UPENDRA CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner, by the present application under Articles 226 and 227 of the Constitution of India has challenged the order passed by the Board of Revenue (respondent No. 4) contained in Annexure 9 to the writ application.

(2.) Plots Nos. 4343 and 4344 of village Kailakh in Madhubani district belong to the petitioner and plots Nos. 4345 and 3604 to the respondent No. 5. There has been a demarcating ridge between the two blocks of land. A dispute was raised by respondent No. 5 and a proceeding under Section 144 of the Code of Criminal Procedure was drawn up but was later dropped. Another Criminal Proceeding started by respondent No. 5 also failed. He thereafter filed an application under the provisions of the Bengal Survey Act before the Demarcation Deputy Collector, respondent No. 2. The petitioner objected but an order was passed against the petitioner on the 13th of January, 1969. The petitioner filed fresh objections and wanted respondent No. 2 to review his previous order. This prayer was rejected by an order as contained in Annexure '4' to the writ application. A direction to respondent No. 5 was given to deposit the cost of demarcation. The petitioner thereafter made a prayer for appointment of an advocate-commissioner to inspect the field and submit a report. The prayer was allowed and the advocate-commissioner, appointed in the case submitted a report which is Annexure '5' to the writ application. After considering the matter afresh the Court reiterated the earlier order by Annexure '6' and redirected respondent No. 5 to deposit the cost. The petitioner thereafter appealed before the Collector which was dismissed by an order contained in Annexure '7'. The petitioner, then, filed a revision application before the Commissioner which was allowed and the application of respondent No. 5 before the Demarcation Deputy Collector was dismissed. Respondent No. 5 then moved the Board of Revenue by an application which was allowed by the Additional Member, Board of Revenue by an order as contained in Annexure '9'. The petitioner has challenged this order in the present case.

(3.) The learned counsel for the petitioner has contended that the provisions of Part V of the Bengal Survey Act dealing with the boundary disputes refer to a stage when such dispute arises in course of a survey under the Act. As no survey proceeding was going on, the authority concerned had no jurisdiction to entertain the application of respondent No. 5 and to pass the impugned orders. Reliance was placed on the language of Section 40 which reads as follows: