431]. In that case the revision was decided by the Addl. Collector, which was found without jurisdiction by the Division Bench for the reason that Section 16 of the Act clearly stipulated that revision would lie before the Collector of the District. Learned counsel for the respondent no. 5 submitted that the description of the land in the sale deed concerned had been found to be erroneous as Khata No. and Khesra No. had not been stated correctly, therefore, 6 the Addl. Collector was correct in holding that the sale deed could not have been relied upon for creating jamabandi in favour of the petitioner. It had further been submitted that the term “Collector” has been defined under Section 2(c) of the Act, which also includes an Additional Collector. It was also contended that the Addl. Collector might have been delegated with power by the authority concerned to decide the revision under the Act. Learned counsel for the State submitted that though the Jamabandi was created in favour of Jata Rai on the basis of the return filed but how a new Jamabandi could have been created in favour of the petitioner was unexplained. However, he could not answer the question as to why after purchase of the land, there could not have been correction in the existing Jamabandi by mutating the name of the purchaser in place of his vendor. On point of maintainability of the appeal and the revision, learned counsel fairly admitted that as has been held by this Court in Kapildeo Singh & Ors. (supra) and in an unreported judgment in Indradeo Yadav Vs. The State of Bihar & Ors., (CWJC No. 3927/2002, disposed of 7 on 23.06.2009), the Addl. Collector was not empowered either to dispose of the appeal or the revision under the Act. Having heard the rival submissions of the parties, this Court is of the opinion that this writ application can be disposed of on the short question of law regarding the maintainability of the proceedings before the authorities concerned. The scheme of the act is that the original order has to be considered and decided by the Anchal Adhikari concerned as per the provision under Section 14 of the Act. There is appellate provision under Section 15 of the Act, which is quoted as under:- “15. Appeals.- (1) An appeal shall lie to the Land Reforms Deputy Collector against the order of the Anchal Adhikari passed under sub-section (2) of section 14, if preferred within thirty days of the date of the order appealed against. (2) No order modifying, altering or setting aside any order appealed against shall be passed under this section unless the parties concerned have been given a reasonable opportunity of being heard. (3) Subject to the provisions of section 16, 8 the order of the Land Reforms Deputy Collector on appeal shall be final.” There is a provision of revision also as provided under Section 16 of the Act, which is also quoted as under:- “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.” A plain reading of the aforesaid provisions of the Act reveals that the Anchal Adhikari being the authority at first instance has to consider and decide the 9 original order. The aggrieved party has right to appeal under Section 16 of the Act before the Land Reforms Deputy Collector concerned and there is also a provision under Section 16 of the Act empowering the Collector of the district to exercise revisional jurisdiction. In the present case, the Anchal Adhikari concerned, in place of deciding the matter, had referred the matter to the Deputy Collector Land Reforms, who had passed the original order, and the Addl. Collector, who is not empowered either to decide the appeal or the revision, had decided the appeal. Scheme and sweep of the aforesaid provisions of the Act has been considered by the Division Bench of this Court in Kapildeo Singh & Ors. (supra) as well as by this Court in Indradeo Yadav (supra). It had been held that the orders passed by the authorities, other than described in the concerned provision, would be without jurisdiction. In view of that, I am constrained to hold that none of the authorities have acted in accordance with law. In considering the appeal and passing orders thereto the Addl. Collector also had acted beyond jurisdiction. As a result, this writ application is allowed 10 and the impugned order dated 26.12.2000 passed by the Deputy Collector Land Reforms, Chapra, as contained in Annexure-2, as well as the appellate order dated 16.08.2003 passed by the Addl. Collector, Saran, Chapra, as contained in Annexure-3 are hereby set aside and the matter is remitted back to the Anchal Adhikari - Respondent No. 4 to decide the issue afresh in accordance with law preferably within six months from the date of receipt / production of a certified copy of this order. I.A. No. 5869/2008 has also been filed by the petitioner for restraining the respondents from alienating the property or from changing the physical feature of the land in question. As the petitioner and the respondents agree, this Court also directs that the parties should maintain status quo with regard to possession of the land in question till the matter is decided by the Circle Officer, Sadar, Chapra, District Saran, Respondent No. 4. dk ( Dr. Ravi Ranjan, J. )