Asharfi Tiwary vs The Joint Director Of Consolid
2023 Latest Caselaw 5105 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                Civil Writ Jurisdiction Case No.4572 of 1986
======================================================

1. Asharfi Tiwari

2. Pasupati Tiwari both sons of late Ram Pratap Tiwari, Resident of village Fatehpur P.S. Paroo, District Muzaffarpur ... ... Petitioners Versus

1.The Joint Director, Consolidation (Muzaffarpur), Patna

2. The Dy. Director, Consolidation, Muzaffarpur.

3. The Consolidation Officer, Paroo.

4. Devendra Pd. Singh, son of late Sri Janakdeo Singh

5. Harendra Singh, son of late Sri Jagdish Singh

6. Yogendra Singh

7. Satyanarayan Singh, both son of late Sri Sarjug Singh

8. Shyam Singh, son of late Jyoti Narayan Singh

9. Parmod Singh

10. Ajay Singh both sons of late Bhagnaryan Singh Respondents 4 to 10 all residents of village Fatehpur P.S. Paroo, District Muzaffarpur.

... ... Respondents ====================================================== with Civil Writ Jurisdiction Case No. 4631 of 1986 ======================================================

1. Sitaram Thakur

2. Bhag Narain Thakur

3. Upendra Thakur sons of Ambika Thakur

4. Most. Radhika Devi, widow of Ambika Thakur

5. Nageshwar Thakur

6. Kameshwar Thakur

7. Maheshwar Thakur sons of Makhan Thakur, deceased All residents of village Bhokraha, P.S. Majorganj, District Sitamarhi ... ... Petitioners Versus

1. The Joint Director of Consolidation (Muz) Patna

2. Consolidation Officer, Majorganj .... .... Respondents Ist Party

3. Deep Narain Singh

4. Laxmi Narain Singh sons of Rajan Singh, deceased.

Both residents of village Harpur Kale, P.S. Majorganj, District Sitamarhi .... ..... Respondents 2nd party ... ... Respondents ====================================================== Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

Appearance :

(In both cases) For the Petitioner :

For the Respondent/s : Mr. Anjani Kumar, Senior Advocate (AAG-4) Mr. Alok Kumar Rahi, AC to AAG-4 Mr. Shailendra Kumar Singh, AC to AAG-4 Mr. Utkarsh Bhushan, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE MADHURESH PRASAD and HONOURABLE MR. JUSTICE NAWNEET KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

Date : 06-10-2023 These matters have been placed before the Full Bench

in the light of a reference made by this Court vide order dated

08.11.1988 passed in CWJC No. 4631 of 1986. An order passed in

CWJC No. 4572 of of 1986 has been noticed in the reference

order, whereby the said case was referred to a Division Bench for

consideration as to whether this Court's decision in the case of

Shyam Bihari Upadhyay & Ors Vs. State of Bihar & Ors (AIR

1985 Patna 275) lays down the correct law.

2. On a careful reading of the order sheet of CWJC No.

4572 of 1986, we, however, find that though the said writ petition

was directed to be heard by a Division Bench, there is no mention

of doubting the correctness of the decision rendered in the case of

Shyam Bihari Upadhyay & Ors (supra). In order to appreciate the Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

core legal issues raised in the reference order, it is deemed apt to

reproduce the reference order, which reads as under:-

" The fate of this application depends to a very great extent on the interpretation put to Section 13 and 35 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. Section 13 of the Act inter alia, says that after the draft consolidation scheme is confirmed and is published in the unit it shall become final except as otherwise provided by or under this Act. In this case undisputedly the draft consolidation scheme was confirmed and was published in the unit as no objection with regard to the chak in question was ever raised by the parties. After a lapse of several years respondent nos. 3 and 4 filed an application under section 35 of the Consolidation Act which was disposed of by the Joint Director Consolidation holding that the land in question belonged to respondent nos. 3 and 4 and directing the authorities to dealienate the land from the chak of the petitioner and enter the same in the khata of respondent nos. 3 and 4. According to the decision in the case of Shyam Bihari Upadhyay and others, petitioners v. State of Bihar and others respondents (A.I.R. 1985 Patna 275) the Director has unbridled power to interfere under section 35 of the Act. Learned counsel for the respondents, therefore, says that the order is absolutely lawful and valid. In case there is restrain on the part of the Director under section 35 of the Act, then he could pass this order but I feel that the Director also has to act under some limit while exercising powers under section 35 of the Consolidation Act. Section 35 clearly says that the Director may call for and examine the record of any case decided or proceedings taken by the authorities 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 the authorities in the case or proceedings. This provision, therefore empowers the revisional authority to call for records of a case or proceedings where there was dispute between the parties at the lower level. If there was no dispute between the parties with respect to any particular piece of land then there was no case or Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

