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Ram Singhashan Singh v. K.P. Sinha, Dy. Director Consolidation And Ors.
Judgment Summary — S.B. Sinha, J.
Factual and Procedural Background
The writ applications were heard together because common questions of law and fact arose. The core dispute concerns land held by descendants of a common ancestor (Gopal Pathak). The petitioner and respondent no. 4 claimed separate cultivation and possession of the disputed lands (alleged khangi batwara / oral partition), each claiming half. During a Revisional Survey the name of Mst. Bigna Kuer (asserted by the petitioner to be only a maintenance holder) was recorded in some khatians; the petitioner alleges that after publication of a Section 3 notification in 1972 under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (the Act), respondent no. 4 obtained a deed of gift from Mst. Bigna Kuer dated 30 June 1973 which the petitioner challenged as fraudulent and void because executed after the notification and without required sanction.
Procedurally: a proceeding under Section 154 Cr.P.C. was initiated and decided in favour of the petitioner (order dated 3 January 1978). Respondent no.4 filed Title Suit No.107 of 1975 claiming partition based on the deed of gift; the petitioner contends that in terms of Section 3(c) of the Act that suit abated. A registered taksimnama (partition memorandum) was executed on 7 April 1978 reflecting the parties' arrangement. Later respondent no.4 sought opening of khata in his favour for one-third share; the Consolidation Officer (respondent no.3) rejected his claim (order at Annexure-2). Respondent no.4 appealed (Appeal No.1295 of 1983-84) to respondent no.2, who allowed the appeal by order dated 8 February 1985 (Annexure-3). The petitioner filed a revision (Revision Case No.656 of 1985) before respondent no.1 which was dismissed by order dated 14 May 1987 (Annexure-4). The petitioner claims the consolidation authorities passed the impugned orders without permitting evidence to be adduced or legally placing documents on record.
Legal Issues Presented
- Whether the provisions of the Indian Evidence Act apply to proceedings initiated under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956?
- Whether the authorities under the Consolidation Act (Consolidation Officer, Assistant Consolidation Officer, Assistant Director of Consolidation, Director of Consolidation etc.) are 'courts' within the meaning of the Evidence Act and thus bound to apply its provisions when taking evidence?
- Whether the impugned orders (Annexures-2, 3 and 4) were valid where the consolidation authorities passed orders without taking evidence or bringing documents legally on the record?
- Specific factual questions identified by the court for determination by the consolidation authorities (dependent upon evidence): (a) whether Bigna Kuer was entitled only to a maintenance right or became absolute owner under Section 14(2) of the Hindu Succession Act, 1956; (b) correctness of entry of Bigna Kuer's name in record of rights; (c) whether there had been an actual partition between petitioner and respondent no.4 and whether respondent no.4 was bound by it.
Arguments of the Parties
Petitioner's Arguments
- The petitioner asserted descent from common ancestors and claimed half-share possession by khangi batwara without formal deed of partition, relying on long continued separate possession.
- The petitioner alleged that a Section 3 notification under the Consolidation Act was published in 1972, and that a deed of gift dated 30 June 1973 (in favour of respondent no.4 from Mst. Bigna Kuer) was fraudulent and void because it was executed after the notification without sanction.
- The petitioner contended that documents and a taksimnama (dated 7 April 1978) demonstrating partition rights were placed on record during the revisional proceedings, but authorities did not legally consider them or permit oral evidence.
- The petitioner argued orders of the consolidation authorities were passed without evidence and in breach of mandatory procedure, making those orders perverse and not in accordance with law.
Respondent(s)' Position (as set out in the opinion)
- The Consolidation Officer (respondent no.3) rejected respondent no.4's khata claim and held the petitioner to be in actual possession to the extent of half (order in Annexure-2).
- The appellate authority (respondent no.2), on appeal, proceeded on the basis that the name of Mst. Bigna Kuer appeared in record of rights for two villages and held the deed of gift to be valid; it further observed that the appellant (respondent no.4) was not agreeable to possess according to the alleged partition and that the purported partition deed lacked the Consolidation Officer's permission.
