BIBI KHAIRUN NISA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Miscellaneous Judicial Cases Nos. 705, 706 and 707 of 1961 are disposed of in one judgment. In these petitions under Articles 226 and 227 of the Constitution the order of the Additional Collector of Bhagalpur setting aside the order patted by the Land Reforms Deputy Collector and directing the re-hearing of the matter after giving notice to the parties and taking evidence in their presence is under challenge. During the course of the settlement proceedings in village Bhai Gaon in the district of Bhagalpur a draft record of right was prepared and the Block Development Officer directed that the petitioner's name should be recorded notwithstanding the objection raised by opposite parties Nos. 3 and 4 in respect of the khatas in dispute. On appeal, the Land Reforms Deputy Collector upheld the order of the Block Development Officer. The dispute was then taken up before the Additional Collector and it was registered as a miscellaneous revision. The learned Collector observed that the lower court has not dealt with the documentary evidence produced by the appellant before him (here opposite parties 3 and 4) and hence he remanded the case for re-hearing for taking evidence produced by the parties and for decision according to law.

(2.) Mr. Sahay for the petitioner urged that the order of the Deputy Collector was passed under Section 103A(2) of the Bihar Tenancy Act and as no right of revision has been conferred on the Collector either by the said Act or by the rules made thereunder, the Collector had no jurisdiction to admit the revision petition and remand the case for re-hearing. In support of his contention, he relied on a recent judgment of the Supreme Court reported in State of Bihar v. Ram Dayal, 1962 BLJR 385 where it was held that a revenue officer (settlement officer in that case) had no power to review an order passed by the Assistant Settlement Officer, The question of the revisional jurisdiction of the Settlement Officer was not in issue in that case and hence that decision will not be of help to us. Mr. Sahay then relied on the recent amendment made to Section 103A of the Bihar Tenancy Act by the Bihar Tenancy (Amendment) Act, 1962 by which Sub-sections (3) and (4) were inserted in that section and power of revision against the order of the revenue officer was conferred on superior revenue officers and a provision was also made for an appeal in the prescribed manner. But merely because the legislature stepped in and expressly conferred powers of revision against orders passed under Section 103A of the Bihar Tenancy Act, it does not necessarily follow that as the law stood prior to the date of the amendment, there was no power of revision. For that purpose we have to examine carefully the provisions of the Bihar Tenancy Act, the rules made thereunder by the Government and also the rules and instructions issued by the Board of Revenue under the authority conferred by these rules,

(3.) Sub-section (2) of Section 103A says that when objections are filed after draft publication they shall be "considered and disposed of according to such rules as the State Government may prescribe". In pursuance of this provision and the other provisions of the Act the State Government have made rules, and Rule 1 of the said rules says that in carrying out the provisions of the rules the Revenue Officers shall have regard to the instructions of the Board of Revenue so far as such instructions are consistent with the rules. Rule 2 further says that "except where otherwise provided for by law or by these rules" all proceedings and orders of the Revenue Officers, passed in the discharge of any duty imposed upon them by or under this Act, shall be subject to the supervision and control of the Board of Revenue, and the proceedings and orders of each Revenue Officer under this Act shall be subject to the supervision and control of the Revenue Officers to whom he may be declared by the Board of Revenue to be, for the purposes of this Act, subordinate. It is not challenged that the Land Reforms Duty Collector is a subordinate of the Additional Collector while exercising his functions under the Bihar Tenancy Act. Hence, by virtue of Rule 2, read with Sub-section (2) of Section 103A, the Land Reforms Deputy Collector, while considering and disposing of objections, is subject to the supervision and control of the Additional Collector, "except where otherwise provided for by law or by the rules", My attention has not been drawn to any provision either in the Bihar Tenancy Act or in the rules made thereunder which expressly takes away this right of supervision and control. It is in recognition of this power of supervision and control that in Chapter III of the Bihar Survey and Settlement Manual, 1959, it is mentioned that a Deputy Collector or a Sub-Deputy Collector exercising powers as Assistant Settlement Officer shall be under the general control of the Collector. Again, in the Miscellaneous Rules by the Board of Revenue, Bihar, in 1958, in Rule 3 it is stated as follows: