CIVIL WRIT JURISDICTION CASE No.9274 OF 1991 KAMLA PRASAD VERMA Attorney, Madan Madan Lal, Anand Bhawan, Station Road, Dehri-on-sone, P.S. Dehri, Distt. – Rohtas. ---------------(Petitioner) Versus 1. The State of Bihar. 2. The Collector, Bhojpur, (allegedly exercising his power as superintendent of Survey, Bhojpur and Rohtas, Arrah) 3. Satya Narayan Prasad 4. Parama Nand Prasad 5. Ashok Kumar All sons of Kanhai Ram 6. Ram Chandra Prasad 7. Rajesh Kumar Both Sons of Jagdish Prasad All residents of Mohalla – Station Road, Dehri, P.S. – Dehri, Distt. – Rohtas. ------------(Respondents) ----------------------------- For The Petitioner : Mr. V, Nath, Advocate Mr. Radha Mohan Pandey, Advocate Mr. Mithilesh Kr. Sinha, Advocate For The State : Mr. Rajesh Kumar, J.C. to AAG-6 -------------------------- P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI ---------------- A.K. Tripathi, J. Heard learned counsel for the petitioner and learned counsel for the State. Petitioner challenges the order dated 03.09.1991 contained in Annexure – 2, passed by the Collector Bhojpur, acting as a Superintendent of Survey, Bhojpur, in Miscellaneous Petition No. 113 of 1989. By virtue of this order the certain entry made in favour of the petitioner with regard to - 2 - a piece and parcel of land relating to Tauza No. 9 has been set aside. The background to the present dispute is a piece and parcel of land which the petitioner claiming himself to be the power of attorney holder is vitally interested in. The property was supposed to be bought in auction purchase years ago and thereafter a deed in this regard was also executed, rents was being regularly paid and the possession had been claimed. But since the necessary entry/correction had not been made in the official records of Dehri Municipality, therefore a proceeding under the Bihar and Orissa Municipal Survey Act, 1920, was initiated in the year, 1989. The proceeding carried on for quite some time. Notices had issued to the parties and after the well fought out battle, based on documents and evidence furnished by both the parties an order dated 03.06.1989 came to be passed by the Assistant Settlement Officer. Entry of the names as demanded by the present petitioner was made as per the order in question as contained in Annexure – 3 to the writ application. Private respondents instead of challenging the order in appeal decided in their wisdom to take recourse by filing an application under Section 9 of the Act which relates to disposal of objections before the Superintendent of Survey. The application, therefore, was filed before the Collector Bhojpur, as a Miscellaneous Case No. 113 of 1989 and the Collector under the purported exercise of power under Section 9 passed the impugned order as contained in Annexure – 2. The petitioner - 3 - therefore, is before this court challenging the order contained in Annexure – 2. A limited submission has been made on behalf of the petitioner stating that in view of a categorical notification issued by the Government of Bihar contained in Annexure – 1, Superintendent of Survey was duly notified with his name and position if that was so, then there was no occasion for the Collector of the district concerned to exercise power under the Act. Not only this, if the private respondents had a grievance against the impugned order as contained in Annexure – 3, they had a right of appeal, but instead of taking recourse to the same they filed a miscellaneous petition before the incompetent authority and got the mater set aside as if a power of review was available with the Collector under the Act. When the matter is taken up there is no representation on behalf of the private respondents. A counter affidavit has been filed on behalf of the State is on record. The counter affidavit does not answer the questions which have been raised by the petitioner in this regard which are questions of law. It only primarily submits that since they are taxation matters, therefore, under the Act the Collector is visited with all the authorities in the District. This court has certain difficulty in accepting that stand. When the provisions of law are very clear and categorical and when there is evidence to show that the Government had duly notified the person to act as the - 4 - Superintendent of Survey under the Act, there is no occasion for the Collector of the District to exercise such authority that too in a miscellaneous petition filed before him against the order passed by the competent authority. It is also not disputed that instead of recourse to appeal, a kind of improvision was made by filing Miscellaneous Case for getting the order passed in favour of the petitioner set aside which was passed after due contest between the parties and after consideration of all the evidence and documents in this regard. The Court is of the opinion that since the order contained in Annexure – 2 is an exercise of power without jurisdiction or authority of law, the same must be interfered with. The writ application is allowed and Annexure – 2 is hereby quashed. Patna High Court, The 14th day of November, 2008 NAFR/AFR, Rajeev/ (Ajay Kumar Tripathi, J.)