- The revisional authority (respondent no.1) did not accept the petitioner's case of partition and observed insufficient evidence about when Ram Sohawan Pathak died and why Bigna Kuer was only entitled to maintenance (Annexure-4). The revisional order dismissed the petitioner's revision.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bettiah Estate v. Pushpa Devi & Others, 1986 P.L.J.R. 222 | Purpose and scheme of the Consolidation Act vis-à-vis Section 4(c). | Cited as a decision noting the purpose and scheme of the Act in relation to abatement of suits under Section 4(c). |
| Ram Krit Singh v. State of Bihar and Ors., 1979 (27) B.L.J.R. 585 | Scope and ambit of jurisdiction of consolidation authorities and effect on civil courts. | Referenced for the proposition that consolidation authorities' decisions govern and civil courts' jurisdiction is affected; relied upon to show earlier treatment of similar questions. |
| Hari Mohan Thakur & Ors. v. Mahendra Narain Chand & Ors., 1987 P.L.J.R. 88 (FB) | Authority of consolidation provisions (cited among decisions addressing the Act). | Listed as one of the judicial decisions dealing with the extent of consolidation authorities' jurisdiction. |
| Mirza Sulaiman Beg & Ors. v. Harihar Mahto & Ors., 1985 P.L.J.R. 152 | Authority on jurisdictional scope of consolidation authorities. | Referred to as part of prior decisions establishing the breadth of consolidation authorities' powers. |
| Zafar Khan & Ors. v. Board of Revenue, 1986 P.L.J.R. 10 (as cited) | Settlement of land in villages under consolidation cannot be questioned in civil or revenue courts; jurisdiction extends to fraud questions and deed validity. | Used to support the proposition that questions of fraud and validity of sale deeds are within the jurisdiction of consolidation authorities. |
| East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 A.C. 109 | Effect of a statutory legal fiction (what follows from a deeming provision). | Quoted for the principle that when statute deems an authority to be a court, inevitable consequences and incidents (such as application of rules governing courts) follow. |
| State of Bombay v. Pandurang Vinayaka, A.I.R. 1955 S.C. 244 | Followed East End Dwellings on legal fiction. | Referred to as a Supreme Court authority following the legal-fiction approach described in East End Dwellings. |
| Commissioner of Income-tax v. Teja Singh, A.I.R. 1969 S.C. 352 | Followed principles on legal fiction; cited with East End Dwellings line of decisions. | Referred to as part of authorities confirming the effect of deeming provisions. |
| Additional Income-tax Officer v. E. Alfred | Part of the line of authorities on legal fiction and deeming. | Listed among decisions following East End Dwellings (referenced to support the legal-fiction analysis). |
| Commissioner of Income-tax, Bombay v. Bombay Trust Corporation, 1930 P.C. 54 | Interpretation of the word "deemed": when statute requires treating something as if it were so in reality. | Cited to explain the meaning of "deemed" and to support the legal-fiction analysis applied to Section 37A of the Act. |
| K. Kamaraja Nadar v. Kunju Thevar | Cited decision where Bombay Trust Corporation was cited with approval. | Referred to as following the Privy Council view on "deemed" and its implications. |
| Narain Bux Singh v. State of U.P., 1981 A.L.J. 649 | Use of Bombay Trust Corporation reasoning in a Division Bench decision. | Mentioned as a case that followed the Privy Council's interpretation of "deemed". |
| Tirath Raj v. Director General Police, Lucknow, 1986 L.I.C. 275 | Application of the "deemed" / legal-fiction principle. | Cited as another decision following the explanatory approach to deeming provisions. |
| ILR (4) Cal. (15) 483 (FB) | Authority that the definition of "Court" under the Evidence Act is not exhaustive. | Used to support the view that various authorities legally authorised to take evidence qualify as courts under the Evidence Act. |
| AIR 1954 Patna 289 | Commissioner authorised to take evidence held to be a court. | Cited to show other statutory commissioners/authorities have been treated as courts when authorised to take evidence. |
| AIR 1976 Andhra Pradesh 270; 1977 Cr. L. J. 1362 | Rent Controller held to be a court for purposes of evidence-taking. | Referred to as precedents where administrative authorities were treated as courts because they could take evidence. |
| AIR 1967 All. L.J. 5 | Election Tribunals held to be courts. | Referenced as another example of authorities treated as courts when evidence is taken and decisions are binding. |
| 71 Bombay Law Reporter 732 | Coroners before whom evidence can be adduced held to be courts. | Used to illustrate authorities constituted to take evidence being treated as courts under Evidence Act definition. |
| Brijnandan Sinha v. Jyoti Narain | Authority on when a tribunal/authority should be considered a court (binding nature of decision). | Cited for the principle that an authority whose decision is final and binding between the parties may be regarded as a court. |
| Vindar Kumar Satya v. State of Punjab | Distinction between a court and quasi-judicial tribunal. | Referred to in discussing the tests for when an authority is to be treated as a court. |
| Sitamathi Central Co-operative Bank Ltd. v. Jugal Kishore Sinha (Division Bench) | Tests to determine whether an authority exercising judicial/quasi-judicial power is a court (dispute nature, judicial procedure, binding decision). | Adopted as setting out tests to decide whether an authority is a "court"; cited approvingly and applied to consolidation authorities. |
| Thakur Jugal Kishore Sinha v. Sitamarhi Central Coop. Bank Ltd. (Supreme Court affirming) | Affirmation of tests for determining whether an authority is a court. | Cited as Supreme Court affirmation of the tests applied in Sitamathi decision. |
| Chandra Kishore Jha v. State of Bihar, 1975 BBCJ 656 | Compensation Officer under Bihar Land Reforms Act held to be a court. | Used to show precedents where land-related statutory officers were treated as courts due to judicial functions and binding orders. |
| S.K. Sarkar v. Vinoy Chandra Misra (Board of Revenue) | Board of Revenue held to be a court subordinate to High Court for contempt purposes. | Referenced to illustrate statutory authorities being treated as courts for particular statutory purposes. |
| Bharat Bank Employees' Union Delhi v. Union of India, A.I.R. 1985 (SC) 188 | Not all bodies with trappings of courts are courts in the technical sense (example: Labour Court). | Cited as a cautionary authority recognising that the presence of adjudicatory features alone may not suffice to make a body a "court" in technical sense. |
| Sakuru v. Tanaji | Statutory authorities not coming within definition of "courts" for the Limitation Act, Section 5 (as cited). | Referred to as an instance where statutory authorities were held not to fall within a particular definition of "court" under a statute. |
| Dr. Hemchandra Jha v. Smt. Anjana Lal, 1987 P.L.J.R. 82 | Principle that judgment "according to law" requires conformity with applicable rules and procedure (Lord Devlin quote). | Quoted to support the proposition that violation of mandatory procedure which results in miscarriage of justice renders an order not "according to law". |
| Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri & Ors. | Cited in context of procedural law and conformity with rules. | Referenced among authorities illustrating the necessity of following procedural rules. |
| Ranjit Thakur v. Union of India, 1987 PLJR S.C. 79; Vitarelli v. Seaton, 359 U.S. 535 | Procedural observance requirement: if dismissal/decision is based on a defined procedure, that procedure must be scrupulously observed. | Quoted to underline the principle that where a defined procedure exists, it must be followed scrupulously and failure to do so invalidates the decision. |
Court's Reasoning and Analysis
The court analysed statutory provisions of the Bihar Consolidation Act and its Rules alongside the definition of "Court" in Section 3 of the Indian Evidence Act and relevant authorities.
