3 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2204 of 2002 Ram Kawal Dubey, son of Ramayan Dubey resident of Village Karmaini, P.S. Dinara (Bhanas) O.P. District- Rohtas ------- Petitioner. Versus 1. The State of Bihar 2. The District Magistrate, Rohtas at Sasaram 3. The D.C.L.R. Bikramganj at, P.O. and P.S. Bikramganj, District-Rohtas 4. The Circle Officer, Dinara Circle, at and P.O. + P.S. Dinara, District- Rohtas -------- - Respondents Ist Set. 5. Ram Jas Dubey, son of late Ramayan Dubey, resident of Village-Bhuawal, P.S. Dinara, District- Rohtas ------ Respondent 2nd Set. ---------- 5. 19.11.2008 Heard Mr. Anshuman for the petitioner, learned Junior Counsel to Standing Counsel No.5 for respondent nos. 1 to 4, and Mr. Bishnu Kant Dubey for respondent no.5( Ram Jas Dubey). It arises out of mutation proceedings under the provisions of the Bihar Tenants Holding (Maintenance of Records) Act, 1976 (hereinafter referred to as the „Act‟). Whereas the petitioner claims exclusive possession and mutation with respect to the lands in question, respondent no.5 has set up his case for mutation to the extent of half and half between him and the petitioner. The learned first authority upheld the petitioner‟s claim and ordered for mutation of the lands in question exclusively in favour of the petitioner, the same was set aside by the learned appellate authority and the stand taken by respondent no.5 was upheld, and has been upheld by the learned revisional authority. 2. A brief statement of fact essential for the disposal of the 2 writ petition may be indicated. The following lands are in question: ” “ ” 3. The genealogy of the parties relevant in the present context as stated in paragraph 3(1) of the writ petition is reproduced hereinbelow:- Buta Dubey / / / Ram Dhani Dubey Ram Deni Dubey / / Ramayan Dubey Acchaibar Dubey ---------------------------------------- / / Ram Jas Dubey Ram Kawal Dubey (Respondent no.5) ( Petitioner) 4. The lands in question were belonged to Achaibar Dubey who died issue-less. The petitioner and respondent no.5 are full brothers. According to the petitioner‟s case, he lived with Achaibar Dubey from his childhood served him till his end and, on account of love and affection, intended to hand over the same to the petitioner. He has been dealing with the property as sole heir and legal 3 representative of Achaibar Dubey and, in his submission, evidence of the same is set out in paragraph 19 of the writ petition. On the other hand, respondent no.5 has taken the stand that Achaibar Dubey did not execute a will, gift or document of sale, or any other registered document alienating the lands in question in favour of the petitioner. In view of the genealogy, the property has really come to the petitioner and respondent no.5 half and half. 5. The petitioner filed an application under the Act before the learned Circle Officer which was allowed, and the entire lands in question has been directed to be mutated in the name of the petitioner by order dated 13.11.1987. Aggrieved by this order, respondent no.5 preferred statutory appeal which has been allowed by the order dated 25.1.2001 (Annexure-7), passed by the learned Land Reforms Deputy Collector, Bikramganj, Rohtas, in Mutation Appeal No.106 of 1999-2000 (Ram Jas Dubey Vrs. Ram Kawal Dubey), whereby he set aside the order of the learned Circle Officer, upheld the stand taken by respondent no.5, and has ordered for mutation of the lands in question between the two brothers half and half. The revision application preferred by the petitioner has been rejected by the learned Collector of the District- Rohtas (Sasaram) passed in Mutation Revision Case No. 22 of 2001(Ram Kawal Dubey Vrs. Ram Jas Dubey), by his order dated 16.10.2001(Annexure-8). Hence this writ petition at the instance of the petitioner. 6. While assailing the validity of the impugned order, 4 learned counsel for the petitioner submits that the appeal of respondent no.5 was hit by delay, having been preferred about 13 years after the order of the learned Circle Officer. He next submits that in view of section 15 read with section 31 of the Act, the provisions of section 5 of the Limitation Act is in-applicable to the proceedings under the Act. In his submission, section 29 of the Limitation Act supports this contention. He relies on the judgment reported in A.I.R. 2003 SC 1543(Nasiruddin and others Vrs. Sita Ram Agarwal) (Paragraph nos. 40 to 43 and 45 to 47). He next submits that the learned appellate authority under the Act is not court and, therefore, the provisions of the Limitation Act are in- applicable. He relies on the judgment reported in A.I.R. 1985 SC 1279(Sakuru Vrs. Tanaji). Therefore, in the absence of any provision for condonation of delay, the authorities have to act within the four corners of the Act. The order of the learned appellate authority condoning the delay is bad in law. He submits that in view of the statement made in paragraph 19 of the writ petition read with Annexures thereto, it is abundantly clear that Achaibar Dubey intended that the properties should pass on the petitioner. The documents also fully establish the stand that he has been dealing with the properties as heir and true owner of Achaibar Dubey. 7. Learned counsel for respondent no.5 has supported the impugned order. He submits that the learned first authority did not issue any notice to respondent no.5. He was, therefore, not aware of the delay in filing the appeal. He next submits that the very basis of 5 the order of the learned Anchal Adhikari is on false representation of the petitioner, namely, that he was the son of Achaibar Dubey. He next submits that the provisions of section 5 of the Limitation Act are applicable to the proceedings under the Act. He was able to explain the delay, and satisfy the learned appellate authority, in approaching belatedly. 