JUDGMENT
Shambhu Prasad Singh, J.
1. A scheme under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as ‘the Act’) in relation to village Barakhurd, Thana No. 61, Thana Bihar, District Patna (now Nalanda) was confirmed on 20th of July, 1972. On 12th of August, 1972, notices for delivery of possession and measurement were issued. On 13th of October, 1972 delivery of possession and demarcation of holdings were completed but before certificates of transfer could be distributed an order staying their distribution WAS passed by the then Revenue Minister of the State of Bihar, Shri Kedar Pandey. The order was passed in May June, 1974 on an application of Jagat Kishore Prasad Narain Singh resulting in holding up of distribution and grant of certificate of transfer in respect of the holdings allotted to different raiyats under the scheme.
The Revenue Minister also passed an order in purported exercise of power under Section 26 of the Act revoking and cancelling the old scheme of consolidation of holdings in tola Dharampur, Mahagupur, Noni-abighe and Manare of the said village Barakhurd and also for preparation of a fresh scheme of consolidation of holdings. In pursuance of this order, the consolidation officer, Ekangarsarai, as directed by Director of Consolidation, passed an order dated 16th of December, 1974, commencing de novo proceeding under the Act from the State of Khanapuri. The petitioners of these two writ applications pray for quashing of the aforesaid orders staying the distribution and grant of certificates of transfer and revocation of the old scheme as well as the preparation of a fresh scheme in respect of the lands of the aforesaid four tolas.
2. There are two petitioners in C. W. J. C. No. 193 of 1975, namely Chandrawati Singh and Raghuraj Singh. Chandrawati Singh is the wife of Ram Kishore Prasad Narain Singh, brother of Jagat Kishore Prasad Narain Singh, and Raghuraj Singh is the husband of Janak Kishori, a sister of Jagat Kishore Prasad Narain Singh. In C. W. J. C. 192 of 1975 originally there were 60 petitioners. Subsequently learned lawyer appearing for the petitioners got the names of as many as 23 of the petitioners deleted and now there are only 37 petitioners. Jagat Kishore Prasad Narain Singh is respondent No. 5 in C. W. J. C. No. 193 of 1975 and respondent No. 4 in the other case.
The Consolidation Officer, Ekangarsarai, is respondent No. 3 in C. W. J. C. No. 193 of 1975 and respondent No. 2 in the other case. The Director of Consolidation, Bihar, is respondent No, 4 in C. W. J. C. No. 193 of 1975 and respondent No. 1 in the other case. State of Bihar is respondent No. 1 in C. W. J. C. No. 193 of 1975 and respondent No. 3 in the other case. Shri Kedar Pandey the then Revenue Minister is respondent No. 2 in C W. J. C. No. 193 of 1975. He has not been made a party in the other case. Chandrawati Singh and Raghuraj Singh, the petitioners of C. W. J. C. No. 193 of 1975 are respondent Nos. 5 and 6 respectively in the other case. The points for decision in the two cases being almost common they have been heard together and are being disposed of by this judgment wherein Chandrawati Singh and Raghuraj Singh will be referred to as the Petitioners of C. W. J. C. No. 193 of 1975 and other respondent of either case according to their number in C. W. J. C. No. 193 of 1975.
3. Order for notification under Section 3 of the Act in respect of village Barakhurd was passed by respondent No. 3 as early as 11th of January, 1962 and the scheme, as stated earlier, was completed on or about 20th of July, 1972. According to the case of the petitioners of both the cases, various steps in relation to preparation of tbe scheme as envisaged by the Act were taken during this period. Objections were invited and received under Section 12 of the Act in the year 1967-68 after the publication of the draft scheme and again in 1972 under Section 13 of the Act and no objection at all was filed by respondent No. 5 at any stage. Tt was only some time in 1973 (on 17th of February, 1973) that respondent No. 5 filed a petition annexure 3 to C. W. J. C. No. 193 of 1975 before respondent No. 3 for recording
his name in place of the petitioners of C. W. J. C. No. 193 of 1975. Respondent No. 3 submitted a report (annexure A to the counter affidavit of respondent No. 5) which according to the aforesaid petitioners, was collusive one.
