Kalwati Devi vs The Joint Director, Consolidation and Others

Barin Ghosh and Madhavendra Saran, JJ.—Sakaldeep Bhagat, Chandradeep Bhagat, and Jagdeep Bhagat were recorded as raiyats in the record of rights relating to the subject and comprising of 57 decimals. There is no dispute that in relation to the land in question a notification u/s 3 of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act) was published. There is also no dispute that during the relevant time no notification u/s 26A of the Act closing consolidation proceeding had been published. There is no dispute that Sakaldeep Bhagat died in 1986. One Sumitra Devi claiming to be the wife of Sakaldeep Bhagat took recourse to section 6 of the Act and sought for permission to sell 19 decimal of such land to the appellant. The Consolidation Officer granted such permission. Private respondents then preferred an appeal and thereby challenged permission granted to Sumitra Devi to sell 19 out of the said 57 decimal of land. The private respondents were successful in the appeal and in consequence thereof the permission granted in favour of Sumitra Devi was revoked. Sumitra Devi thereupon filed an application u/s 35 of the Act seeking revision of the order of the appellate authority. The revision was allowed. Aggrieved thereby the private respondents filed the writ petition and thereby contended that having regard to the mandate contained in sub-section (4) of section 6 of the Act the revisional authority had no jurisdiction to interfere with the order passed by the appellate authority which has become final. The writ court accepted the contention of the private respondents and, accordingly, allowed the appeal and set aside the revisional order. Being aggrieved thereby the purchaser to whom Sumitra Devi wanted to sell 19 out of 57 decimal of the subject land has preferred the appeal. Sub-section (4) of section 6 of the Act declares finality pertaining to the permission the moment an appellate order is passed. Similarly sub-section (6) of section 10 of the Act brings about finality pertaining to a published register of land and statement of principles the moment the appeal pertaining to objection thereon is decided by the appellate authority.

In the case of Inder Rai vs. Joint Director of Consolidation; reported in 1996 Patna L.R. 402,. a Division Bench held that a revision is not maintainable against the appellate order passed u/s 6 of the Act. In Jagarnath Thakur vs. State of Bihar; reported in 1984 PLJR 310; a Division Bench held that section 35 of the Act authorises a revision against an appellate order passed u/s 10 of the Act. A similar view was taken by a learned single Judge in the case of Shiv Kr. Thakur vs. State of Bihar; reported in 1985 PLJR 986 : 1995 P.L.J.R. 986.

Ultimately, the matter went before a Full Bench of this Court in the case of Seikh Haidar Zan Vs. Md. Yusuf Ansari and Another, . The Full Bench noticed a judgment of the Hon''ble Supreme Court rendered in the case of Pritam Singh vs. Assistant Director of Consolidation; (1996)2 Supreme Court Cases 270. The Hon''ble Supreme Court in that case was concerned with section 48 of the U.P. Consolidation of Holdings Act, 1953 which is almost identical to the provisions contained in section 35 of the Bihar Act. That is also the finding of the Full Bench. The Full Bench, after considering the judgment of the Hon''ble Supreme Court, held that the revisional authority exercising jurisdiction u/s 35 of the Act has unfettered power and jurisdiction to pass any suitable order for doing complete justice between the parties which leaves little room for doubt that the power u/s 35 of the Act is an independent power unfettered or uncircumscribed by any other provision of the Act. In those circumstances, despite the appellate order concluding the matters dealt with u/s 10 of the Act finally, it is open to the revisional authority exercising power u/s 35 of the Act to pass suitable order for doing complete justice between the parties.

In view of such clear cut pronouncement of the Full Bench of this Court, it would be appropriate on our part to hold that a revision application against the appellate order passed u/s 6 of the Act is maintainable and not to follow the judgment of the division Bench rendered in the case of Inder Raj.

In those circumstances, the order under appeal is set aside.

However, having regard to the fact that there is no pronouncement by the appellate or revisional authority that Sakaldeep Bhagat after the death of his wife Smt. Sita Devi, married Sumitra Devi and, accordingly, Sumitra Devi was entitled to inherit Sakaldeep Bhagat, we also quash the appellate as well as revisional orders and remand back the matter to the appellate authority who shall decide whether Sumitra Devi was entitled to inherit Sakaldeep Bhagat and thereupon to decide whether she was, accordingly, entitled to apply for and obtain permission to sell, as she had applied for and to which permission was granted. The appeal is, accordingly, disposed of.