proceedings, the records of which the Director can call for. Section 35 only empowers the director to call for the records and correct the mistake committed by the authorities under the Act. This section does not envisage in my view, to give an opportunity to the parties to create a lis and thereafter call for the records for the purpose of deciding the same between the parties. Admittedly objections were filed by the respondents' ancestors under section 10 of the Consolidation Act. Also admittedly the petitioners were not parties to that objection and perhaps in the objection the lands in question were also not included. It appears that the lands in question were for the first time included in the objection under section 35 of the Act by way of amendment. Be that as it may, there was certainly no lis between the parties with regard to the lands in question before the matter was entertained by the director under section 35 of the Act.

Further there is another important question also involved in this case. As I have indicated above section 13 provides that on publication the draft chak becomes final. The finality is given after the parties have been given opportunity of filing appeal against the draft chak passed by the Consolidation officer and also of a revision under Section 35 of the Act in case the appellate appellate order goes against him. Therefore, the question that arises is whether after the opportunity to challenge the draft chak is either exhausted or not availed of. The director in exercise of his power under section 35 of the Act can undo the finality assigned to the draft chak under section 13 of the Act. These are the important questions which may be applicable to a large number of case. In fact C.W.J.C. No. 4572 of 1986 has been referred to a Division Bench for consideration as to whether the law has been correctly laid down in A.I.R. 1985 Patna 275. I, therefore, refer this case also to a large Bench. This order may be placed before the Hon'ble the Chief Justice for his consideration as to whether this case should be placed before a Bench of three Judges."

3. On a close reading of reference order dated

08.11.1988 passed in CWJC No. 4631 of 1986, as quoted above, it Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

can be easily culled out that following are main questions posed to

be answered by the Full Bench;-

(i) Whether Section 35 of the Act permits the parties to

be given an opportunity to create lis and, therefore, call for the

records for the purpose of deciding the same between the parties,

even in a case where there is no dispute between the parties with

respect to particular piece of land and, therefore, there was no case

or proceeding, the records of which could be called for?

(ii) A draft consolidation scheme is published under

Section 13 of the Bihar Consolidation of Holdings and Prevention

of Fragmentation Act, 1956 ('the Act' in short), the same attains

finality except as otherwise by or under the said Act. Whether 'the

Director (Consolidation)' within the meaning of Section 2(4) of the

Act is required to act under certain restrain while exercising

powers conferred under Section 35 of the Act?

(iii) Whether the Director of Consolidation, in exercise

of his power conferred under Section 35 of the Act can undo the

finality assigned to the draft 'Chak' under Section 13 of the Act?

(iv) Whether the law in this regard had been correctly

laid down by a Division Bench of this Court in the case of Shyam

Bihari Upadhyay & Ors (supra)?

Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

4. It is manifest from the reference order that Section 35

of the Act is at the core of the issue which requires consideration.

5. We consider it useful to notice, at the outset, Section

35 of the Act, as it existed originally, which read as under:-

"35. Power of State Government to call for proceedings- The State Government may, at any time, for the purpose of satisfying itself as to the legality or propriety of any order passed by an officer under this Act, call for and examine the records of any case pending before or disposed of by such officer and may pass such order as it thinks fit:

Provided that no order shall be varied or reversed without affording the parties interested an opportunity of being heard."

6. The said provision was subsequently amended by

substitution by Bihar Act 27 of 1975 as under:-

"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 proceedings; or as to the correctness, legality or propriety of any order passed by such authority in the case or 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."