The same matter was, however, agitated before and heard by the Deputy Director of Consolidation and disposed of by his order dated 10th of January, 1974 (annexure 4 to C. W. J. C. No. 193 of 1975). He rejected the prayer of respondent No. 5. Respondent No. 5 then filed an application under Section 35 of the Act before the Board of Revenue which was heard and disposed of by the Additional Member, Board of Revenue. He rejected the application. Against that order respondent No. 5 also moved this Court in C. W. J. C. No. 190 of 1974 which was not admitted Respondent No. 5 then filed an application before respondent No. 1 for revocation of the old scheme and preparation of a new scheme under Section 26 of the Act.
The then Revenue Minister (Shri Lahtan Choudhary) took the view that it would not be proper to revoke the whole scheme at the instance of an individual who could pursue his remedy in civil court. The Chief Minister recorded his concurrence to this view. The order of rejection, as claimed by the aforesaid two petitioners, was communicated to respondent No. 5 vide letter No. 943 dated 28th of May, 1974.
4. In the meantime, however, on 30th of April, 1974, Shri Kedar Pandey took over as Revenue Minister. It is claimed on behalf of the two petitioners of C. W. J. C. No. 193 of 1975 that Shri Kedar Pandey and respondent No. 5 are intimate friends and taking advantage of the fact respondent No. 5 filed a fresh petition (annexure 8 to C. W. J. C. No. 193 of 1975) on 17th of May, 1974 before the Revenue Minister making out in substance the same case as in the previous application to the Government which had been refused and respondent No. 2 passed an order staying the distribution of the certificates of transfer which is sought to be challenged in these writ applications.
On coming to know of this new move of respondent No. 5 petitioners of C. W. J. C. No. 193 of 1975 protested against the reopening of the matter firstly by an application dated 24th of June, 1974 addressed to the Chief Minister (annexure 9) and again by an application dated 29th of July, 1974 addressed to the Revenue Minister (Annexure 9/A). Respondent No. 2 mala fide and with oblique motive of helping his friend
and favourite respondent No. 5 circumveated the earlier decisions and the views of the departmental officers and recorded a decision that the consolidation proceeding should be taken up again by a fresh scheme on the ground that there had been many irregularities in the proceeding. When the matter was put up before the Chief Minister he recorded his views against the reopening of the matter and observed that the whole scheme should be revoked only if the mistakes and irregularities could not be rectified by the procedure suggested by respondent No. 4. The Chief Minister wanted the matter to be re-examined by the Law Department. Respondent No. 2, however, mala fide sidetracked the matter and after obtaining the report from the Deputy Director of Consolidation reiterated his decision that there should be fresh proceeding with fresh scheme in accordance with Section 2 6 of the Act. The Chief Minister appears to have merely signed below the decision of respondent No. 2 evidently without applying his mind to his own earlier minutes and other relevant considerations.
Respondent No. 2 firstly desired a fresh scheme only in respect of tola Dharampur alone evidently because his friend and favourite respondent No. 5 was interested only in the lands of that tola. It was only after the Deputy Director pointed out that revocation and fresh scheme could not be for Dharampur alone that respondent No. 2 decided for revocation and fresh scheme for three other tolas. It is asserted on behalf of petitioners of C. W. J. C. No. 193 of 1975 that mala fide exercise of power by respondent No. 2 would be further evident from the fact that an order purporting to be under Section 26 of the Act was passed though a decision had already been taken by the Government earlier to delete Section 26 from the Act.
5. The petitioners of C. W. J. C. No. 192 of 1975 after stating some of the facts which have been stated by the petitioners of C. W. J. C. No. 193 of 1975 have asserted that after delivery of possession of the lands allotted to them under the scheme they have settled down and have invested huge sums of money for the improvement of lands, namely, by sinking of tube-wells, by improving the soil, putting on earth as well as proper fertilizer and by setting up electrical pumps for providing proper water facilities for the purpose of cultivation. They further claim that some of them have built up their homes over the lands allotted to them to look after the cultivation and thus invested a lot of money in relation to lands which have come to their possession pursuant to the implementation of the scheme. According to them, majority of the petitioners have received certificates of transfer granted to them and thus achieved the civil right which was suspended for 10 years between 1962 to 1972. They also claim to have made representation to the Chief Minister objecting to the prayer of respondent No. 5 for getting the scheme annulled and revoked.
