Shanti Devi vs The State of Bihar and others

S.B. Sinha & A.N. Chaturvedi, JJ.—By this application, the petitioner has raised a question as to whether a mutation proceeding abates in terms of section 4 (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. By reason of the impugned order, the learned Land Reforms Deputy Collector (hereinafter referred to as the L. R. D. C.) has held that such a proceeding abates.

Mr. Srivastava, Learned Counsel appearing on behalf of the petitioner has submitted that as the proceeding for mutation initiated in terms of the provisions of Mutation Manual, the authorities concerned are not ''courts; nor the proceeding before them is judicial proceeding and thus the question of invoking provisions of Section 4(C) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act) does not arise.

On the other hand, Learned Counsel appearing on behalf of the respondent relied upon a Division Bench Judgment of this Court in the case of Rabindra Prasad Singh Vrs. Commissioner, Patna and others 1990 B. L. J. 542. Unfortunately in that judgment, the question posed in this application were not considered nor the notice of the Bench was drawn to the earlier decision of this Court in the case of Gobri Singh Vrs. The State of Bihar and others (A.I.R. 1978 Pat NOC-88) wherein a Division Bench of this Court has clearly held that the mutation proceeding are administrative proceedings and not judicial proceedings.

It is not disputed that the Mutation Manual is really compilation of executive instructions issued by the State of Bihar and thus it does not have any statutory force. The sources of the authorities exercising power of mutation does not flow from any statute.

Such a statute enacted by the Legislature of Bihar being Bihar Tenants Holdings (maintenance of Records) Act, 1973 (hereinafter referred to as the Act, 1973) has been made applicable in the entire State of Bihar only in 1990. It is, thus, clear that the officers acting under the provisions of Mutation Manual are not courts nor the proceeding before them are judicial proceedings.

In this view of the matter, in our opinion, the provisions of Section 4(C) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 cannot have any application whatsoever in relation to a mutation proceeding. The decision of Rabindra Prasad Singh''s case (1990 B.L.J. 542) having been rendered without taking into consideration the aforementioned question as also without taking into consideration the earlier Division Bench decision of this Court in Gobri Singh''s case (supra) the same is not a binding precedent and must be held to have been rendered per incurium. This aspect of the matter has also been considered by two full Bench of this Court in the case of Rabindra Pd. Singh Vrs. The Commissioner, Patna and others (1990 P.L.J.R. 2 592) as also a recent decision of this Court in the case of Sundari Devi Vrs. The State of Bihar and others (1993 (1) P.L.J.R. 231). It however goes without saying that the Land Reforms Deputy Collector shall be entitled to pass an appropriate order in accordance with law. It has been stated before us that in relation to the self same matter, a consolidation proceeding is pending before the Collector. The Land Reforms Deputy Collector shall also consider this aspect of the matter. This application is allowed and the impugned orders are set aside but without any order as to costs.