7. As the reference order pertains to the revisional

jurisdiction of the Director (Consolidation) under Section 35 the

Act with reference to finality of 'Chaks' under Section 13 of the

Act, we deem it just and proper to reproduce the said provision,

which reads as under:-

Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

"[13. Submission of scheme to the Director of Consolidation. - (1) The Assistant Director of Consolidation shall confirm the draft consolidation scheme-

(a) if no objections are filed within the time specified in Section 12; or

(b) where such objections are filed after such modification or alterations, as may be necessary, in view of the order passed under sub-sections (1) to (4) of Section 12A.

(2) The draft consolidation scheme so confirmed shall be published in the unit, and except as otherwise provided by or under this Act, shall be final.

(3) (i) Where the allotments made under Section 11 are not modified under Section 12A and are confirmed under sub-section (1), the entries contained in the extracts issued under sub-section (1) of Section 12, shall, except as provided by or under this Act, be treated as final allotment orders for the raiyats and under raiyats concerned.

(ii) Extracts of the scheme showing allotment to the raiyats concerned as confirmed under sub-section (1) shall be issued by-

(a) the Consolidation Officer where the allotments are not modified; and

(b) the Assistant Director of Consolidation, where the allotments have been modified, and the same shall, except as otherwise provided by or under this Act, be the final allotment orders for raiyats and under raiyats concerned.]"

8. In view of the submissions advanced by Mr Anjani

Kumar, learned AAG-4 for the State of Bihar, with reference to the

law laid down by a Full Bench of Allahabad High Court in the

case of Rama Kant Singh Vs. Deputy Director of Consolidation,

U.P., Lucknow Camp. at Varanasi and others (AIR 1975

Allahabad 126), we consider it desirable to notice Section 48 of

U.P Consolidation of Holdings Act, 1953 also which is pari Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

materia with Section 35 of the Bihar Consolidation of Holdings

and Prevention of Fragmentation Act, 1956:-

"48. Revision and reference. - (1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order] [other than an interlocutory order] passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.

(2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub-section (3).

(3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub- section (1).

[Explanation. -] [(1)] For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation.

Explanation (2) - For the purposes of this section the expression 'interlocutory order' in relation to a case or proceeding, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect to finally disposing of such case or proceeding.

[Explanation (3). - The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence.]"

Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

9. We have heard Mr Anjani Kumar, learned AAG-4

appearing on behalf of the State though there is no representation

on behalf of the petitioners in either of the cases, we have

proceeded to answer the reference, considering the significance of

the questions posed in the reference order.

10. Mr Anjani Kumar, learned AAG-4 has submitted, at

the very outset, that legal position as regards scope of Section 35

of the Act and the power of the Director (Consolidation) within the

meaning of the provisions of the Act is no more res integra in

light of the Full Bench (three Judges) decision of this Court

rendered in the case of Seikh Haidar Zan Vs. Md. Yusuf Ansari &

anr reported in 2000(2) PLJR 338. The Full Bench decision in the

case of Seikh Haidar Zan (supra) though deals with scope of

Section 35 of the Act despite the statutory bar under Section 10(A)

of the Act, the said decision answers the questions arising in the

present reference, he contends. He has also argued that similar

statutory bar, which is there under Section 10(A) of the Act is

prescribed under Section 11 of the U.P Consolidation of Holdings

Act, 1953, and despite the said bar the wide power of revision

vested under Section 48 of the U.P Consolidation of Holdings Act,

1953, has been recognized by the Allahabad High Court and the

Supreme Court as well. He has placed reliance on Supreme Court's Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

decision in the case of Ram Dular Vs. Dy. Director of

Consolidation Jaunpur and Ors reported in 1994 Supp (2) SCC

198, Sheo Nand and Ors Vs. Deputy Director Of Consolidation,

Allahabad and Ors reported in (2000) 3 SCC 103, Seshmani and

Anr Vs. Deputy Director of Consolidation, District Basti, U.P. &

Ors reported in (2000) 2 SCC 523. Reliance has also been placed

by him on a Division Bench decision of this Court in the case of

Ram Sundar Chaudhary and Ors Vs. Ram Nath Chaudhary and

Ors reported in 2003(2) PLJR 184, to contend that the revisional

authority has wide powers to call for and examine the records for

the purpose of satisfying himself as to the regularity of the

consolidation proceeding or as to the correctness, legality or

propriety of any order passed by such authority in the cases or

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. Further, another Division Bench

decision of this Court in the case of Jagat Singh and Ors Vs.