6. Three counter affidavits have been filed on behalf of the respondents in C. W. J. C. No. 193 of 1975 one on behalf of respondent No. 5, another on behalf of respondents Nos. 1, 3 and 4 and the third on behalf of respondent No. 2. Respondent No. 5 in his counter affidavit has stated that the husband of petitioner No. 1, who is younger brother of respondent No. 5, was incharge of the affairs of respondent No. 5 during the relevant period and he misused the confidence reposed in him by respondent No. 5 and got clouded by misconduct and malfeasance the right, title and interest of respondent No. 5 over the extensive property situate within the area for which consolidation scheme was under preparation. In a title partition suit No. 87/7 of 1943/1945 which was instituted by respondent No 5 and husband of petitioner No. 1 against their father, by compromise separate takhtas were allotted to respondent No. 5, husband of petitioner No. 1 and to their mother and their father. After the death of their father his property was inherited by respondent No. 5, husband of petitioner No. 1 and their mother.
In the consolidation proceeding the husband of petitioner No. 1 got dishonestly recorded 29-63 acres of land in the name of petitioner No. 1, 34.41 acres of land in the name of petitioner No. 2 and 25.68 acres of land in the name of wife of respondent No. 5. Respondent No. 5 came to know of this fraud only after the consolidation proceeding was over and he filed an application before respondent No. 3 that lands, houses and orchard belonging to respondent No. 5 be recorded in his name. Respondent No. 5 in spite of the consolidation proceeding continues to be in possession of the lands including the house and garden etc. and a proceeding under Section 145 of the Code of Criminal Procedure is pending. On an application made by respondent No. 5 to the Commissioner of Patna Division, an enquiry was marie by the Additional Collector, Nalanda, who in his report (annexure A to the counter affidavit) recommended for annulling the entire scheme by resort to the powers vested in respondent No. 1 under Section 2 6 of the Act, However, after adverse orders were passed against respondent No. 5 by the Deputy Director Consolidation and the Additional Member, Board of Revenue, and his writ application before this Court (C. W. J. C. No. 190 of 1974) was summarily dismissed with an observation that respondent No. 5 could move the State Government for appropriate action under Section 26 of the Act to revoke the scheme. Respondent No. 5 did submit a representation before respondent No. 1 for annulling the scheme and respondent No, 1 declined to interfere on the ground that the scheme could not be annulled only to suit the convenience of an individual. But as it was without any enquiry by the competent authorities for ascertaining the extent of bunglings, forgery and alterations in the scheme by unscrupulous field staff, respondent No. 5 made a fresh representation before respondent No. 2 on 17th May, 1974. Respondent No. 2 did pass an order on this representation staying distribution of certificates of transfer but it was not on, account of any mala fides on the part of respondent No. 2 as there was no political affinity between respondent No. 5 and respondent No. 2. Some other tenants also had moved competent authorities for modification or annulment of the scheme on the ground of interpolations therein and after the representation of respondent No. 5 dated 17th of May, 1974 was subjected to detailed investigation at various levels and order for annulling the scheme was passed after considering the enquiry reports submitted by various officers including the Director of Consolidation, the Secretary of Revenue Department and the Land Reforms Commissioner. The order was passed not only to subserve larger interest of the tenants of the locality but also to make an example for the whole of the State so that similar situation might not be repeated elsewhere.
7. Respondent Nos. 1, 3 and 4 in their counter affidavit after stating relevant facts deny the allegation that the report of respondent No. 3 was collusive. It is averred that after the filing of the representation of respondent No. 5, the whole matter was examined afresh and decision to prepare a fresh scheme was taken. It is admitted that amendment of the Act in which it was proposed to delete Section 26 was under consideration but it is asserted that so long Section 26 was on the statute the power vested in the authorities under that section could be exercised.
8. Respondent No. 2 in his counter affidavit has denied that respondent No. 5 was his intimate friend and favourite. He has further stated that no doubt the matter was reopened on the petition of respondent No. 5 but the final decision was taken by respondent No. 1 after the whole matter was enquired into by officers at different levels which had revealed that large number of irregularities and interpolations had taken place during the course of preparation of the scheme of consolidation in the said village.
