JAGDISH MANDAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) ON 12th August, 1975 a notice was sent to the raiyat acknowledged in the register of land prepared under Section 9 of the Act. Five years thereafter the appellants filed an objection thereto. An application for condonation of delay in filing the said objection was also filed which was allowed and the delay was condoned. The Assistant Consolidation Officer thereupon considered the objection and allowed the same. An appeal preferred before the Assistant Director of consolidation was dismissed. The revision application filed before the Director of Consolidation also failed. Thereupon the aggrieved party filed a writ petition which was allowed principally on two grounds, namely when the statute did not permit the Assistant Consolidation Officer to condone the delay in preferring the objection, the Assistant Consolidation Officer having no authority to condone could not condone the delay in filing the objection/The next ground as was urged and accepted was that in view of Sec.10A of the Act, while the objection was not entertainable by the Assistant Consolidation Officer and the appeal was also not competent before the Assistant Director of Consolidation, the revision before the Director of Consolidation was also not competent in as much as such a revision is a step in consolidation which is barred by Sec.10A of the Act.

(2.) IT is true that when the statute fixes a time -limit for a thing to be done within such time -limit,it must be done within such time -limit and cannot be done beyond the same. The power to condone delay is a statutory power. Unless Sec. 5 of the Limitation Act by its own force is applicable and unless the statute authorizes user of power to condone the delay, the delay cannot be condoned. It appears to us that the proceeding before the Assistant Consolidation Officer was a proceeding before the Court in terms of Sec.37A of the Act and accordingly Section 5 of the Limitation Act applied. In such view of the matter, the one and the only conclusion would be that the Assistant Consolidation Officer had power to condone the delay in filing the objection and to that extent the Court below was incorrect. Moreover, the obligation to file objection accrues only after the notice as directed by sub -section (1) of Sec.10 of the Act has been published. Sub -section (1) of Sec.10 directs publication of the notice in the manner prescribed with a further direction that the published notice shall remain published for not less than 30 days. The mode prescribed by Rule 6(d) of the Bihar Consolidation of Holdings Rules, 1958 directs that such notice is required to be published for a period of 30 days by beat of drum. There is no assertion in any of the records before us that any such publication had been made and accordingly time to file an objection did not start running at any point of time until before filing of the objection.

(3.) IN those circumstances we are of the view that the order under appeal is not sustainable and we set aside the same.