Ram Chandra Ram and others vs Commissioner, North Chotanagpur and others

S.S. Sandhawalia, C. J.

A veiled doobt about the correctness of the Division Bench Judgment in Sri Kalot Chowdhary v. the state of Bihar and others(1980 BBCJ 373) had ori-ginally necessitated this reference to the Full Bench at the threshold stage of admission. That issue has, however, been totally eclipsed and what now comes to the force is the question whether a second revision is still maintai-nable in mutation proceedings despite the repeal of section 17of the Bihar Tenants Holdings (Maintenance of Records) Act, 1973,by vh-toe of Bihar Ordinance 62 of 1982 and the subsequent Bihar Act 3 of 1983 The facts, which deserve notice for the purpose of the pristine legal issue aforesaid, lie in a narrow compass. Shorn of details, these are that petitioner no. 1 Ram Chandra Ram, applied before the Anchal Adhikari, Ho-darma, for the mutation qf 1.38 acres of land in viliage Moriawan. On that basis, Mutation Case no. 29 of 1977-78 was started and in, the subtequant- proccedings, the. Anchal Adhikari allowed the mutation of the said land in fa-vour of the petitioners. Respondent no. 5, Shrimati Indira devi wife of Akal Ram pre-ferred Mutation Appeal no. 11 of 1977 before the Land Reforms Deputy Collector, Kodarma who allowed the same (vide annexure 5). Ag-grieved thereby, petitioner no. 1 preferred a revision before the Additional Collector. Haja-ribagh, who in turn allowed the same and set aside the order of the Land Reforms Deputy Collector. Respondent no. 5 Indira Devi, then filed a seoond revision before the Commissioner, North Chotanagpur Division, which was reg�stered as Mutation Revision no. 14 of 1983. By a detailed order of the 2nd of August, 1983 the Commissioner (vide annexure 7) allowed the revision and set aside the order of the Additional Collector. The primal challenge in this writ petition is to the very maintatpabilityof the second revision before Commissioner.

The solitary though forceful cantention of Mr. N.K. Prasad is that at the material time in 1983, the second revision to the Commisioner was no longer competent in view of the repeal of section 17 of the Bihar Tenants Holdings (Maintenance of Records) Act 1973 by virtue of the earlier Ordinance no. 62 of 1982 and the subsequent enactment of the Bihar Tenants Holdings (Maintenance of Records)(Amendment) Act, 1982.

To appreciate -the aforesaid contention, it is necessary to have a brief retrospect of the provisions governing the appeals and revisions in the specific filed of mutation proceedings. It will appear that prior to 1983 this arena was not covered by any act of the legislature or statutory rules framed thereunder. In the abse-nce thereof it seems common ground that the instruction for the disposal of mutation cases as contained in the Revenue Department, Government of Bihar letter to. EXXIV-305/63-101 LR dated the 4/7th January, 1963 gover-ned the proceedings. Curiously enough, lear-ned counsel for the parties were somewhat ambivalent about the statutory source of these instructions whether they emanated by virtue of section 13 of the Bihar Land Reforms Act or flowed from the Bihar Board''s Miscellane-ous Rules. Be that as it may, the relevant para 10 of the said instructions was in the terras following.

Appeals.-An appeal should be filed against the order of the Anchal Adhikari within a period of 30 days from the date of the order; a revision petition will lie before the Collector or the Additional Collector within a period of 60 days from the date of the appellate order; a second revision may be entertained by the, Divisional Commissioner within a period of 60 days from the date of the order pas-sed by the Collector or the Additional Collector provided the Commissioner is satisfied that there are adequate grounds for entcrtaining a second revision petition.

However in the year 1973 the matter was sought to be given statutory foundatioa by the enactment of the Bibar Tenants ''Holdings (Maintenance of Records) Act, 1973 (hereina-fter to be referred to as the ''Act''). This recei-ved the assent of the President of �ndia on the 5th of May, 1975 and was published in the Bihar Gazette (Estraordinary) no. 930 dated 20th of August, 1375. The preamble thereof clearly indicates the larger purpose of the Act as under;

To provide for the maintenance of up-to-date records of holdings of raiyats in the State of Bihar and matters connected thcrewith.

Section 1 of the Act, to which reference would have to follow. is in the following terms.

Short title, cxtent and commen cement:-

(1) This Act may be called the Bihar Tenant''s Holdings (Maintenance of Reco-rds) Act, 1973

(2) It extends to the whole of the State of Bihar.

(3) It shall come into force on such date and in such rea as the State Government may, by notification in the Official Gazette, appoint, difierent dates as may be appointed for difierent reas of the State.

Chapter III of the Act then provided in terms for the mutation proceedings by the de-tailed prov�sion of section 14 contained there in. Immediately succeeding this prov�sion comes Chapter IV headed as-

APPEALS. REVISIONS AND POWER TO CALL FOR RECORD OF ANY CASE.

