BRIJ BIHARI PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners in their application under Articles 226 and 227 of the Constitution of India seeks quashing of the order dated 4-3-1992 (Annexure-3) passed by the Joint Director, Consolidation, (respondent No. 3) in revision case No. 20 / 92 giving direction to the Circle Officer, Nawanhgar, (respondent No. 5) for incorporating six decimals of land bearing plot No. 267 in the name of Devidayal Pandey (respondent No. 6) on the ground the order was perverse, illegal and without jurisdiction.

(2.) The petitioners' case is that plot No. 267 having an area of six decimal of Khata No. 93 in village Nokhpur in Buxar district stood accorded in the revisional survey Khatian as "Rasta-Gali" the name of "Anabad Bihar Sarkar". Plot Nos. 265 and 266 being to the petitioners and are adjacent to plot No. 267. The petitioners claim to be using the aforesaid six decimals of land as their Rasta since long. The said Rasta, it is alleged, was illegally and mischievously closed by respondent No. 6 causing hardship to the petitioners and inconvenience to the general public. The petitioners filed an application before respondent No. 5 whereupon an encroachment proceeding case No. I of 1993-94 was started and reports were caller for from the Karmachari and the Circle Inspector of the area concerned. The Karmachari and the Circle Inspector filed their reports dated 13-3-1994 and 17-3-1994 respectively supporting the assertion made by the petitioners. In spite of all this respondent No. 5 passed the order dated 10-6-1994 copy of which is Annexure-5 dismissing the encroachment case with the observation that the petitioners may move a court of competent jurisdiction for ventilating their rights. The said order Annexure-5 was passed on account of the fact that the predecessor in office had passed an order dated 28-8-1992 (Annexure 4) in connection with a mutation case No. 160 / 92-93 in view of the order dated 4-3-1992 (Annexure 3) passed by the respondent No. 3 in revision case No. 20 of 1992. The petitioners thereafter obtained certified copy of the order dated 4-3-1992 (Annexure 3) and filed revision case No. 505/94 under Section 35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act (hereinafter referred to as the "Act"). The revision was dismissed by the Director of Consolidation, Bihar, (respondent No. 2) by his order dated 9-9-1994 (Annexure 6) as not maintainable with the observation that the petitioners may seek other legal remedy. Such an order was passed on the ground that the Director of Consolidation had no power to review the order passed by the Joint Director, Consolidation, under Section 35 of the Act.

(3.) The petitioners have described the impugned order Annexure 3 as wholly mala fide as the plot No. 267 commonly in use is Gali and provided in the survey Khatian under the name of "Bihar Sarkar Anabad" could not have been the subject matter of compromise between the parties and none of the parties including respondent No. 6 could have got the said plot incorporated in their own schedule. The compromise could not have been recorded also on account of nonfulfilment of the ingredients contained in the provisions of the Order 23, Rule 3 of the Code of Civil Procedure. The petitioners then moved the Hon'ble Court for setting aside the impugned order by filing C-W-J- C. No. 8847 / 94. The writ application was dismissed for non-prosecution by order dated 16-2-1995 passed by a Bench of this Court. An application for restoration of the writ filed vide MJC No. 324 / 95 was also dismissed in limine on 29-3-1995 on account of delay in the appearance of the petitioners' counsel. The petitioners then filed second restoration application bearing MJC No. 496/95 which too was dismissed by order dated 27-6-1995, a photo copy of which is Annexure 7 with the observation than "the petitioner if so advised may file a fresh writ application, if permissible in law. "