Step-by-step analysis as set out in the opinion:
- Statutory framework: The court reviewed Section 3 (notification), Section 4 (effects of notification including abatement of suits under Section 4(c)), Section 5 (prohibition of transfers after publication until preparation of registers), Section 6 (procedure for sanctioning transfers/partitions), Section 10 (publication of registers and objections procedure), Section 15 (certificates of title), Section 37 (bar of civil court jurisdiction), Section 37-A (deeming consolidation authorities to be courts), and Section 37-B (vesting of civil-court-like powers). The Rules (notably rule 6D(9)-(11)) require authorities to hear parties, frame issues, take oral and documentary evidence, make local inspection and prepare inspection memos.
- Legal-fiction analysis: By reason of Section 37-A the statute creates a legal fiction that the consolidation authorities are courts. The court relied on East End Dwellings and subsequent cases to explain that when a statute deems an authority to be a court, the corollaries of that fiction (including application of rules governing courts) follow.
- Evidence Act applicability: The Evidence Act's definition of "Court" includes persons legally authorised to take evidence. Because (i) the consolidation authorities are deemed courts by statute, (ii) Section 37-B confers powers akin to civil courts (examining witnesses, compelling production of documents, punishing contempt), and (iii) rules like 6D(9)(b) require the Consolidation Officer to take oral and documentary evidence, the court concluded that consolidation authorities are "courts" within the meaning of the Indian Evidence Act and therefore are bound to follow its provisions strictly when taking evidence.
- Application to facts: The court examined the impugned orders (Annexures-2, 3 and 4) and found they were passed without giving parties an opportunity to adduce oral evidence and without legally bringing documents on the record. The Consolidation Officer appeared to rely largely on local inspection and some documents; the appellate authority proceeded on record entries and held the deed of gift valid. The revisional authority noted lack of evidence on key factual matters (e.g., date of death of Ram Sohawan Pathak, status of Bigna Kuer).
- Conclusion on procedure and result: Because the authorities failed to comply with statutory procedural requirements and did not apply the Indian Evidence Act (i.e., did not take evidence or admit documents according to law), their decisions were made in breach of mandatory procedure and were perverse—orders passed on no evidence. The court relied on authorities emphasising strict observance of prescribed procedures and the hallmark of judgment according to law being conformity with applicable rules.
Holding and Implications
Holding: The writ petition was allowed. The impugned orders contained in Annexures-2, 3 and 4 were quashed and a writ of certiorari was issued. There was no order as to costs.
Implications:
- Direct effect: The specific orders of the consolidation authorities (Annexures-2, 3 and 4) were quashed and the petitioner obtained relief by writ. No costs were awarded.
- Procedural and legal consequence established in this judgment: consolidation authorities under the Bihar Consolidation Act are to be treated as "courts" within the meaning of the Indian Evidence Act (by reason of Section 37-A and by virtue of Section 37-B and the Rules), and therefore must follow the provisions of the Indian Evidence Act and statutory rules (including rule 6D) strictly when taking and recording evidence. Orders passed without legally admissible evidence or contrary to mandatory procedural requirements are vulnerable to quashing as perverse and not "according to law."
- The opinion does not explicitly state that it is laying down a novel precedent beyond applying established principles; it applies statutory provisions and existing case law to the facts and reaches the quoted remedial result.
This summary is compiled strictly from the content of the provided opinion and does not add or infer information beyond what appears in the text.
JUDGMENT S.B. Sinha, J.
1. As common questions of fact and law arise for consideration in these writ applications, they were heard together and are being disposed of by this common judgment.
2. These writ applications involve a question as to whether the provisions of the Evidence Act apply in relation to a proceeding initiated under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to for the sake of brevity as 'the Act')?
