BINDESHWAR BHAGAT v. The State of Bihar & Ors.

of this Court in the case of Sri Prakash Singh vs. State of Bihar [ 2002 (2) BLJR 600]. He also submits that this Court should not pass an order which would result in reviving and perpetuating an illegal order. He relies on the judgment of the Supreme Court in Mohd. Swalleh v. 3rd Addl. District Judge [(1988) 1 SCC 40], as well as the said decision in Sri Prakash Singh (supra).

5. We have perused the materials on record and considered the submissions of learned counsel for the parties. It would be appropriately to dispose of the question relating to jurisdiction of the learned revisional authority first. Section 35 of the Act reads as follows : “35. Revision and reference.- The Director of Consolidation may of his own motion or on the application of any party or on reference being made by any subordinate authority, call for and examine the record of any case decided or proceedings taken by such authority for the purpose of satisfying himself as to the regularity of the proceeding; or as to the correctness, legality or propriety of any order passed by such authority in the case of proceedings, and may after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.” (emphasis added) It is manifest on a plain reading of the provisions of Section 35 that the Director of Consolidation may entertain a revision application, - 4 - call for and examine the records of any case decided, or proceedings taken by such authority, for the purpose of satisfying himself as to the regularity of the proceeding, or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings. It is evident that the learned revisional authority can entertain a revision application from an order of any authority below him. It appears to me that it is not essential that such authority must have passed the order within the four corners of the Act, so provided the cause raised in the revision application is within the sweep of the Act. Learned government counsel has relied on the judgment of this Court in Sabitri Devi vs. Rangnath Tiwary (supra), wherein it has been observed that such a revision application can be entertained even if the appellate forum has not been exhausted.

6. Applying these principles of law in the present case, it appears to me on a perusal of the impugned order that respondent no.3 had preferred the revision application against an allegedly wrong entry in the survey khatian prepared by the survey authorities. The petitioner is, therefore, not right in his submission that the revision application was entertained with respect to a cause of action directly. The following sentence occurring in the impugned order fully answers the question against the petitioner :- “izLrqr iqujh{k.k okn esa oknh ds fo}ku vf/koDrk dk dguk gS fd u;k [ksljk ua0 2425 jdok 13 Mh0 rFkk 2426 jdok 10 Mh0 gS tks u;k [kfr;ku esa xyrh ls lj;qx Hkxr firk & /kkuq Hkxr oks lhrkjke Hkxr oks t;ukjk;.k Hkxr oks foUns”oj Hkxr oks txzukFk Hkxr firk & ;ks/kk Hkxr ds uke ntZ gks x;k gSA” - 5 - The contention raised by learned counsel for the petitioner is rejected.

7. Learned counsel for the petitioner has next contended that he was not afforded a reasonable opportunity by the survey authorities nor by the learned revisional authority. The contention is stated only to be rejected. It appears on a perusal of the impugned order that the petitioner herein (opposite party therein) was duly noticed. He did appear, did file his written submissions, as well as a photo copy of a registered sale deed dated 14.2.2006, executed in his favour by one Bindeshwari Bhagat. It is further evident that local inspection was conducted in the presence of both the sides. The following portion of the impugned order substantiates this position :- “foi{kh ds }kjk flQZ fyf[kr cgl ,oa foUns”oj Hkxr }kjk [kjhn dsokyk fn0 14-2-06 dh Nk;kizfrA bl okn esa nksuksa i{kksa dh lgefr ij ukih djus ,oa j[ky dCtk dk izfrosnu nsus gsrq vf/koDrk vk;qDr dk fu;qfDr fd;k x;kA vf/koDrk vk;qDr misUnz ukjk;.k ik.Ms; }kjk izfrosnu Hkh fn;k x;k tks vfHkys[k ds lkFk layXu gSA” I am, therefore, of the view that the petitioner was afforded a reasonable opportunity of hearing by the learned revisional authority which he fully availed of. The contention is rejected.

8. It is thus evident on a perusal of the impugned order that, on a thorough consideration of the matter including the documents presented before him by both the sides as well as the report of local inspection, he set aside the khatian entry in favour of Saryug Bhagat. On a perusal of the impugned order, I am convinced that the khatian entry - 6 - was erroneous, and the impugned order has done substantial justice to the parties. Position may have been different had the reasonable opportunity not afforded to the parties to file their documents before him. In that view of the matter, I am convinced that the impugned order is correct on merits and substantial justice has been done to the parties.

9. Learned government counsel is further right in his submission that this Court in exercise of its discretionary, prerogative writ jurisdiction should not allow an illegal order to be revived and perpetuated. As discussed hereinabove, the entry in the khatian was erroneous which has been corrected by the impugned order. This Court shall strain every nerve to desist from reviving an illegal order. The following portion of the judgment in Naya Dawakhana vs. State of Bihar [ 1990 (2) PLJR 616 (DB) ] is relevant in the present context and is reproduced hereinbelow :- to the writ petition “53. At this juncture, the main submission made by Mr. Basudeo Prasad may be noticed. The learned Counsel submitted that even assuming that the order dated 15.10.1985 passed by the Minister-in-Charge and as contained in Annexure -10 is wholly without jurisdiction, this Court should not interfere with the said order as the order dated 22.12.1984, passed by the Drug Controller is also illegal and without jurisdiction. The learned Counsel, as contained hereinbefore, has placed heavy reliance upon the judgment of this Court in A. Mazid v. State Transport Authority, AIR 1960 SC 828, Jagan Singh v. 3rd Addl. District Judge Meerut, 1988 (1) SCC 40.

54. The ratio of the aforementioned decisions is neither in doubt nor in dispute. In the aforementioned decisions, it has been held by this Curt as well as by the Supreme Court that the issuance of writ of certiorari is a discretionary remedy. Such a writ may not be issued if substantial justice has been done to the parties or if in the event upon quashing of one illegal order it is found that the same would give rise to another illegality, the High Court in its discretion may quash both the orders.” - 7 - I had the occasion to apply the same in my judgment in Sri Prakash Singh vs. State of Bihar (supra).

10. In the result, I do not find any merit in the writ petition. It is accordingly dismissed. ( S K Katriar )