CIVIL WRIT JURISDICTION CASE No.3491 OF 1991 In the matter of an application under Articles 226 and 227 of the Constitution of India. 1. BHAGWAN JHA 2. MADNANAND JHA 3. SHYAMANAND JHA 4. PAWAN KUMAR JHA ALL SONS OF LATE KISHORI JHA, RESIDENT OF VILLAGE MANIK CHAUK, P.S. RUNNISAIDPUR, DISTRICT SITAMARHI. ---- PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE DIRECTOR CONSOLIDATION, BIHAR, PATNA. 3. THE JOINT DIRECTOR OF CONSOLIDATION (HEAD QUARTER), BIHAR, PATNA. 4. THE DEPUTY DIRECTOR OF CONSOLIDATION, SITAMARHI 5. THE CONSOLIDATION OFFICER, RUNNISAIDPUR, SITAMARHI 6. SRI KALANATH JHA, SON OF LATE SUBANSH JHA, RESIDENT OF VILLAGE MANIKCHAK, P.S. RUNNISAIDPUR, DISTRICT SITAMARHI ---- RESPONDENTS For The Petitioners : Mr. Bhubneshwar Prasad, Advocate For the private respondent : Mr. Baidyanath Thakur, Advocate Mr. V.K. Singh, Advocate For the State : Mr. Mukund Mohan Jha, A.C. to S.C. 7 P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. The petitioners have challenged the order dated 2.1.1991, passed by the Joint Director of Consolidation (Head quarter) Bihar, Patna under Section 35 of the Bihar Consolidation of Holdings & Prevention of Fragmentation Act, 1956 (hereinafter referred to as ‘the Act’). 2. The short facts are that there 2 was a consolidation proceeding. The petitioners’ name came to be recorded on Plot No. 15975 measuring 4 decimals in village Manikchak and statement was prepared under Section 9A. The date on which the statement was prepared has not been mentioned in the pleadings of the writ application. Plot No. 15975, 15974 and 15976 have been carved out of Cadastral Survey Plot No. 5584. The petitioners and opposite parties come from the common ancestor-Subansh Jha, thus the petitioners’ father and the respondents’ father are cousins. 3. On learning of the application under Section 9 and 9A of the Act, the respondent no. 6 filed an objection under Section 10(2) of the Act. The case of the respondents is that there was a partition between the family before the cadastral survey. The respondents allowed the father of the petitioners Kishori Jha to live on part of the house belonging to the respondents situated on Plot No. 15975. The respondents taking advantage of this fact got their name entered in the consolidation 3 proceedings. The petitioners on the other hand claim that they were in possession of the land and as such the appeal of the respondents has been wrongly allowed by the Joint Director, Consolidation. 4. The Consolidation Officer allowed the objection of the petitioners dated 23.5.1987, whereas the Deputy Director set aside the order of the Consolidation Officer vide order dated 11.8.1989 which was reversed by the Joint Director by the impugned order. 5. The points raised on behalf of the petitioners are that the petitioners did not get an opportunity to be heard by the Joint Director, as after the death of their father, notices were not issued to the substituted heirs. The petitioners also claim that once the notification is issued under Sections 9 and 9A, the objection filed under Section 10(3) ought to be filed within the prescribed period of 30 days. Lastly, it has been submitted that petitioners are in possession of the land and as such the entry of the names of the petitioners in the 4 consolidation proceedings has rightly been incorporated. 6. This Court will first deal with the claim of the petitioners that after the death of Kishori Jha, his heirs were not substituted in the proceedings before the Joint Director. 7. Learned counsel for the respondents points out the settlement made at paragraph 6 (page 65) in the reply petition filed by respondent no. 6 “that on 21.9.1989 the Respondent No. 6 Kala Nath Jha (the petitioner in the said case) filed a substitution petition which was allowed on the same day without notice to the heirs of the deceased opposite party. However, notice was issued to the substituted heirs for hearing of the case on 6.12.1989. That on 6.12.89, notices were sent but from the order sheet dated 10.5.90, 27.6.90, 5.9.90, 14.11.90 and 12.12.90 it does not appear that the notices were served on the said substituted heirs.” 8. It is claimed by the petitioners 5 that in fact notices were issued but were not served on the said substituted heirs. For this purpose counsel for the respondents relies on the statement made in the counter affidavit filed on behalf of the respondents, in which it has been categorically stated, that after receipt of the notice one of the petitioners Madan Jha @ Madnand Jha (petitioner no. 2) appeared before the Director, Consolidation by filing Vakalatnama. It is said that his lawyer subsequently left pairvi of the case and, therefore, it cannot be said that the order is bad because it violates the principles of natural justice. I thus find that there was compliance of orders issuing notices, to the petitioners, as a result of which at least one of the petitioners did appear in the case. Therefore, the pleadings on behalf of the petitioners that the order should be set aside and remanded because of non-compliance of natural justice is rejected by this Court. 9. I shall also consider it expedient in the circumstances, to consider all aspects of the case including the merits 6 of the case, since the case is very old and all the facts are before the Court and thus the parties are in effect getting full opportunity of placing their facts and the documents. 10. The argument is that the objection filed by the petitioners is time barred in view of the provisions of Section 10 of Sub Clause 2 which prescribes 45 days time for filing an objection before the Assistant Consolidation Officer, after preparation of the records of right and map under Sub section 2 of Section 9 and the statement of principles prepared under Section 9A for correcting or disputing the correctness and nature of entries in the records. In the entire writ application the petitioners have not given any date with respect to the publication or preparation of register/record of rights/map under Section 9 and 9A and as such it cannot be said that the objection under Section 10 is barred by the provisions of Sub section 2 of Section 10. In fact this Court finds that this objection was not taken before the Consolidation 7 Officer, the Deputy Director or the Joint Director, Consolidation and it seems that it is an after thought raised before this Court without there being supporting foundational facts to back the submission made. 11. Lastly, this Court will deal with the question whether the proceedings under the Consolidation Act would be maintainable, in view of the fact that the purpose of enacting the Bihar Consolidation of Holdings Act is to give an opportunity to the agriculturist to consolidate their holdings in order to facilitate agricultural growth. In this context the definition of land Sub section 9 of Section 2 is relevant which reads as follows: ‘Land’ “Agricultural land and horticulture land, Kharaur Land, Land with Bamboo clumps, pasture land, cultivable land, homestead land, wells and water channels.’ 12. The definition clearly does not speak of consolidation proceedings to be applicable to a residential house. In this case both the parties accept that the subject matter of the proceeding is a residential 8 house. Both parties are claiming that it came into their exclusive share by way of partition. I, therefore, hold that the order dated 2.1.1991, passed by the Joint Director, Consolidation ordering that the disputed plot should be entered in the name of the respondent Kalpnath Jha is quashed. 13. This writ application is allowed. Any party aggrieved may get their rights settled by way of filing a partition suit, if so advised. Patna High Court The 6th of July, 2010 A.F.R./Sanjay (Sheema Ali Khan, J.)