3. For the purpose of deciding the question involved in these writ applications it is not necessary to state the facts in details. However, for a better appreciation of the point involved, the facts of the case as stated in the writ petition in C.W.J.C. No. 3226 of 1987 may be taken into consideration. It is admitted that the petitioner and respondent no. 4 are descendants of their common ancestors. The genealogy of the family is as follows :
Gopal Pathak |
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According to the petitioner, he belongs to the branch of Ram Narain Pathak whereas respondent no. 4 belongs to the branch of Jai Mangal Pathak. After the death of their fathers, the petitioner and respondent no. 4 have been coming in cultivating possession of the lands in question having half share each, although they have been living separately. According to the petitioner, although no deed of partition was executed, there had been a partition by means of khangi batwara in respect of the properties in question as a result whereof the petitioner and the respondent no. 4 had been cultivating the land allotted to their respective shares to the extent of half and half. The petitioner has asserted that, during the course of Revisional Survey operation, by mistake, the name of Mst. Bigna Kuer, who was merely a maintenance holder, was also recorded in the khtian in respect of the lands of two villages Tendu and Kurari along wife the name of the petitioner and the respondent no. 4. According to the petitioner, however, no such entry was made relating to the lands situated in village Dhaw Pokhar. The petitioner has asserted that, in the year 1972 itself, a notification under Section 3 of the said Act was published in the Anchal covering the villages in question. The petitioner has further alleged that the respondent no. 4 with a motive to grab the property which was in the share of the petitioner obtained a fraudulent and illegal deed of gift executed by Mt. Bigna Kuer in his favour on the 30th June, 1973, when the Revisional Survey operation was at its final stage. The petitioner has challenged the aforementioned deed of gift executed by Mt. Bigna Kuer on the 30th June, 1973, inter alia on the ground that the said deed was obtained by practising a fraud upon her and also on the ground that the same was void as it was executed after the issuance of the notification under Section 3 of the Act without the permission from the competent authority and, as such, the same was void. According to the petitioner, even the lands in question which are the subject matter of the aforementioned purported deed of gift have net been mutated in the name of the respondent no. 4;
4. As there was an apprehension of breach of peace relating to a portion of the land a proceeding under Section 154 of the Code of Criminal Procedure was initiated and by an order dated the 3rd January, 1978, the aforementioned proceeding was disposed of by the Sub-divisional Magistrate in favour of the petitioner. Thereafter, the respondent no. 4 filed a suit bearing Title Suit No. 107 of 1975 in the court of the Subordinate Judge, Sasaram, Rohtas, alleging partition of his two third share of the property on the basis of the aforementioned deed of gift alleged to have been executed by Mt. Bigna Kuer in his favour. According to the petitioner, in terms of Section 3 (c) of the Act, the aforesaid Title Suit no. 107 of 1975 stood abated. The petitioner has further asserted that, on the intervention of some common well wishers a registered deed of Taksimnama was executed on the 7th April, 1978, incorporating the terms of the oral and khangi batwara on the basis whereof the petitioner and the respondent no. 4 had been possessing their lands separatedly. In the said deed of Taskitnnama dated 7-4-1978 the petitioner was the first party (farik no. 1) and respondent no. 4 was the second party (farik no. 2). The petitioner has further asserted that, however, much after the expiry of the . period of limitation as contemplated under Section 10 (2) of the Act the respondent no. 4 filed an application before respondent no. 3 for opening of a khata of one-third share of Mt. Bigna Kuer in his favour with regard to the lands which were the subject matter of the aforementioned deed of gift, details whereof are as follows : -
The respondent no. 3, after allegedly holding a local inspection and in presence of the members of the Village Advisory Committee in terms of Section 10 (7) of the Act rejected the claim of the respondent no. 4. In the said order it was held that the petitioner was in actual possession of the land of his ancestors to the extent of half. A copy of the said order dated the 7th January, 1917, is contained in Annexure-2 to the writ application.
4. The respondent No. 4 thereafter preferred an appeal being Appeal No. 1295 of 1983-84 and other appeals before the respondent no 2 who by his order dated the 8th February, 1985, allowed the said appeal, allegedly, without considering the document filed on behalf of the petitioner. A copy of the said order dated the 8th February 1985, is Annexure-3 to the writ application. .
6. Thereafter the petitioner preferred a revision application before the respondent No. 1 which was registered as Revision Case No. 656 of 1985 which was dismissed by an order dated the 14th May 1987 A copy of the said order dated the 14th May, 1987, is Annexure-4 to the writ application.
7. The petitioner has alleged that after the hearing of the aforementioned case before the revisional authority (the respondent no. 1) was over, his counsel filed an application praying for time to file written arguments and other documents till the 15th May, 1987, which was allowed and written argument was filed on the 4th May, 1987. A receipt showing the documents filed by the petitioner is contained in Annexure-6 to the writ application, from a perusal whereof, it appears that the petitioner filed the aforementioned deed of taksimnama. A certified copy of the order passed by the Sub-divisional Magistrate under Section 144 of the Code of Criminal Procedure, a certified copy of the deed of gift dated the 3rd June, 1973, a certified copy of the order in Title Suit. No. 107 of 1985 which stood dismissed on the 5th August, 1970, a certified copy of the Consolidation Officer in case No. 46 of 1980 and rent receipts granted by the State of Bihar in his favour.
8. From a perusal of the order as contained in Annexure-4 to the writ application it will be evident that the respondent no. } did not believe the case of partition and further held that, as in the year 1973, consolidation proceedings were not initated, the deed of gift was a valid one. In para 4 of the said order, the respondent no. 1 observed that the petitioner had not adduced any evidence for the purpose of showing as to when Ram Sohawan Pathak died and under what circumstances the aforementioned Bigna Kuer became entitled to a right of maintenance only.
9. From a perusal of the impugned orders as contained in Annexures-2, 3 and 4 to the writ application, it is evident that neither the documents were proved nor the parties adduced oral evidence. The order of the Consolidation Officer (respondent no. 3) appears to be based on his local inspection and a perusal of some documents. From the order dated the 9th February, 1985, passed by the respondent no. 2 and as contained in Annexure-3 to the writ application, it appears that the appellate authority proceeding on the basis that the name of Mt. Bigna Kuer was entered in respect of two villages in the record of rights. The appellate authority has further on that basis held that the deed of gift executed by the aforementioned Mt. Bigna Kuer appears to be valid and further purported to have held that as the appellant (respondent no. 4) was not agreeable to posess the land in accordance with the partition, the purported deed of partition lost all its importance. He further held that the partition deed has also been executed without the permission of the Consolidation Officer.
10. From the facts aforementioned, it would be evident that various complicated questions of law and fact arose for consideration before the authorities in question. In terms of the scheme of the Act, the authorities are entitled to determine the said issues of fact and law. However, in my opinion, the following questions arose for consideration before the respondent no. 1, the respondent no. 2 and the respondent no. 3, determination whereof was dependent upon the evidence brought on the record before them. The said issues are :-
(a) Whether the aforementioned Bigna Kuer was entitled to a right of maintenance only or became an absolute owner in terms of Section 14(2) of the Hindu Succession Act, 1956 ?
(b) Whether the entry of the name of Mt Bigna Kuer in the record of rights was correct ?