9. On behalf of the petitioners of C. W. J. C. No. 193 of 1975 a reply to the counter affidavit of respondent No. 5 has also been filed. The affidavit has been sworn in by the husband of petitioner No, 1 and ho strongly denies that he was incharge of the properties of respondent No. 5 during the relevant period. It is asserted that as respondent No. 5 misused his position and trust and put the petitioner and his family to suffer loss of property in pursuing frivolous litigation with regard to a will which respondent No. 5 had got forged, he (respondent No. 5) granted a raiyati interest in favour of the petitioners. It is also denied that respondent No. 5 had no knowledge of the consolidation proceeding till 1972.
It is stated that the ancestral bouse which was allotted to respondent No. 5, husband of petitioner No. 1 and their mother has not been recorded in the consolidation proceeding in the name of petitioner No. 1 as averred by respondent No. 5 but it is denied that there is any graden attached to it or it is surrounded by compound wall. It is further stated that the vague allegations made by respondent No. 5 of bunglings, interpolations, forgery and alterations in the scheme by unscrupulous field staff are not borne out by the records.
10. In C. W. J. C. No. 192 of 1975 a petition was filed on behalf of respondent No. 5 (respondent No. 4 in C. W. J. C. No. 193 of 1975) praying for an enquiry for finding out the facts about the filing of the case by those petitioners whose names were subsequently deleted from the application. In relation to that controversy some more applications, affidavits and counter affidavits were also filed. It is not necessary to state the averments in those petitions, affidavits and counter affidavits at this stage. Reference may be made to them if and when necessary. Two counter affidavits were filed one on behalf of respondent No. 5 (respondent No. 4 in the case) and another on behalf of respondents Nos. 1, 3 and 4; (Nos. 1, 2 and 3 in the case).
In his counter affidavit respondent No. 5 has almost reiterated what he has stated in his counter affidavit in the other case. He has also denied the allegation that after delivery of possession of the lands allotted to them under the scheme, the petitioners of this case have settled down and invested huge sums of money for the improvement of lands, namely, by sinking of tube-wells etc. and that they have built up their homes over the lands allotted, to look after their cultivation. Rather, it has been asserted that the tenants have not taken delivery of possession of their lands. Respondent Nos. 1, 3 and 4 in their counter affidavit also have reiterated what they have stated in their counter affidavit in C. W. J. C. No. 193 of 1975. However, it is admitted that petitioner Nos. 1, 3, 9, 10, 11, 16, 17, 18, 22, 23, 25 and 26 of C. W. J. C. No. 192 of 1975 have installed their tube wells on their lands after delivery of possession. It is denied that the tenants have constructed any residential building on the lands delivered to them but it is stated that some pucca sheds have been constructed by some of the petitioners to cover their tube-wells for protecting them from rains etc.
11. A reply to counter affidavits of the respondents has also been filed on behalf of the petitioners of C. W. J. C. No. 192 of 1975. It is not necessary to state the averments made therein in detail except that it has been reiterated therein that the tenants invested huge sums of money over the lands allotted to them under the scheme after taking delivery of possession thereof.
12. Some further supplementary affidavits have been filed in both the writ applications on behalf of respondent No. 5- A Supplementary affidavit has also been filed on behalf of the petitioners of C. W. J. C. No. 193 of 1975. A supplementary affidavit has also been filed on behalf of respondent No. 2 in C. W. J. C. 193 of 1975. I do not propose to state facts stated therein. They may also be referred to if and when necessary.
13. Additional grounds were filed in C. W. J. C. No. 192 of 1975 while the hearing of the cases was going on. These grounds challenge the vires of Section 26 of the Act mainly on the ground that it confers unguided and unbridled power on the State to vary and revoke a confirmed scheme.
14. The following points have been urged on behalf of the petitioners of G. W. J. C. No. 193 of 1975.
(i) Under Section 26 of the Act State could vary or revoke a scheme only where as a change of agrarian policy it decides that such change or variation is necessary; as in the instant case, no such decision has been taken by the State, the revocation of the scheme is illegal.
(ii) All irregularities including illegality and impropriety could be corrected by the Member, Board of Revenue if necessary by orders under Section 35 of the Act in view of delegation of power to him under Section 34 of the Act and the Act does not contemplate revocation of the scheme under Section 26 for correction of such irregularities, illegalities and improprieties.