State of Bihar and Ors reported in 2006(4) PLJR 441, has also

been cited by Mr. Kumar to support his argument.

11. At the outset, we must refer to Full Bench decision

of this Court in the case of Seikh Haidar Zan (supra). In the case Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

of Seikh Haidar Zan (supra), the Full Bench had formulated three

questions, which had arisen for consideration as under:-

"6. It would, thus, appear that as per the order of reference three questions arise for consideration in this case:--

(1) Whether the consolidation operation comes to an end with the final publication of the record of right under section 16 of the Consolidation Act?

(2) Whether the bar of section 10A applies to the exercise of revisional power under section 35 of the Consolidation Act? And (3) Whether a suit based on title challenging the correctness of the entries in the record of right published under section 16 of the Consolidation Act is maintainable in the civil court?"

12. In the present case, we are concerned with the

second question only, which pertains to the revisional power

vested under Section 35 of the Act. It would be pertinent to

mention at this juncture that in the case of Seikh Haidar Zan

(supra), question no. 2, as noted above, has been answered

unanimously by all the three judges, whereas question no. 3 was

decided by majority view of Hon'ble S.N. Jha and Hon'ble Anand

Sahay J.J. with the dissenting opinion of Hon'ble Mr. Justice N.

Rai. It is a different matter that the minority view in the case of

Seikh Haidar Zan (supra) has been approved by a Special Bench

of five Judges of this Court in the case of Prabhawati Kumari vs.

State of Bihar and Others reported in 2019(4) PLJR 430, on the

point of question no. 3 formulated, as noted above. The present Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

controversy is confined to the question of scope and amplitude of

Section 35 of the Act. It is noteworthy that a Division Bench of

this Court, in the case of Hari Narayan Singh & Ors Vs. State of

Bihar & Ors reported in 1997 (2) BLJR 982, had held that though

the revisional power under Section 35 of the Act was wide but not

so wide as to authorize the revisional authority to act contrary to

the express provisions of Section 10(A) of the Act.

13. Hari Narayan Singh & Ors (supra) was decided

placing reliance on the Supreme Court's decision in the case of

Ram Dular Vs. Dy. Director of Consolidation Jaunpur and Ors

reported in 1994 Supp (2) SCC 198. The Full Bench, in the case

of Seikh Haidar Zan (supra), has unanimously decided that the

bar created by Section 10A of the Act is not applicable to the

exercise of revisional power under Section 35 of the Act and

accordingly the finding of Division Bench in Hari Narayan Singh

& Ors (supra) does not lay down the correct law.

14. Before reaching the aforesaid conclusion, the Full

Bench noted in the case of Seikh Haidar Zan (supra) that the

Supreme Court's decided the case of Ram Dular (supra) on facts

and that there was nothing in the judgment in the said decision to

suggest that the bar under Section 11 of U.P Consolidation of

Holdings Act, 1953, which corresponds to Section 10(A) of the Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

Act, also applies to the exercise of power by revisional authority

under Section 48 of the U.P Consolidation of Holdings Act, 1953,

(which corresponds to Section 35 of the Act).

15. The Full Bench noted that the Supreme Court had

observed in the case of Ram Dular (supra) that though Director

(Consolidation) had power to satisfy as to the

correctness/legality/propriety of the authority under the Act, it,

while considering the correctness and legality of the order or

proceeding thereof, could not assume himself the jurisdiction of

original authority as a fact finding authority by appreciating those

facts, de novo.

16. On a closer reading of the provisions under Section

35 of the Act and Section 48 of the U.P Consolidation of Holdings

Act, 1953, it can be easily inferred that the said provision are akin

to each other and confer similar revisional powers on the

Director/Deputy Director of Consolidation.