(c) Whether there had been an actual partition by and between the petitioner and respondent no, 4 ? And if so, whether the respondent no. 4 was bound thereby ?
Admittedly, the impugned orders have been passed without giving any opportunity to the parties to adduce evidence, and without bringing the documents legally on the record. The said Act was enacted to provide for the consolidation of holding and prevention of fragmentation.
In the case of Bettiah Estate… v. Pushpa Devi & Others….. 1986 P.L.J.R. 222 the purpose and this scheme of the Act vis-a-vis Section 4 (c) thereof has been noted.
11. Section 2 of the said Act contains the definition of various words used in the said Act. Section 3 of the Act provides for power of the State Government to declare its intention to make a scheme for consolidation in the area by issuing a notification in the official gazettee with the object of effecting consolidation of holding for the purpose of better cultivation lands in any area. Section 4 of the said Act provides for the effect of the notification under Section 2 (1) of the Act.
Section 4 of the Act reads as follows :-
4 Upon the publication of the notification under Sub-section (1) of Section 3 in the official gazette the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified in the notification till the close of the consolidation operation, ensue in the area to which the notification relates, namely-
(a) the district or part thereof, as the case may be, shall be deemed to be under consolidation operations and duty of preparing and maintaining the record of rights and the village map of each village shall be performed by the Directors of Consolidation, shall prepare or maintain them, as the case may be, in the manner prescribed ;
(b) no suit or other legal proceeding in respect of any land in such areas shall be entertained in 'any court, and in calculating period of limitation applicable to such suits and proceedings such period shall not be counted.
Provided that nothing in this clause shall apply to any proceeding under Section 48 (E) of the Tenancy Act, 1985 (Act 8, 1985) and to the proceedings relating to recording the titles of Bataidars ;
(c) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceeding can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated :
Provided that if the State Government empowers any other officer appointed under this Act to dispose of any proceeding relating to survey settlement operations under the provisions of Chapter X of the Bihar Tenancy Act 1885 (Bihar Act VII of 1885), or chapter 12 of the Chotanagpur Tenancy Act, 1908 (Bengal Act 6, 1908) or Santhal Pargans Settlement Manual, 1872, (Manual 3, 1872) and transfer such proceeding to such officer for disposal, then the proceeding shall not abate or shall not be considered to have been abated ;
Provided also that no such order shall be passed without giving to the parties notice by post or in any other manner that may be convenient and after giving them an opportunity of being heard :
Provided further that such abatement shall be without prejudice of the rights of the persons affected to agitate the right of interest in the said suits or proceeding before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder :
Provided that the State Government may, by notification in the Official gazette exempt any such proceeding, suit, appeal, reference or revision or is any class of them, if in its opinion their abatement is not in public interest, and is not necessary for the purpose of this Act ;
Provided further that nothing in this section shall apply to any proceedings under sections 144 to 148 of Chapter X of the Code of Criminal Procedure, 1973 (Act 2 of 1974) the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 (Bihar Act 28 of 1973) Section 48E of the Bihar Tenancy Act, 1885 (Act VIII of 1885) and the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Act XII of 1962).
12. By reason of Section 4 (c) of the aforementioned any suit or other proceeding abates. The effect of Section 4 (c) is very far reaching and wide in nature. Section 5 of the said Act prohibit transfer or any land after the date of publication of preparation of register of lands and statement of principles under Sub-section (1) of Section 10 in the notified area by way of sale, gift, exchange or partition without the previous sanction of the Consolidation Officer. Section 6 of the Act provides for procedure for sanction which reads as follows :
6(1) A person intending to transfer or partition any land shall make an application for sanction under Section 6 in the prescribed form and containing the prescribed particulars together with notices of the intended transfer or partition in the prescribed form and the process fee prescribed for the service therefor on the parties named in the application as well as for affixing copies therefor on the land, in the office of the Consolidation Officer and in such other place as may be prescribed :
(2) The Consolidation Officer shall fix a date for hearing and cause the notices specifying the date so fixed to be served on the parties named in the petition by registered post to in such other manner as may be prescribed and also cause copies of the notice to be affixed on the land and other placed referred to in Sub-section (1):
(3) On the date fixed for hearing or on any adjourned date the Consolidation Officer shall, after hearing the parties and after such enquiry as may be necessary, pass such orders as he think fit :
Provided that the Consolidation Officer shall not refuse sanction for transfer or partition of any land, except on any one or more of the following grounds, namely-
(a) the prescribed particulars have not been furnished :
(b) the transfer or partition is likely to interfere with the consolidation proceedings or to create a fragment; and
(c) the transfer or partition will be against any provision of the tenancy law for the time being in force the notified area;
Provided further that sanction shall not be granted for the transfer of any land to any person, if after such transfer the total area of land held by him will exceed the maximum area that may be held by such person under any law for the time being in force in the notified area.
(4) Any person aggrieved by an order of the Consolidation Officer under Sub-section (3) may within thirty days of such order, prefer an appeal to the Assistant Director of Consolidation and such appeal shall be heard and disposed of in the prescribed manner and the decision of the Assistant Director of Consolidation, therein, shall be final.
13. Section 7 provides for Village Advisory Committee and Section 8 provides for preparation of up-to-date record-of-rights before consolidation. Section 9 provides for preparation of register of lands. Section 10 of the Act is important which reads as follows :-
10 (1) The Registers prepared under Sub-section (2) of Section 9 and the statement of principles prepared under Section 9A shall be published in the manner prescribed and shall remain published for not less than 30 days.
(2) Any person may, within 45 days of the date of the publication of the register under Sub-section (1) file before the Assistant Consolidation officer objection in respect thereof, disputing the correctness and nature of entries in the records or in the statement of principles.
