IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2177 of 2006 1. DR.SHYAM NANDAN PRASAD YADAV s/o Late Mohit Narain Yadav. 2. Vinit Kumar @ Vinit Kumar Vinamra s/o Dr. Shyam Nandan Prasad Yadav, both residents of Jai Nagar, P.O. & P.S. Jai Nagar, District- Madhubani. … Petitioners. Versus 1. THE STATE OF BIHAR 2. The Sub Divisional Officer, Jai Nagar, District- Madhubani. 3. Dr. Ambika Prasad Singh, s/o Late Kedar Narayan Singh r/o Jai Nagar, P.O & P.S. Jai Nagar, District- Madhubani. … Respondents. With Cr.Misc. No.21387 of 2007 1. DR.SHYAM NANDAN PRASAD YADAV @ Shyam Nandan Prasad, son of late Mohit Narayan Yadav. 2. Binit Kumar “Vinmra” son of Shyam Nandan Prasad Yadav. Both resident of village- Jainagar, P.S.- Jainagar, District- Madhubani. … Petitioners. Versus 1. THE STATE OF BIHAR 2. The Sub Divisional Officer, Jainagar, District- Madhubani … Opposite parties. ------ For the petitioner : Mr. Suraj Nr. Yadav, Adv. : Mr. Saroj Kumar, Adv. For the State : Mr. Lalit Kishore, A.A.G.-3 ----------- 6. 01.09.2010 CWJC No. 2177 of 2006 Having heard counsel for the parties as also taking into account the affidavit filed today on behalf of Principal Secretary of Revenue and Land Reforms Department of the Government of Bihar dated 28.6.2010 plainly and squarely answering the issues in favour of the petitioners, this Court will have no hesitation in allowing this writ 2 application by quashing the impugned order contained in Annexure- 1, 2 and 8 inasmuch as the Principal Secretary of Revenue and Land Reforms Department with regard to the following relief; “(i).For issuance of a writ in the nature of certiorari to quash the notice dated 25.11.2005 issued under the seal and sign of the respondent no. 2 to the petitioners in Demarcation Case No. 2/05- 06 as contained in Annexure-1 to this writ application. (ii)For issuance of a writ in the nature of certiorari to quash the order dated 7.12.2005 passed by the respondent no. 2 in Demarcation Case No. 2/05-06, as contained in Annexure-2 to this writ application, purporting to restrain the petitioners and respondent no. 3 from making any construction on the land of the petitioners. (iii) For issuance of a writ in the nature of certiorari to quash the order dated 24.1.2006 passed by the respondent no. 2 in Demarcation Case No. 2/05-06 passed by the respondent no. 2 in Demarcation Case No. 2/05-06, as contained in Annexure- 8 to this writ petition, purporting to initiate criminal proceeding u/S 188 I.P.C. against the petitioners for violation of the order as contained in Annexure-2 to the writ petition. (iv) For issuance of a writ in the nature of Mandamus and/or any other appropriate writ declaring the entire proceeding of the Demarcation Case No. 2/05-06 as void ab-initio, illegal and without jurisdiction and not to interfere with the possession of the petitioner over his land. 3 (v) For issuance of a direction commanding upon the respondent no. 2 to produce the entire case records of the aforesaid Demarcation Case No.2/05-06 before this Hon’ble Court.” has straightway taken a stand that the Sub- divisional Officer in the State of Bihar has not been vested the power of a Collector under Bengal Survey Act, 1875. In this context, paragraph 3 and 4 of the affidavit filed on behalf of Principal Secretary and sworn at his instance by one Mahipal Singh Yadav, Deputy Secretary, Revenue and Land Reforms Department reads as follows; “3. That the present counter affidavit is being filed in compliance of the order of this Hon’ble Court dated 28.4.2010, whereby the Hon’ble Court had directed the deponent to ascertain whether there is any notification of the Government, generally or specifically vesting the powers of the Collector for the purpose of Section 2 of the Bengal Survey Act, 1875 to the sub-divisional officer. 4. That it is respectively submitted that no record as well as notification is available in the department regarding vesting the powers of a Collector for the purpose of Section 2 of the Bengal Survey Act, 1875 to the Sub-Divisional Officer.” Once this aspect becomes clear that the Sub- divisional Officer had no authority to pass the impugned 4 order, there would be no difficulty in holding that the resultant impugned order was passed by an authority who had no jurisdiction to do so. That being so, this writ application is allowed in the light of the stand taken by respondents in their counter affidavit and the impugned orders as contained in Annexure- 1, 2 and 8 are hereby quashed. Cr. Misc. No. 21387 of 2007 Heard counsel for the parties. The petitioners have assailed the order dated 15.1.2007 passed in Cr. Revision No. 854 of 2006 affirming the order taking cognizance dated 25.4.2006 passed in G O. Case No. 22 of 2006 for offence under Section 188 I.P.C. solely on the ground that there could be no violation of an order passed by an authority who had no jurisdiction to pass such an order. In this context, it has been the case of the petitioners that they were sought to be prosecuted only because of an alleged violation of the order passed by the Sub-divisional Officer, Jai Nagar in a Demarcation case under Bengal Survey Act. The petitioners therefore had straightway challenged the said 5 order passed by the Sub-divisional Magistrate, Jai Nagar in CWJC No. 2177 of 2006 which has been disposed of today itself by the aforementioned order wherein the impugned order passed by the Sub-Divisional Officer has been quashed on the ground of jurisdiction. Therefore once this Court has come to a finding that the said order was itself illegal and was passed by the S.D.O., Jai Nagar without any authority of law, there would also be no question of its violation by the petitioners for constituting an offence under Section 188 of the Indian Penal Code. That being so, this application is allowed and the impugned order taking cognizance and its affirmance by the revisional Court is also hereby quashed. kanchan/- ( Mihir Kumar Jha, J.)