(iii) The State Government having already rejected the petition of respondent No. 5, it could not reopen the matter again on a subsequent application as no power of review has been conferred upon it under the Act
(iv) The order of revocation of the scheme was illegal as respondent No. 2 did not apply his mind to the facts relevant for the purpose.
(v) An order as contained in Annexure 1 for starting a consolidation proceeding from the stage of Khanapuri without issuing a notification under Section 3 of the Act is illegal and fit to be quashed.
(vi) The scheme could not be revoked only in respect of four tolas of the village; if at all, it could be revoked for the entire village.
(vii) As the order of revocation was passed by respondent No. 2 mala fide, it was fit to be quashed.
15. Learned counsel appearing for the petitioners of C. W. J. C. No. 192 of 1975 supported the aforesaid grounds urged on behalf of petitioners of C. W. J. C. No. 193 of 1975. He also urged the following two points:
(i) The order of revocation was illegal inasmuch as it was passed without notice to the petitioners who were affected by it.
(ii) Section 26 of the Act itself being ultra vires as it confers unguided and unbridled powers on the State to vary and revoke a confirmed scheme, the order of revocation purported to have been passed under that section was illegal.
16. I propose to dispose of first the two points specially raised by learned counsel for the petitioners in C. W. J. C. No. 192 of 1975. In paragraph 21 of the writ application itself they have stated that they also represented to the Chief Minister that if the representation of respondent No. 5 for revoking and varying the scheme was allowed that would entail great harassment, prejudice and amount to unsettling twelve years’ efforts with all the igours of the Act which the petitioners had undergone and, therefore, the representation of respondent No, 5 may be rejected. The order cancelling and revoking the confirmed scheme in relation to the four tolas was passed after this representation of the petitioners had been filed. It could safely be presumed that that was considered before the order was passed. In the circumstances it is not open to the petitioners to say that they had no notice of the representation of respondent No. 5 for revoking the scheme and had no opportunity to place their case before the authorities. The order of revocation of the confirmed scheme in the circumstances cannot be quashed on the ground of want of notice to the petitioners and violation of principles of natural justice.
17. Section 26 of the Act reads as follows:
“A scheme for the consolidation of holdings confirmed under this Act may, at any time, be varied or revoked, by a subsequent scheme prepared published and confirmed in accordance with this Act.” This section read disjointly from other provisions of the Act undoubtedly appears conferring unbridled power on the State for varying or revoking a confirmed scheme without providing any guideline, but the Section itself makes it clear that a scheme already confirmed under the Act can be varied or revoked only by a subsequent scheme, prepared, published and confirmed in accordance with the Act. So the section envisages preparation of a fresh scheme according to the provisions of the Act for varying or revoking a scheme already confirmed. Now Section 3 (1) lays down.
“With the object of effecting consolidation of holding for the purpose of better cultivation of lands in any area, the State Government may, after such enquiries as it may deem fit, by notification in the official Gazette declare its intention to make a scheme before the consolidation of holdings in that area.”
It is obvious from this sub-section that a scheme can be prepared only with the object of effecting consolidation of holdings for the purpose of better cultivation of lands in any area. Preparation of a fresh scheme under Section 26 can also, therefore, be ordered only for the aforesaid object as mentioned in Section 3 (1) of the Act. It is, therefore, not correct to say that the Act does not provide any guideline for the purpose of ordering preparation of a fresh scheme under Section 26. Once such a scheme is prepared, published and confirmed in accordance with the Act, the scheme already confirmed early stands varied or revoked. It is not, therefore, correct to say that the State Government has been given unbridled power without any guideline for varying or revoking a scheme. The contention of learned counsel for the petitioners that section 26 of the Act is ultra vires on the aforesaid ground, in my opinion, is devoid of any substance and must be overruled.
18. After going through the petition for ordering enquiry and affidavits and counter affidavits filed in relation to the filing of the writ application by the petitioners whose names were subsequently deleted, I am convinced that whosoever was responsible for filing the writ petition did not come to this Court with clean hands. Undoubtedly, signatures of some of those persons who were made petitioners in the writ petition and were subsequently deleted were forged. Some of them were admittedly dead and, therefore, signatures of dead persons were also forged. Petitioners of such a case are not entitled to any sympathy from this Court specially in exercise of writ jurisdiction and the petition is fit to be rejected on this ground alone.