(3) The Assistant Consolidation Officer shall, after hearing the persons interested and after such enquiries as may be necessary, decide the objection, settle the disputes or correct the mistake, as far as may be, by way of compromise between the parties appearing before him and pass orders on the basis of such compromise.
(4) All cases which are not disposed of by the Assistant Consolidation Officer under Sub-section (3), all cases relating to valuation of plots and all cases relating to valuation of structures, tree, bamboo-clumps, well or other improvement for calculating the amount thereof, and its apportionment amongst co-owners, if there be more owners than one, snail be forwarded by the Assistant Consolidation Officer to the Consolidation Officer who shall dispose of the same in the manner prescribed.
(5) Where objections have been filed against the statement of principles under Sub-section (2) of Section 10 the Assistant Consolidation Officer, after affording opportunity of being heard to the parties concerned and after taking into consideration the view of the Village Advisory Committee, shall submit his report to the Consolidation Officer who shall dispose of the objections in the manner prescribed.
(6) Any person aggrieved by an order of the Assistant Consolidation Officer or Consolidation Officer under sub-sections (3), (4) or (5) may, within 30 days of such order, file an appeal before the Assistant Director of Consolidation, whose decision, except as otherwise provided by or under this Act shall be final.
(7) The Consolidation Officer shall and the Assistant Director of Consolidation may, where necessary, before deciding an objection or an appeal, make local inspection of the unit, after giving due notice to the parties concerned and the Village Advisory Committee.
14. Procedure have been laid down as to how the draft scheme shall be prepared, published and revised : objections to be disposed of, revised draft scheme to be prepared and publication of statement of the scheme before the Director,, Consolidation, and other matters. In terms of Section 15 of the Act, the Consolidation Officer has been empowered to grant to every raiyat to whom a holding has been allotted pursuant to the scheme of consolidation a certificate in the prescribed form containing prescribed particulars. Section 15 of the Act reads as follows :-
15 (1) The Consolidation Officer shall grant to every raiyat to whom a holding has been allotted in pursuance of a scheme of consolidation a certificate in the prescribed form containing the prescribed particulars. Such certificate shall be conclusive proof of the title of such raiyat to such holding and he shall be liable for payment of such rent as may be specified in the certificate.
(2) A similar certificate of transfer shall be granted to every under-raiyat, whether having a right of occupancy or not in any land allotted to him in pursuance of the scheme and the certificate shall be conclusive proof of the title of such under raiyat to such land and he shall be liable to payment of such rent and to such person as may be specified in the certificate.
Section 34 provides for delegation of power. Section 35 empowers the Director of Consolidation to call for and examine records of any case or proceeding taken by an authority inferior to him. Section 37 of the Act expressly bars the jurisdiction of the Civil Courts, which runs as follows:-
37. No Civil Court shall entertain any suit or application to vary or set aside any decision or Order given or passed under this Act with respect to any other matter for which a proceeding could or ought to have been taken under this Act.
In terms of Section 37-A of the Act, the authorities under the Act shall be deemed to be courts. Section 37-A of the Act reads as follows: -
37-A. Notwithstanding anything to the contrary contained in any other law for the time being in force, the Director of Consolidation, the Deputy Director of Consolidation, the Assistant Director of Consolidation, the Consolidation Officer and the Assistant Consolidation Officer shall be deemed to be courts of competent jurisdiction while hearing objections or appeals or deciding disputes under this Act.
In terms of Section 37-B of the Act, the authorities shall have the powers and privileges vested in the Civil Courts in certain matters. Section 37-B of the Act reads as follows :-
37-B(1). The Director of Consolidation, the Deputy Director of Consolidation, the Assistant Director of Consolidation, the Consolidation Officer and the Assistant Consolidation Officer shall have all such powers, rights and privileges while hearing any matter in dispute as are vested in a civil court in respect of the following matters, namely :-
(a) the enforcing of the attendance of witnesses and examining them on oath, affirmation or otherwise and issuing a commission to examine witnesses ;
(b) compelling any person for the production of any document;
(c) punishing the persons guilty of contempt (2) A summon signed by such officer may be substituted for and shall be equivalent to any formal process capable of being issued in any action by a civil court for enforcing the attendance of witnesses and compelling the production of any document.
Section 40 of the said Act empowers the State Government to make rules.
The State of Bihar in exercise of its powers conferred under Section 40 of the Act framed rules known as the Bihar Consolidation of Holding and Prevention of Fragmentation Rules, 1958.
15. For the purpose of disposal of this application, rule 6D (9) (10) and (11) are relevant which are quoted below:-
(9)(a). The cases received from the Assistant consolidation Officer shall be entered in the register in Form XXV in the office of the Consolidation Officer.
(b) On the date fixed under sub-rule (8) or any subsequent date fixed for the purpose the Consolidation Officer shall hear the parties, frame issues on the points in dispute, take evidence both oral and documentary and decide the objections ;
(c) The notice which may become necessary for the Consolidation Office to issue to any person in connection with the" disposal of dispute by him shall be in Form XI-A:
(d) For deciding a dispute regarding valuation of a plot or tree, well or other improvement existing on a plot the Consolidation Officer shall make a local inspection of the plot concerned, prepare an inspection memo and place it on the connected file.
(10) The Amin shall note the orders of the Assistant Consolidation Officer and Consolidation Officer passed under Section 10 in the register of land. The Assistant Consolidation Officer shall check cent percent of the entries to ensure that they have been correctly made.
(11) The Consolidation Officer or the Assistant Director of Consolidation as the case may be, shall when making a local inspection of the unit under Sub-section (7) of Section 10, prepare an inspection memo and place it on the file containing his order.
