CIVIL WRIT JURISDICTION CASE No.7550 OF 1990 In the matter of an application under Articles 226 and 227 of the Constitution of India. 1(A) SMT.MUNIA DEVI, WIFE OF LATE PARMESHWARI YADAV (B) CHANDRA KISHORE YADAV, SON OF LATE PARMESHWARI YADAV (C) ANITA KUMARI, DAUGHTER OF LATE PARMESHWARI YADAV (MINOR) ALL ARE RESIDENT OF VILLAGE MAHESHWAR, P.S. TRIVENIGANJ, DISTRICT SUPAUL. (D) BECHANI DEVI, DAUGHTER OF LATE PARMESHWARI YADAV, WIFE OF SUBODH YADAV, RESIDENT OF VILLAGE NASI, P.S. TRIVENIGANJ, DISTRICT SUPAUL 2 KISHUN DEYAL YADAV, SON OF LATE KHUSILAL YADAV, RESIDENT OF VILLAGE MAHESHWA, P.S. TRIVENIGANJ, DISTRICT SAHARSA ------------------------------------------------------------------------------------ PETITIONERS Versus 1. THE STATE OF BIHAR 2. DIRECTOR, CONSOLIDATION, BIHAR, PATNA. 3. JOINT DIRECTOR, CONSOLIDATION, BIHAR, PATNA 4. CONSOLIDATION OFFICER, TRIVENIGANJ, P.S. TRIVENIGANJ, DISTRICT SAHARSA 5. DUKHI YADAV 6. SUKHAI YADAV 7. BIRENDRA YADAV 8. MANOJ YADAV 9. ANIL YADAV, RESPONDENT NOS. 5 TO 9 SONS OF LATE DHORAI YADAV, RESIDENT OF VILLAGE MAHESHWA, P.S. TRIVENIGANJ, DISTRICT SAHARSA 10.GHUTAR YADAV, SON OF MAHABIR YADAV, RESIDENT OF VILLAGE MAHESWA, P.S. TRIVENIGANJ, DISTRICT SAHARSA ------------------------------------------------------------------------------------ RESPONDENTS For The Petitioner : Mr. SHASHIDHAR JHA, ADVOCATE For The State : Mr. SANAT KUMAR MISHRA, A.C. TO G.A. 2 P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. I.A. No. 1945 of 2009 This interlocutory application has been filed to expunge the name of petitioner no. 2 and add the name of heirs of petitioner no. 2 which have been described at paragraph 3 of 2 the interlocutory application. The heirs of petitioner no. 2 have appeared through Vakalatnama. Therefore, this Court is proceeding with the hearing of this case. 2. The interlocutory application is allowed. ORDER 3. Learned counsel for the petitioners challenges the order dated 18.1.1988 passed in favour of the respondents by which the Joint Director has entertained the revision application under Section 35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act after a period of 9 years. 4. The facts of the case are that the land originally belonged to one Thenghu Mandal who had two sons Bishun (heirs of Bishun are the respondents) and Gujai (heirs of Gujai are the petitioners). The petitioners claim that the lands in question were ancestral lands, Bishun being the Karta of the family was recorded in the cadastral survey. There has been no partition of the lands prior to the consolidation proceedings. 5. Nobody appeared on behalf of the respondents. However, from the order of the Joint Consolidation Officer, it would appear that the heirs of Bishun are claiming the entire land on the basis of the entry of the cadastral survey and on the basis of the fact that Malguzari receipts have been issued in their name. 6. Respondents had filed an application for entrying their name in the Chak Khatiyan before the Assistant 3 Consolidation Officer. Considering the fact that the parties could not come to a compromise, the Assistant Consolidation Officer by order dated 16.7.1976 referred the matter to the Consolidation Officer. The respondents thereafter filed an appeal challenging the order dated 16.7.1976 which was dismissed by the Deputy Director Consolidation, Saharsa. Vide Annexure-3, the matter was placed before the Consolidation Officer who on the basis of the report of the Advisory Committee came to the conclusion that the name of both the petitioners and the respondents should be recorded half and half with respect to the lands in question. Thereafter no appeal or revision etc. was filed and the matter stood concluded. Nine years thereafter, an application was filed on behalf of the respondents before the Joint Director, Consolidation under Section 35 of the Consolidation Act. 7. Section 35 of the Consolidation Act envisages that “The Director of Consolidation may of his own motion or on the application of any party or on reference being made by any subordinate authority, call for and examine the record of any case decided or proceedings taken by such authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality, or propriety of any order passed by such authority in the case of proceedings, and may after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.” 4 8. The aforesaid provisions envisages three circumstances under which the Director, Consolidation may interfere with the orders passed by the Consolidation Officer or the Deputy Director, Consolidation (a) on his own motion i.e. he comes to know from any source, that the proceedings have not been conducted in accordance with law (b) on reference being made by any sub-ordinate authority to him regarding any aspect of the consolidation proceedings and (c) on an application being filed by the parties. 9. In this case an application was filed by the respondents for reconsidering the matter, on the ground that the procedure was not properly followed. Learned counsel for the petitioners argues that the application has been filed after a delay, which is an after thought, without there being any explanation regarding the reasons for filing an application under Section 35 of the Consolidation Act after 9 years. To this extent the argument advanced on behalf of the petitioners is justified. Undoubtedly the power of the Joint Director/Director, Consolidation is wide, but it has to be exercised in a manner and for reasons which are judicious. 10. This Court finds that the order of the Consolidation Officer, that the Chak should be recorded half and half in the name of the petitioners and the respondents may be correct or in correct, but one thing is certain that the order lacks reasons, it does not record the stand of the parties and has not considered the contrary submissions, if any, that were made on 5 behalf of both the petitioners and the respondents. In this extent, this Court may observe that actually the order was passed without considering the material facts. On the other hand, this Court also finds that the order of the Joint Director cannot be upheld by this Court on two grounds. Firstly, it appears from Annexure- 4 which is entire order sheet of the proceedings before the Joint Director, indicates that although notices were issued and filed by the respondents on 18.11.1987. There is nothing in the order sheet that would indicate that the notices were validly served to the petitioners. Therefore, in effect the order has been passed without hearing the petitioners in contravention of the principles of natural justice and must be set aside on this ground alone. I also find defect in the reasoning of the Joint Director, inasmuch, as he has held, only on the basis of the Cadastral Survey and Mal Guzari in the name of the ancestors of the parties i.e. Bishun, that the respondents would be entitled to the entire share of the lands in question. This finding is based on hearing only one side of the story and, therefore, has to be set aside. 11. In the result, I quash the order contained in Annexure- 4 dated 18.1.1988, passed by the Joint Director, Consolidation, Bihar, Patna and remand the matter back to the Joint Director who will issue notices to both the parties and hear them with respect to merits of the case and also call upon the respondents to explain the delay in filing the application under Section 35 of the Consolidation Act after a delay of 9 years. 6 12. The petitioners are at liberty to bring this order to the notice of the Joint Director/Director, Consolidation within a period of two months from the date of receipt of a copy of this order. 13. This application is allowed to the extent mentioned aforesaid. Patna High Court The 24th of August, 2010 N.A.F.R./Sanjay ( Sheema Ali Khan, J.)