17. The scope of revisional jurisdiction under Section 48

of the U.P Consolidation of Holdings Act, 1953, fell for

consideration in the case of Pritam Singh Vs Assistant Director of

Consolidation reported in (1996) 2 SCC 270, before the Supreme

Court, wherein the Apex Court held that in exercise of revisional

jurisdiction, the Assistant Director (Consolidation) could recall the Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

findings recorded by the Settlement Officer. The point for

consideration before the Supreme Court, in the case of Pritam

Singh (supra) was whether the validity of the remand order, passed

in a separate proceeding earlier, could be challenged before the

Revisional Authority under Section 48 of the U.P Consolidation of

Holdings Act, 1953, when that order had not been challenged on

earlier occasion.

18. The Supreme Court held, in the case of Pritam

Singh (supra), that the Assistant Director (Consolidation) had

power to examine the correctness of the remand order passed by

the Settlement Officer though having not specifically put to

challenge in a separate independent proceeding. The Full Bench in

the case of Seikh Haidar Zan (supra) has noticed the Division

Bench decision in the case of Shyam Bihari Upadhyay (supra),

wherein, it was laid down by Division Bench that Section 10 of the

Act did not operate as a bar to the exercise of revisional power by

the Director, Consolidation under Section 35 of the Act. The

decision of the Division Bench of this Court in the case of Shyam

Bihari Upadhyay (supra) has been approved by the Full Bench in

case of Seikh Haidar Zan (supra).

19. Further, dealing with Section 48 of the U.P.

Consolidation Act, the Supreme Court in case of Gaya Din & Ors. Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

vs. Hanuman Prasad & Ors. reported in (2001) 1 SCC 501, has

held that the revisional power of the Director, Consolidation, is not

confined to the errors of jurisdiction as was the position under the

unamended provision. Such power of revisional authority under

the said Act extends to satisfying himself as to the regularity,

correctness, legality or propriety of any order other than an

interlocutory order. It laid down that even though Section 48 has

been couched in right terms, it only permits interference where

findings of subordinate authority are perverse in the sense that they

are not supported by the evidence brought on record or they are

against law or whether they suffered from the vice of procedural

irregularity.

20. In case of Sheo Nand (supra), the Supreme Court

had occasion to deal with the scope of revisional power vested in

the revisional authority under Section 48 of the U.P. Consolidation

Act. The Supreme Court held in paragraphs 20 to 22 as under:-

"20. The section gives very wide powers to the Deputy Director. It enables him either suo motu on his own motion or on the application of any person to consider the propriety, legality, regularity and correctness of all the proceedings held under the Act and to pass appropriate orders. These powers have been conferred on the Deputy Director in the widest terms so that the claims of the parties under the Act may be effectively adjudicated upon and determined so as to confer finality to the rights of the parties and the revenue records may be prepared accordingly.

21. Normally, the Deputy Director, in exercise of his powers, is not expected to disturb the Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

findings of fact recorded concurrently by the Consolidation Officer and the Settlement Officer (Consolidation), but where the findings are perverse, in the sense that they are not supported by the evidence brought on record by the parties or that they are against the weight of evidence, it would be the duty of the Deputy Director to scrutinise the whole case again so as to determine the correctness, legality or propriety of the orders passed by the authorities subordinate to him. In a case, like the present, where the entries in the revenue records are fictitious or forged or they were recorded in contravention of the statutory provisions contained in the U.P. Land Records Manual or other allied statutory provisions, the Deputy Director would have full power under Section 48 to reappraise or re-evaluate the evidence- on-record so as to finally determine the rights of the parties by excluding forged and fictitious revenue entries or entries not made in accordance with law.

22. If, therefore, during the course of the hearing of the revision filed by the appellant under Section 48 of the Act, the Deputy Director reopened the whole case and scrutinised the claim of the appellants in respect of two other villages, it could not be said that the Deputy Director exceeded his jurisdiction in any manner. It will be noticed that while scrutinising the evidence-on-record, the Deputy Director had noticed that the entries were fictitious and in recording some of the entries in the revenue records in favour of the appellants, statutory provisions including those contained in the U.P. Land Records Manual were not followed. In that situation, the Deputy Director was wholly justified in looking into the legality of the entire proceedings and disposing of the revision in the manner in which he has done."

21. The scheme of consolidation of lands and provision

of fragmentation under the U.P. Consolidation Act and that under

the Bihar Consolidation of Holdings and Prevention of

Fragmentation Act, 1956 are similar. The revisional power Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

available under the U. P. Consolidation Act are akin to each other.