16. From different provisions of the Act and the Rules as quoted hereinbefore, it is evident that the Act is a self contained Code for the purpose of consolidation of agricultural lands within the State. Section 4 (c) and Section 37 of the said Act indicate the intent and object of the legislature that the provisions of the Act alone would provide the forum for determination of all issues raised before the Consolidation Officers excluding the jurisdiction of all courts concerned. The extent of the jurisdiction of the Consolidation authorities in terms of the provisions of the said Act and consequent exclusion of the jurisdiction of the civil court or abatement of the suits pending before it in terms of Section 4 (c) thereof has been the subject matter of various decisions of this Court and, as such, the same need not be discussed once over again.
Reference in this connection may be made to the cases of Ram Krit Singh and v. State of Bihar and Ors. 1979 (27) B.L.J.R. 585, Bettiah Estate… v. Pushpa Devi & Others….. 1986 P. L J. R. 222, Hari Mohan Thakur and Ors. v. Mahendra Narain Chand and Ors. 1987 P. L. J. R. 88 (F.B.) and Mirza Sulaiman Beg and Ors. v. Harihar Mahto and Ors. 1985 P. L. J. R. 152.
It has been held in the case of Zafar Khan and Ors. v. Board of Revenue that the settlement of land in villages put under consolidation after the notification under Section 3 thereof cannot be questioned by a suit before a civil court or other revenue court. The jurisdiction of the authorities under the Consolidation Act extends to determination of the question of fraud See 1986 P.L.J.R. 10 the validity of the sale deeds etc.
17. In view of the wide power conferred upon the authorities under the Act, as noticed hereinbefore under Section 37A of the Act the Consolidation authorities are deemed to be courts of competent jurisdiction. Thus, the legislature has created legal fiction in favour of the authorities mentioned therein that they would be courts of competent jurisdiction while hearing objections or appeal or deciding the dispute.
18. The question which arises for consideration is as to what is the effect of the legal fiction so created. In East End Dwellings Co. Ltd. v. Finsbury Borough Council 1952 A.C. 109 at 132 Lord Asquith has laid down the effect of such legal fiction in these words ;-
If you are bidden to treat an imaginary state of "affairs as real you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs ; it does not say that having done so, you must cause or permit your imagination to boggie when it comes to the inevitable corollaries of that state of affairs.
The aforementioned decision has been followed by the Supreme Court in the State of Bombay v. Pandurang Vinayaka A.I.R. 1955 S.C. 244 Commissioner of Income-tax v. Teja Singh A.I.R. 1969 S.C. 352 and Additional Income-tax Officer v. E. Alfred .
In Commissioner of Income-tax. Bombay v. Bombay Trust Corporation 1930 P.C. 54 the word 'deemed' was interpreted in the following terms :
When a person is 'deemed to be' something the only meaning possible is that whereas he is not in reality that something, the Act requires him to be treated as if he were.
This decision of the Privy Council was cited with approval in K. Kamaraja Nadar v. Kunju Thevar . The said decision has also been followed by a Division Bench of the Allahabad High Court in Narain Bux Singh v. State of U.P. 1981 A.L.J. 649 and in Tirath Raj v. Director General Police, Lucknow 1986 L.I.C. 275.
20. From the aforementioned decisions, it is evident that by a legal fiction the authorities under the Consolidation Act are deemed to be courts for all purposes including for the purpose of taking evidence in this regard. The aforementioned view is further supported by the fact that in terms of Section 37B of the Act the aforesaid authorities are vested with all powers, rights and privileges while hearing any matter in dispute as are vested in the civil court inter alia in respect of the matters of examining the witnesses on oath and punishing the person guilty of contempt.
21. The very fact that the authorities under the Act are empowered to examine witnesses after administering oath to them clearly shows that they are 'Court' within the meaning of the Evidence Act. It is relevant to refer to the definition of 'Court' under the provisions of the Indian Evidence Act as contained in Section 3 thereof which reads as follows :-
'Court' includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence.
In terms of Sub-section (7) of Section 10 of the said Act, the Consolidation Officer and the Assistant Director of Consolidation have been empowered to make a local inspection of the unit after giving due notice to the parties concerned and the Village Advisory Committee. In terms of Rule 6D(11) of the Act, the Consolidation Officer or the Assistant Consolidation Officer while making such local inspection is to prepare an inspection memo and place it on the file containing his order. This power is akin to the power of a Civil Court contained in Order XVIII, Rule 18 of the Civil Procedure Code.
22. Further, as noticed hereinbefore, in terms of rule 6D(9) (b), the Consolidation Officer is required to hear the parties, frames issues on the point in dispute and take evidence both oral and documentary-and decide the objections thereto. There, therefore, in my opinion, cannot be any doubt whatsoever that the authorities under the Act are also 'courts' within the meaning of the provisions of the Indian Evidence Act.
23. The definition of 'Courts' under the Indian Evidence Act is not exhaustive (See ILR (4) Cal. (15) 483 (FB). Although the said definition is for the purpose of the said Act alone, all authorities must be held to be courts within the meaning of the said provision who are legally authorised to take evidence. The word 'Court' under the said Act has come up for consideration at different times under the different statutes.
The Commissioner who has been authorised to take evidence of the witnesses has been held to be a court (See AIR 1954 Patna 289). The Rent Controller has been held to be a court (See AIR 1976 Andhra Pradesh 270 and 1977 Cr. L. J. 1362). The Election Tribunals have been held to be courts (see AIR 1967 All. L.J. 5 at page 7). Coroners before whom evidence can be adduced have been held to be courts (see 71 Bombay Law Reporter 732.
