Kamleshwari v. THE STATE OF BIHAR

Heard learned counsel for the petitioners, learned Assistant counsel to learned Standing counsel no. 17 for respondents no.1 to 5, and learned counsel for respondents no. 6 to 12. This writ petition is directed against the order dated

28.1.2006 (Annexure 6), passed by the Additional Collector, Katihar, in Misc. Case no. 3/2005-06( Arjun Ravi Das vs. Kamleshwari and others), whereby settlements of the lands in question made earlier in favour of the petitioners have been cancelled and have been settled in favour of respondents no. 6 to 12 herein. The two sets of respondents have placed on record respective counter affidavits and have - 2 - supported the impugned order. The petitioners have filed rejoinder to the same. A brief statement of facts essential for the disposal of the writ petition may be indicated. The petitioners claim to be members of the extremely backward community. They claim to be Kaivart. Their caste is mentioned in the documents of settlement marked Annexure 1 series. The petitioners and one Manoj Kumar Mandal (not petitioner herein) had applied for settlement of Government land on the ground that they were landless persons and the members of the extremely backward community. Lands were settled and Parwana was issued under the signature of Anchal Adhikari , Falka, district Katihar, dated 20.8.1984, marked Annexure 1 series. The petitioners claimed to have come in possession about 12 years ago. Thereafter respondents no.6 to 12 herein filed an application before the Additional Collector, Katihar, challenging the said settlement with further prayer to settle the same in their favour. The same was rejected by the order dated 9.7.1997 (Annexure 5), passed by the learned Additional Collector, Katihar, in Case no. 34/1995-96. Respondents no. 6 to 12 thereafter again filed an identical application which has been allowed by the impugned order whereby the settlement in favour of the petitioners has been cancelled on the ground that they are not landless persons. Respondents no.6 to 12 herein are members of Scheduled Caste. While assailing the validity of the impugned order, learned counsel for the petitioners submits that respondents no.6 to 12 have - 3 - challenged the settlement in question after lapse of 12 years, and was repelled by the said order dated 9.7.1997 (Annexure 5). The impugned order has been passed after a lapse of about nine years thereafter and by the same authority which is wholly impermissible in law. He relies on the judgment in the case of Md Usman vs. Madan Mohan Singh and others reported in 1989 PLJR 80 . He also submits that after the settlements were made, lands were mutated in their names and have been entered in the relevant revenue record. Learned counsel for two set of respondents in their separate counter affidavits have supported the impugned order. They submit that the petitioners are not landless persons. Partition of joint family property had taken place in March, 1994. So much of land has been settled in favour of the father and son. They further submit that the order of settlement as well as earlier order dated 9.7.1997 (Annexure 5), are bad in law. Even supposing for the sake of argument that the learned Additional Collector has no jurisdiction to pass the impugned order, the matter can be decided by this court on merits and may be upheld by this court. They rely on the following reported judgments: (1) (1988) I Supreme Court cases 40 (Mohammad Swalleh and others vs Third Addl. District Judge, Meerut and another) (ii) 2002 (I) PLJR 650 (Sri Prakash Singh & another vs. State of Bihar & ors). They lastly submit that respondents no.6 to 12 are members of Schedule caste, whereas the petitioners are members of extremely backward community. Land can be settled only in favour of landless persons, and members of Scheduled castes and - 4 - Scheduled Tribes have to be given preference. We have perused the materials on record and considered the submissions of the learned counsel for the parties. It appears to me on a perusal of the materials on record that the petitioners were not, before the impugned settlement took place, landless persons. In fact, they had sufficient lands and were partitioned by document dated

18.3.1994 (Annexure A). Learned counsel for the respondents are right in their submission that lands can be settled only in favour of landless persons. Furthermore, respondents no. 6 to 12 are members of the Scheduled castes, whereas the petitioners are members of the backward community. In view of the policy decision of the State Government governing the issue, members of the Scheduled castes and Scheduled tribes have to be given preference. In that view of the matter, the impugned order has reached the correct conclusion . I must deal with the contention raised by learned counsel for the petitioners that respondents no.6 to 12 had challenged the impugned settlement after lapse of 12 years and were repelled by order dated 9.7.1997, passed by the learned Additional Collector who could not have set aside his own order dated 28.1.2006. It appears to me that an appeal lies before the superior authority whereas a review application lies before the same authority. The appeal is of the widest sweep, whereas review jurisdiction has very limited scope of interference and can be exercised only if conferred by the statute in specific terms or by necessary implication. No such power of review has been brought to my notice. - 5 - This, however, does not conclude the matter. Learned counsel for respondents no. 6 to 12 has rightly relied on the judgment of the Supreme court in Mohammad Swalleh (Supra), where proceedings had taken place under the U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972. The learned first authority passed order on merits. The aggrieved party preferred appeal before the learned District Judge which was disposed of on merits. The aggrieved party moved the High court and raised the contention that there was no provision for appeal under the Act, and the learned District Judge had no authority at all under the Act. The High court agreed with this part of the submission, but it examined the matter on merits and held that the learned District Judge had passed correct order on merits. The High court, therefore, adopted as same on its own order in exercise of discretionary prerogative writ jurisdiction, and in the interest of justice. The Supreme court on appeal upheld the principle of law evolved by the High court. The principle applies on all fours to the facts and circumstances of the present case. I had also the occasion to apply the same in my judgment in the case of Sri Prakash Singh (Supra). I am convinced that the impugned order dated

28.1.2006 is correct on merits and this court adopts the same as its own order. I, therefore, find no merit in this writ petition. It is accordingly dismissed. shahid (S.K.Katriar, J)