8. We have perused the materials on record and considered the submissions of learned counsel for the parties. I do not wish to examine the question of applicability or otherwise of section 5 of the Limitation Act to the proceedings under the Act because it can be disposed of on shorter grounds. It is evident that Achaibar Dubey died issueless leaving behind the heirs of Ramdeni Dubey who are now survived by the petitioner and respondent no.5. It is indeed true that the petitioner in paragraph 19 of the writ petition serialized a large number of documents and circumstances in an effort to establish that he has been dealing with the lands in question. On the other hand, respondent no.5 has also placed on record materials to show that the lands in question were always intended to be divided half and half between the parties. It, therefore, raises the question of title which can not be adjudicated in proceedings under the Act. It is equally evident that the petitioner has not placed on record any registered document whereby Achaibar Dubey had alienated the lands in question absolutely in favour of the petitioner. Subject to adjudication of title in a civil court of competent jurisdiction, the obvious inference within the narrow scope of a mutation proceeding 6 is that the property should pass on half and half to the petitioner and respondent no.5. In that view of the matter, the order of the learned first authority dated 13.11.1987 appears to be a case of misdirection. 9. It suffers from one more serious error. It is manifest from a perusal of the report of the Halka Karamchari (Annexure 5/2 to the counter affidavit) that the petitioner‟s application before the learned Circle Officer proceeded on the footing that the petitioner is the son of late Achaibar Dubey which is prima facie incorrect. Consequently, the decision taken by the learned Circle Officer on that basis becomes non-est in the eye of law. 10. The proceedings suffered from one further error. It is evident from a perusal of the order of the learned appellate authority that the learned first authority had not issued notice of the proceedings to respondent no.5. It is thus obvious that the order of the learned Circle Officer was passed by the back of respondent no.5. There was indeed delay of 13 years in preferring the appeal. Supposing for the sake of argument that the provisions of section 5 of the Limitation Act were applicable to the proceedings under the Act, I have hesitation in concluding that the learned appellate authority had applied its mind to this aspect of the matter and was satisfied that respondent no.5 had approached belatedly for valid reasons and the delay was explained to his satisfaction. There is yet another aspect of the matter. Suppose for the sake of argument that the provisions of section 5 of the Limitation Act are in-applicable in the present case, then the appeal becomes barred by limitation and, 7 therefore, the appellate authority had no jurisdiction to entertain the appeal. Then what is the course open to this Court. Law is well settled that the writ Court should not pass an order to perpetuate an illegality. In the facts and circumstances of the case, I am convinced that the order of the learned first authority was erroneous, and was rightly set aside by the learned appellate authority and up-held by the revisional authority. For the reasons indicated hereinabove, this Court in exercise of its discretionary prerogative writ jurisdiction should not revive an illegal order. 11. The issue came up for consideration before the Supreme Court in the case of Mohammad. Swalleh & Ors. V. Third Addl. District Judge, Meerut and others, reported in (1988) 1 SCC 40. Proceedings were taken under the U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972, and certain orders were passed. The aggrieved person preferred appeal before the learned District Judge who disposed of the matter on merits. The aggrieved party moved the High Court of Allahabad in writ jurisdiction and contended that there is no provision for appeal under the Act and, therefore, the appeal before the learned District judge was incompetent. The Allahabad High Court up-held the contention of the aggrieved party that there is no provision for appeal under the Act, the learned District judge is alien to the Act and, therefore, the appeal was wholly incompetent. The High Court, however, in exercise of the writ jurisdiction under Article 226 of the Constitution, came to the conclusion that the order passed by the 8 learned District Judge was entirely correct and setting aside the same would have resulted in reviving and perpetuating a patently illegal order of the first authority under the Act. The High Court, therefore, adopted the order of the District Judge as its own order. The Supreme Court up-held the order of the High Court. I had occasion to apply this principle of law in the case of Sri Prakash Singh V. State of Bihar reported in (2002) 1 BLJR 600. That was a case under the Public Demand Recovery Act, and the learned Collector had exercised powers vested in him by law although in excess of the same. I am in no doubt that the present case is squarely covered by the aforesaid two judgments. 12. In the result, I would prefer to uphold the orders of the learned appellate authority and revisional authority. The writ petition is accordingly dismissed. Vinay/ ( S. K. Katriar , J.)