Nachari Ishwar vs The State of Bihar and Others

Barin Ghosh and Navaniti Pd. Singh, JJ.—Heard Learned Counsel for the parties. The private respondents took recourse to Section 10B of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. Initially they succeeded, as a result, the register prepared u/s 9 of the Act stood altered. That required publication u/s 10 and that gave liberty to prefer objections and thereupon appeals. However, on the basis of such success the altered register of land was not published. The appellant accordingly went before the appellate authority u/s 10 of the Act. The appellate authority after setting aside the order by which the private respondents succeeded remanded the matter back to the authority concerned. As a result, the application made u/s 10B of the Act by the respondents was reconsidered. At such reconsideration, the authority concerned found no merit in the application of the respondents and accordingly rejected the same. In such view of the matter, there was no scope of altering the register of land prepared u/s 9 of the Act and accordingly there was no necessity of republication. It appears that the private respondents preferred an appeal against the order rejecting their application. The appellate authority held that it has no power to entertain the appeal. The reason given was that the consolidation proceeding has been closed. The private respondents thereupon approached the revisional authority u/s 35 of the Act. The revisional authority remanded the matter to the appellate authority. The order of the revisional authority was assailed in the writ petition. On remand the appellate authority passed a fresh order. The appellant by filing the writ petition challenged the order of the revisional authority as well as of the appellate authority. The Writ Court felt that questions of fact have been decided by two authorities in the same manner and accordingly there is no scope of interference.

Before us the Learned Counsel appearing on behalf of the appellant submitted that Section 10B of the Act does not confer a right to appeal upon a person who has lost while taking recourse to the said Section. It was submitted that inasmuch as recourse lo Section 10B of the Act can be taken until notification u/s 26A is published, if a notification u/s 26A has not been published, recourse to Section 35 may be taken when an application u/s 10B is unsuccessful. It was, therefore, submitted that the order of the revisional authority remitting back the matter to the appellate authority as well as the order of the appellate authority are without jurisdiction.

We think that what has been submitted before us by the Learned Counsel appearing on behalf of the appellant is correct. Section 10B of the Act does not confer a right to appeal to the person, who has failed to succeed while invoking the provisions of the said Section. Once the said Section is successfully invoked, the register of land automatically stands altered and therefore the legislature in subsection (2) of said Section has provided that the provisions of Sections 8 & 9 shall mutatis mutandis apply to the hearing and decision of any matter raised under sub-section (1) of the said Section as if those were matters raised under the aforesaid Sections. As a result, the altered register of land would be required to be republished u/s 10, opening the gate for objections and appeals but if Section 10B is not successfully invoked, in other words, if by reason of rejection of the application, the register of land is not altered, there is no scope of publication thereof and as a result there shall be no further objection or appeals available thereto. The unsuccessful person, in such circumstances, may take recourse to revisions u/s 35 of the Act, if by that time notification u/s 26A or sub-section (1) of Section 4 has not been published. In the instant case, the private respondents having been unsuccessful in invoking the provisions of Section 10B of the Act, it could agitate the matter before the revisional authority by taking recourse to Section 35 and the revisional authority was required to hear and dispose of the revision application. It could not remand the matter to the appellate authority.

In those circumstances, we allow the appeal and set aside the judgment and order under appeal and at the same time allow the writ petition by quashing the order of the revisional authority dated 7.6.1994 and the appellate authority dated 25.8.1994.

The matter is remitted back to the revisional authority, who shall hear de novo the revision as was filed by the private respondents before him in Revision Case No. 125/1994. The appeal stands disposed of. There shall be no order as to costs.