MAHANTH DHARNIDHARA ACHARYA Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this application under Articles 226 and 227 of the Constitution of India the petitioners have challenged the order dated 18.2.1986 passed by the Superintandent of Survey in Buxar Municipal Survey Appeal No. 229 of 1984 including the order dated 29.7.1986 passed by respondent Commissioner by which the orders passed by Assistant Survey Settlement Officer as well as the Charge Officer have been set aside and the land bearing plot no. 1203 situated in ward no. 9 of the Buxar Municipality stands recorded in the name of State of Bihar and possession has been ¢ recorded in favour of Sanskrit Madhyamik Vidyalaya. The plot, in question, including other lands situated within Buxar Municipal area where municipal survey was going on, the petitioners filed an objection in terms of Section 9 of the Municipal Survey Act before the respondent Assistant Superintendent of Survey, which was registered as objection case no. 445 of 1984 for correction of the draf1 entries of the land bearing khata no. 355 plot no. 1203, details whereof have been mentioned in the objection petition itself. In the aforesaid objection case the parties appeared and after hearing the parties respondent Assistant Superintendent of Survey directed the name of the petitioners to be recorded. However, possession of plot no. 1203 (a) and (b) stands recorded in the name of Sanskrit Madhyamik Vidyalaya by order dated 15.6.1984 passed in the aforesaid objection case, copy of the said order is made Annexure -1 to this writ application. Being aggrieved by the said order the private respondent namely, Headmaster of Sanskrit Madhyamik Vidyalaya filed an appeal before the Superintendent of Survey which was registered as appeal no. 227 of 1984. Ultimately the appeal was heard by the Charge Officer, in exercise of the power of Superintendent of Survey, and by order dated 31.1.85 confirmed the order of the Assistant Superintendent of Survey, copy of the said order is made Annexure -2 to this writ application. It may be mentioned here that the petitioners being aggrieved by that portion of the order by which possession over the plot no. 1203 (a) and (b) was recorded in the name of the aforesaid Sanskrit School filed an appeal before the Supreintendent of Survey being appeal no. 229/84. Meanwhile, the private respondent has also filed an appeal against the order of Assistant Superintendent of Survey (Annexure -1), which was registered as appeal no. 227 of 1984. Pursuant to the notice parties appeared and ultimately after hearing the parties the respondent charge officer exercising the power of Superintendent of Survey has confirmed the order of the Assistant Survey Officer by his order dated 30.1.1985. The respondent Superintendent of Survey, however, by the order dated 18.2.86 has set aside the order passed by Assistant Superintendent of Survey as well as charge officer and thereby non -suited the petitioners from the land bearing plot no. 1203 (a) and (b). The petitioners, however, challenged the order of Superintendent of Survey before the respondent Commissioner, who has refused to entertain the prayer of the petitioner due to want of jurisdiction, copy of the said order is made Annexure -6 to this writ application. Hence the petitioners have come to this Court challenging the order of respondent Superintendent of Survey has been challenged mainly on the ground that the orders having been confirmed in appeal by the charge officer, being an appellate authority, the Superintendent of Survey has no jurisdiction either to set aside the order passed by the appellate court and/or to modify the said order.

(2.) IN this case, no counter affidavit has been filed on behalf of the respondents. However, learned counsel appearing on behalf of the respondents has submitted that the appellate authority being Superintendent of Survey while exercising his power of appeal, is fully competent either to set aside the order and/or to modify the same in purported exercise of power under Order 43 Rule 1 C.P.C. It is further submitted on behalf of the respondents that the petitioners have also filed a suit for eviction of the respondents from the premises, in question. However, any order passed by the respondent authority will not, in any way, affect the title of the respective parties. It is well known principle of law that once name of the parties is recorded on the basis of the possession and, as such, it will be open to either of the parties to challenge the title before an appropriate forum and if such a suit is filed in future, the same shall be decided strictly in accordance with law, without being prejudiced by the order either passed by the respondent authority or by this Court in exercise of its writ jurisdiction.

(3.) ADMITTEDLY , the charge officer as well as the Superintendent of Survey having concurrent jurisdiction to hear the appeal and if one appellate authority has passed the order, the same cannot be set aside by other appellate authority having the same jurisdiction. In this case, the order passed by the Assistant Superintendent of Survey has been confirmed by the appellate authority, namely, charge officer. The petitioners filed an appeal being aggrieved by that part of the order by which possession has been recorded in the name of the aforesaid Sanskrit School. The appellate authority, namely, Superintendent of Survey, has no authority in law to set aside the order passed by the charge officer, who has exercised the power of appellate authority. There is no dispute so far the power of the appellate authority is concerned. The appellate authority can set aside the order and/or review the order passed by the subordinate authority but the authority exercising the concurrent jurisdiction has no authority either to review or set aside the order passed by the authority exercising the same power. In this case, admittedly, the order of the Assistant Superintendent of Survey has been confirmed by the appellate authority, namely, charge officer. The Superintendent of Survey has no authority in law either to modify the said order and/or set aside the same.