IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.765 of 2010 ***** 1. SMT. BASANTA DEVI, W/O SRI CHANDRASHEKHAR SINGH, R/O VILLAGE -LASARA,POST- CHHEWARI,P.S.- RAMGARH, DISTRICT- KAIMUR (BHABHUA). …. …. Petitioner-Appellant Versus 1. THE STATE OF BIHAR THROUGH THE COLLECTOR, KAIMUR AT BHABHUA. 2. THE COLLECTOR, KAIMUR AT BHABHUA. 3. THE CIRCLE OFFICER, RAMGARH, DISTRICT- KAIMUR (BHABHUA). 4. THE CIRCLE INSPECTOR CUM ASSISTANT CONSOLIDATION OFFICER, RAMGARH, DISTRICT- KAIMUR (BHABHUA). …. …. Respondents-Respondents For the Appellant : Mr. Arun Kumar Tiwari, Advocate For the State : Mr. Mani Kant Mishra, G.P.-21 ----------- 2. 20.5.2010. In this intra-Court appeal the challenge is to the order dated 9.3.2010 passed by the learned single Judge in C.W.J.C. No. 4095 of 2010, whereby he has opined that when an order has been passed by the Assistant Consolidation Officer, the same can be challenged before the superior authority under Section 35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (for short „the Act‟). It is submitted by Mr. Arun Kumar Tiwari that the learned single Judge has fallen into grave error by expressing the view that a proceeding would be maintainable under Section 35 of the Act inasmuch as the order has been - 2 - passed pertaining to mutation. It is not disputed that the Assistant Consolidation Officer has passed the order. In the case of Mostt. Indrasani Kunwar @ Inarsani Kunwar v. The State of Bihar & Ors., 2000(2) PLJR 83, the Joint Director, Consolidation has entertained a revision under Section 35 of the Act, which was not against an order nor the proceeding that was under challenge and held that Bay-Beyana dated 21.8.90 executed by the petitioner was void as no prior permission was required under Section 5 of the Act was taken. The learned single Judge referred to Section 35 of the Act and thereafter proceeded to state as follows: - “4. It is manifest from the provision of section 35 of the Act itself that the Director of Consolidation may of his own motion or on the application of any party or on reference being made by an subordinate authority, call for and examine the records of any case decided or proceedings taken by such authority for the purpose of satisfying himself as to the regularity of the proceeding; or as to the correctness, legality or propriety of any order passed by such authority in the case or proceeding and may after allowing the parties concerned, an opportunity of being heard, make such order in the case of proceedings as he thinks - 3 - fit. 5. The wordings of section 35 of the Act make it very clear that the power of revision as envisaged under section 35 of the Act is exercisable only when an order is passed by any subordinate authority or a proceeding has been initiated by the authority under the Act. In absence of an order or a proceeding the power as envisaged under section 35 of the Act, in my opinion, is not exercisable even suo motu by the revisional authority under the Act.” In our considered opinion, the said case is distinguishable as the learned single Judge has held that the power under Section 35 of the Act could not have been exercised straightway without a proceeding being initiated before a lower forum. In the case at hand, the Assistant Consolidation Officer has passed the order. Thus, the said order can be annulled, rectified or modified in exercise of powers under Section 35 of the Act. It is settled proposition of law if an authority has exercised his jurisdiction and if the revisional authority feels that the power does not vest with him he can definitely set aside the same. In view of the aforesaid, we grant liberty to the - 4 - appellant to file a revision under Section 35 of the Act within a period of four weeks from the date of receipt of the order. The said revision petition shall be decided on merits and not thrown overboard on the ground of limitation. The petitioner is further at liberty to implead the affected parties so that there would be no lacunae in the revision petition. With the aforesaid modification in the order of the learned single Judge, the appeal stands disposed of without any order as to costs. Pawan/- (Dipak Misra, CJ) (Mihir Kumar Jha, J)