In Brijnandan Sinha v. Jyoti Narain it has been held that any Tribunal or authority whose decision is final and binding between the parties is a court. In the said decision, the Supreme Court, while deciding a case under Court of Enquiry Act held that a court of enquiry is not a court as its decision is neither final nor binding upon the parties. In Vindar Kumar Satya v. State of Punjab the Supreme Court has made a broad distinction of a court and quasi judicial Tribunal. In the Sitamathi Central Co-operative Bank Ltd. v. Jugal Kishore Sinha a Division Bench of this Court has held Assistant Registrars appointed under the Bihar and Orissa Cooperative Societies Act to be courts. In the said decision, this Court has held that, when a question arises as to whether the authority constituted under a particular Act exercising judicial or quasi judicial power is a court or not, then the following tests must be fulfilled before the said authority can be termed as a court :
(a) the dispute which is to be decided by him must be in the nature of a civil suit :
(b) the procedure for determination of such dispute must be judicial procedure ; and
(c) the decision must be a binding nature.
The aforementioned judgment has been affirmed by the Supreme Court in the case of Thakur Jugal Kishore Sinha v. Sitamarhi Central Coop. Bank Ltd. .
In Chandra Kishore Jha v. State of Bihar 1975 BBCJ 656, a Division Bench of this Court has held the Compension Officer acting under the Bihar Land Reforms Act, 1950, to be a court as the said officer exercises judicial power deciding civil dispute and pass an order which is final and binding between the parties. In S.K. Sarkar, Member, Board of Revenue, U. P., Lucknow v. Vinoy Chandra Misra the Board of Revenue has been held to be a court subordinate to the High Court for the purpose of the provisions of the Contempt ,of Court Act.
24. However, in the Bharat Bank Employees' Union Delhi v. Union of India A.I.R. 1985 (SC) 188 it has been held that a 'Labour Court' although has all the trappings of the Court but still is not a court in technical sense In Sakuru v. Tanaji the Supreme Court has held that the statutory authorities did not come within the purview of the definition of courts of the purpose of Section 5 of the Limitation Act. However, as noticed hereinbefore, so far as the authorities under the Act are concerned, not only they are to be taken as courts by reason of legal fiction created under Section 37A of the Act but also because they undoubtedly have been discharging judicial functions in judicial manner and their decisions are final and binding on the parties. In Ram Krit Singh and Ors. v. State of Bihar and Ors. 1979 (27) B.L.J.R. 585 a Special Bench of this Court has held that after a suit is revived upon issuance of a notification under Section 26A of the Act, the Civil Courts are merely to pronounce judgments in accordance with the decisions of the consolidation authorities. As seen hereinbefore the scope and ambit of the power of the authorities under the Act are absolutely wide and by reason of the provisions contained therein, the nature of their functioning is judicial function. Not only the authorities are entitled to decide a case relating to title but are also entitled to determine serious disputes relating to fraudulent execution of documents and other complicated disputes of civil nature.
25. In terms of Section 37 of the Act, the jurisdiction of the civil courts in such matters are completely ousted. Under Section 15 of the Act, a certificate of transfer granted to every raiyat under the prescribed form would be a conclusive proof of the title of the said raiyat. As and when such certificate of transfer is granted the same cannot, thus, be challenged before any authority or court whatsoever. Such certificates will, therefore, have the force of a decree passed in a suit and would be binding on all other courts, namely, Criminal Courts, Revenue Courts, etc. Such decisions are also binding on civil courts.
26. Taking, therefore, into consideration all the aspects of the matter from all its ramifications, I am of the view that the authorities under the Act are courts within the meaning of the Indian Evidence Act and, as such, before determining the issues involved in the case before them, they are bound to follow the provisions of the Indian Evidence Act strictly.
27. From a perusal of the facts as mentioned hereinbefore, it is evident that the concerned respondents, have not at all taken into considerations the Indian Evidence Act. They have also not examined any witness for determining the issues in question nor the documents relied upon by them were legally brought on the record. There cannot, therefore, be any doubt that, in passing the impugned orders the concerned respondents have committed infirmities in following the procedures required under the Act and the Rules. The said authorities, therefore, have misdirected themselves in law as their decisions are not in accordance with law.
28. In Dr. Hemchandra Jha v. Smt. Anjana Lal 1987 P.L.J.R. 82, this Court has observed as follows :-
7. What is meant "according to law". 'Judgment according to law is not invariably the same thing as judgment according to the merit of the particular case from which the judgment flows. The hall mark of judgment according to law is conformity with a set of rules", Lord Devlin, Lord of Appeal in the book" "The Judge". And what is meant by "a set of rules" This means rules designed so as to advance justice in a normal case. What are the rules applicable to the present case. As in this case we are concerned with a suit for eviction from a building filed by a landlord against the tenant besides others the rules which shall apply are Code of Civil Procedure, Evidence Act and the Rent Act. If, therefore, there has been violation of any of the provisions of the procedure law which has resulted in miscarriage of justice or of any mandatory provision of the Rent Act or if the finding is perverse, i.e., not supported by evidence, it must be held that the order impugned is not "according to law.
Reference in this connection may also be made to the case of Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri and Ors. .
In Ranjit Thakur v. Union of India 1987 PLJR S. C. 79, quoted with approval the words of Frankfurter, in Vitarelli v. Seaton 359 U S 535 :
If dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.... This judicially evolved rule of administrative law is now firmly established, and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword.
30. In view of the fact that the authorities have passed the orders without there being any legal evidence on the record, further the impugned orders must be held to be perverse being passed on no evidence.
31. In the result, this writ petition is allowed and the orders as contained in Annexures-2, 3 and 4 are quashed. Let a writ of certiorari be issued accordingly. However, in the circumstances of this case, there shall be no order as to costs.
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