Section 15 therein provided for an appeal to the Land Reforms Deputy Collector against the order of the Anchal Adkllcari passed u/s 14 (3) within the time prescribed. Section 16 then provided for a revision by the Collector on the grounds of legality or propriety of any order made under the Act, Thereafter section 17 spilt out the power of the Commi-asioner of the Division to call for the record of any case but limited the exercise.of the said power in terms identical with that of the well known section 115 of the Code of Civil Pro-ceedure. Undoutedly. the provisions ofChap-tefs III and IV containing sections 14 to 17 would, thus, supplant and substitute all earlier provisions either by way of rules or instruct-ions, etc, Inevitably included in this category w�iild be para 10 of the instructions referred to above. It is axiomatio that the two parallel ptocednral provisions could not possibly be allowea to have play in the satne ideotidal fleld and in any case the statutory provisions of a dtity tnacted statute would override the mere govenmental instructions on the point.

It would appear that the passage of about a decade necessitated substantial chan-ges in the Act. Consequently on the 18th of October, 1982 the Bihar Tenants Holdings (Maintenance of Records) (Amendment) Ord-inance, 1982 (Bihar Ordinance no. 62 of 1982) was promulgated making structural changes in the Act by way of substantial amendments. Section 10 of the said Ordinance in express terms provided that section 17 of the Act shaff be omitted. It would appear that even then so me what limited exercise of power by way of A second revision by the Commissioner was found incongruous and its deletion became necessary in order to cut down the inordm�-tely long hierarchy of appeals and revisions �n the forums of some what simplistic fleld of revenue mutat�ons. The Ordinance was followed'' by the Bihar Tenant''s Holdings (Maintenance of Records) (Amendment) Act, 1982 (Bihar Act, No. 3 of 1983) (hereinafler called the Amending Act''), and by section 9 thereof the earlier repeal of section 9 of the Aot was mainta-ined. It came into force on March II, 1983.

Mr. Bajaj, the learned counsel for the respondents. had Srst pointed out that no obj-ection to the maintainability of the second revision was tafcen before the commissioner and this is perhaps so becatne no reference ther�to is found in the jndgment of the Commissioner. Although we are of the opinion that a preliari-nary objection about the maintainability should be raised at the very earliest, yet it is equally-well settled that contention which goes to the root of the matter and the very existence of the jurisdiction may be permitted to be raised for the first time in a higher forum. Apparently in the year 1983 the amendig Ordinance and the subsequent Act were of recent origin and th� learned counsel for the parties may not have been well aware thereof. In the present case we have no hesitation in permitting the learned counsel for the petitioners, Mr. Prasad, t� raise this contention in the writ jurisdiction.

Mr. Bajaj had then altempted to con-tend that para 10 of the instructions would still continue to be operative despite the repeal of section. 17 even in jurisdiction where the Act had not extended. This argument is only to be noticed and rejected. As has already been pointed out the provisions of Chapters III and IV of the Act are specific provisions with regard to. the mutation proceedings and the appeal and revision arising therefrom. They would thus cover the field to the exclusion of any tother instruction to the contrary. Obvi-ously enough, a mere instruction cannot be allowed to override as Act duly enforced by the legislature within the same jurisdiction. lt would be thus plain that para 10 would cease to have any force in all those areas to which the Act of 1973 had been duly extended in matters pertaining to mutations- The contention of Mr. Bajaj in this context, therefore, must be rejected.

However, it seems that though Mr. Prasad substantially succeeds on the legal quesitos raised by him, he has secured only a pyrrhic victory Relying on sub-section(3) of saction 1 of the Act, Mr. Bajaj pointed out that the provisions of the said Act would come into, force only on such date and in such areas as the state Government may by notification in the Official Gazette appoint and different dates may be appointed for different areas of the State. Counsel took the stand that the said Ast had, as yet. not been extended to the Hazaribagh district Our attention was drawn to Government S.O.683 dated 11th of may, 1978 by virtue of which the provisions of the Act have been extended to the specified Anchals of Purnia district with effect from the lst day of June, 1978. Similarly. by G. C. S. O. 1049 dated Ist day of August, 1978 the Act has been enforced with effect from the lst day of August, 1978 in specified Anchals of the Munger district, East Champaran, Nalanda and Patna districts only. On these premises, Mr. Bajaj was firm that as yet the provisions of the Act have no application in the district of Hazaribagh. Despite extended opportunity given to the learned counsel for the petitioners, they have been unable to bring to our notice any notification extending the Act, to the rele-vant jurisdiction in Hazaribagh. Once that is so, it is plain that the earlier pos�tion under para 10 of the instructions would continue to inhere whereunder the second revision to the Commisioner would be maintainable. No challenge on the merits of the order of the learned Commissioner was at all laid.

Before parting with this judgment we would notice that in view of the l�ne of arguT ment in the case no occasion arose for the construction (sic) of the ratio in 1980 BBCj 373 (supra) and indeed learned counsel for the parties did not even refer to the same.

Finally to conclude, the answer to the question posed at the outset is rendered in the negative, and it is held that a second revision would not now be maintainable in the mutation, proceedings after the repeal of section 17 of the Bihar Tenants'' Holdings (Maintenance of Records) Act, 1973 in all reas where the Act has been duly extended and enforced. However, in the present writ petition since it has not been showu that the Act of 1973 has been extended to Hazaribagh district the contentions, raised on behalf of the petitioners must fail and this writ Petition is consequently dismissed but without any order as to cost.

Satyehwar Roy, J.

I agree.

Anand Prasad Sinha, J.

I agree.