The scope of revisional power under Section 48 of the U. P.

Consolidation Act has already been considered by the Supreme

Court in case of Gaya Din & Ors. (supra) and Sheo Nand (supra).

In no uncertain terms, it has been held by the Supreme Court in

case of Sheo Nand (supra) that the revisional power under Section

48 of the U. P. Consolidation Act has been conferred in the widest

terms so that the claims of the parties under the Act may be

effectively adjudicated upon and determined so as to confer

finality to the rights of the parties and the revenue records may be

finally prepared.

22. We find force in the submission made by Mr. Anjani

Kumar, learned AAG-4 that the questions raised in the reference

order stood effectively answered by the Full Bench of this Court in

case of Seikh Haidar Zan (supra). In our considered view, if the

bar created under Section 10A of the Act does not apply to

exercise of revisional power under Section 35 of the Act, we see

no reason why confirmation of draft consolidation scheme and its

publication under Section 13 of the Act shall create a bar in

exercise of revisional jurisdiction under Section 35 of the Act. We

make it clear that we do not find any reason to take a view

different from that has been taken in case of Seikh Haidar Zan Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

(supra) on the wide scope of revisional jurisdiction under Section

35 of the Act.

23. It is manifest on a plain reading of Section 35 of the

Act that it confers a general power of superintendence and control

upon the revisional authority, which can be exercised either suo

motu or on an application. The revisional authority has the

jurisdiction under the said provision to call for records for

satisfying itself as regards the irregularity or otherwise of the

proceedings or the legality, correctness, propriety of any order

passed by the subordinate authorities.

24. It cannot be said, however, that the revisional

authority has an unbridled power to exercise under Section 35 of

the Act. It has been noted in case of Sheo Nand (supra) that

normally the revisional authority in exercise of his powers is not

expected to disturb the findings of facts recorded concurrently by

the Consolidation Officer and the Settlement Officer

(Consolidation), but where findings are perverse, in the sense that

they are not supported by the evidence brought on record by the

parties or they are against the weight of the evidence, it would be

the duty of the Deputy Director to scrutinize the whole case again

so as to determine the correctness, legality and propriety of the

orders passed by the authorities subordinate to him. Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

25. In view of the aforesaid discussions, our answer to

the questions raised in the reference order are as under: -

(I) The amplitude of revisional power under Section 35

of the Act is wide, which can be exercised by the revisional

authority either suo motu or on an application of any person. If

such power can be exercised suo motu, there is no reason why

such power cannot be exercised based on materials available

before him, even in a case where there is no dispute between the

parties, considering the nature of the scheme of the Act. If any

exercise undertaken by the revisional authority invoking provision

under Section 35 of the Act has the consequence of a dispute being

created between/amongst the parties affected, the same in itself

will not create a bar on revisional jurisdiction.

(II) Finality of draft consolidation scheme under Section

13 of the Act does not create a bar on exercise of revisional

jurisdiction under Section 35 of the Act. However, such power is

to be exercised on the well settled principle that the revisional

authority is not expected to disturb the findings of facts recorded

concurrently by subordinate authorities. Such power can be

invoked only when the findings are perverse, not supported by any

evidence brought on record by the parties or are contrary to the

records.

Patna High Court CWJC No.4572 of 1986 dt.06-10-2023

(III) Question No. 3 stands answered by answer to

question 2.

(IV) Question No. 4 stands directly answered by the Full

Bench in case of Seikh Haidar Zan (supra), wherein it has been

clearly held that the law enunciated in case of Shyam Bihari

Upadhyay & Ors (supra) is the correct view.

26. We answer the reference accordingly. Let these

matters be placed before appropriate bench under the orders of

Hon'ble the Chief Justice.

(Chakradhari Sharan Singh, J)

Madhuresh Prasad, J: I agree.

(Madhuresh Prasad, J)

Nawneet Kumar Pandey, J: I agree.

                                                                   (Nawneet Kumar Pandey, J)

Ranjan-Pawan
AFR/NAFR                NAFR
CAV DATE                26.09.2023
Uploading Date          11.10.2023
Transmission Date       11.10.2023