RAM KISHUN MANDAL Vs. STATE

JUDGEMENT

(1.) The three significant issues arising for adjudication by the Full Bench on a reference in this set of two connected civil writ jurisdiction cases may well be succinctly formulated in the terms following :- 1. Whether an appeal against an order under S.103A(1) of the Bihar Tenancy Act, 1885 is still maintainable despite the deletion of Sub-Sec. (4) thereof by the amending Act 7 of 1969 because of the continuance of S.63A(b) and (c) of the Bihar Tenancy Rules ?

(2.) Whether an appeal against an order under S.103A(1) of the Bihar Tenancy Act is equally envisaged by S.104-G of the said Act ?

(3.) Whether the revenue officer specially empowered by the State Government can, under S.103-A(3) of the Bihar Tenancy Act, exercise an inherent power to review his own decision till the final publication of the record of rights ? 2. The matrix of facts necessary for the decision of the aforesaid pristinely legal questions may be noticed with relative brevity from CWJC 170 of 1986 (Ram Kishun Mandal v. The State of Bihar and others). The lis therein arises from a number of khatas concerning various parties. The names of respondents 5 to 12 were recorded in the record of rights during the recent survey operation which led the petitioner to file an objection under S.103-A(1) of the Bihar Tenancy Act, 1885 (hereinafter referred to as the 'Act') before the Assistant Settlement Officer who rejected the same. Aggrieved thereby, the petitioner preferred a survey revision before the Court of the Survey and Settlement Officer, Darbhanga, which was later allowed by a common order dt. 26th June, 1978 in favour of the petitioner with a direction that a khata of concerned lands be prepared as per the claim of the petitioner. The respondents, however, filed ten appeals before the learned Commissioner, Darbhanga Division, against the said order of the Survey and Settlement Officer, dt. 26th June, 1978. Thereon the learned Commissioner held that by virtue of the deletion of Sub-Sec. (4) of S.103-A(1) of the Act by amending Act 7 of 1969 no appeal now lay against the order under S.103-A(1). He also noticed that an anomaly had been created by the continuance of sub-rules (b) and (c) of R.63-A of the Bihar Tenancy Rules (hereinafter called the 'Rules'), and a reference has been made to the Government to delete that portion of the rule. However, despite the non-maintainability of the appeal, he made the following observations :- "In the circumstances no appeal can lie before the present court. However, I feet that as the case is made out by the learned lawyer, some points are worth considering. The Settlement Officer can entertain such petition u/s. 103A(3) of the Bihar Tenancy Act as revision. The party may go to the Settlement Officer in revision accordingly." Armed with the aforesaid observations, respondents 5 to 12 then filed a petition before the Settlement Officer, Darbhanga. On behalf of the petitioner strenuous objection was raised that despite the observation of the learned Commissioner no further review or second revision of an order under S.103 A(1) was maintainable. Vide Annex.-3, the learned Settlement Officer rejected the objection and directed the revision to proceed. 3. The petitioner then preferred the present petition invoking the constitutional jurisdiction of the Court that the Settlement Officer could. not revise his order a second time and there was no power of review granted by the Statute. This petition originally came up before my learned Brother, S. Shamsul Hasan, J. before whom firm reliance was placed on Devendra Pd. Gupta v. State of Bihar, 1978 BLJR 87 and State of Bihar v. Ram Dayal Missir, 1962 BLJR 385 (SC). However, expressing some doubt about the correctness of the view taken therein he referred the matter to a Division Bench which, in turn, has made the present reference to a larger Bench. In the connected case CWJC 1583 of 1981 (Chandra Kant Yadav and others v. Kari Mukhiya and others) identical issues arose and it was consequently directed to be heard along with CWJC 170/86. That is how these matters are before us.