19. I now take up for consideration the points raised in C. W. J. C. No. 193 of 1975 which have also been adopted by the petitioners of C. W. J. C. No. 192 of 1975. So far as the first point is concerned, in my opinion, there is no substance in it. Section 26 of the Act has already been quoted earlier. There is nothing therein to indicate that a scheme already confirmed could be varied or revoked only where as a change of agrarian policy it is decided that such variation or revocation is necessary. It has already been pointed out that the guideline for varying or revoking a scheme under Section 26 is “better cultivation of lands in the area.” Better cultivation of lands in the area may be achieved even without any change in the agrarian policy of the Government. If the Government is satisfied that for the purpose of better cultivation of lands in the area a confirmed scheme should be varied or revoked, then on the language of Section 26 or any other provision of the Act it is not possible to hold that as there is no change in the agrarian policy of the Government the variation or re-vocation of the confirmed scheme is invalid.
20. For appreciating the second point, it is necessary to refer to Section 34 (1) and 35 of the Act. Section 34 (1) lays down that the State Government may, by notification in the official Gazette, delegate any of its powers or functions under this Act to any officer not below the rank of a Collector. Section 35 provides that 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.
There is a proviso to Section 35 which requires that no order shall be varied or reversed without affording the parties interested an opportunity of being heard. The power vested in the State Government under Section 35 has been delegated by it to the member, Board of Revenue. This position is admitted. But nothing has been placed before us to show that the power vested in the State Government under Section 26 of the Act has been delegated to anyone The powers under Sections 26 and 35 are quite different. Under Section 35 the State Government is authorised to call for records for satisfying itself as to legality or propriety of any order passed by an officer under this Act and thereafter to pass such orders as it thinks fit.
Section 26 speaks of varying or revoking a confirmed scheme. Varying or revoking a confirmed scheme is different from examinng the legality or propriety of any order passed by an officer under the Act and varying or reversing such an order. Of course, under Section 13 an order has to be passed by the Director of Consolidation for confirming the scheme and under Section 35 the legality or propriety of such an order may be examined by the Board of Revenue in exercis of the power delegated to it by the State Government. But in varying or revoking a scheme under Section 26, only the examination of the legality or propriety of the order of confirming the scheme is not involved. If an order under Section 13 of the Act is illegal or improper and that is set aside under Section 35, that will not involve making an altogether new scheme in part or as a whole. The Board of Revenue in such a case can only order for removal of the illegality or impropriety. But Section 26 contemplates variation or revocation of a scheme on much wider grounds, not on the ground of an illegality or an impropriety in any order passed under the Act.
Sections 35 and 26 obviously relate to different matters. Had not that been so and if all the powers which could be exercised under Section 26 can be exercised under Section 35 of the Act, then there would have been no necessity of enacting Section 26. For instance, in the instant case the scheme has not been revoked on account of any illegality or impropriety in any order passed under the Act. It has been revoked on the ground that there was widespread corruption among the field officers and even after the confirmation of the scheme there were fraudulent alterations in the records. These fraudulent alterations are not supported by any order of an officer. Therefore, they could not be corrected in exercise of powers under Section 35 on the ground of illegality or impropriety.
It is correct to say that power under Section 26 should not be utilised for correction of illegalities or improprieties in any order passed by an officer under the Act, but the order of revocation on the face of it does not show that it has been passed for correction of such illegalities or improprieties. Therefore, there does not appear any substance in the contention of learned counsel for the petitioners that wrong of the mature which is sought to be corrected by revocation of the scheme under Section 26 of the Act could be corrected by the Member, Board of Revenue, in exercise of powers under Section 35 of the Act delegated to him under Section 34 (1) of the Act.
21. Coming now to the third point raised on behalf of the petitioners, I find that the Act does not confer any power of review, but that does not mean that oace a prayer for varying or revoking a confirmed scheme has been refused, then a confirmed scheme caneot be varied or revoked thereafter. The use of the expression ‘at any time’ in Section 26 indicates that whenever the State Government considers it necessary to vary or revoke a scheme for the purposes of better cultivation of the lands in the area it may vary or revoke the scheme. No time limit has been or can be fixed for the purpose. In the circumstances prevailing few days earlier variation or/and revocation of the scheme may not be justified but it may be justified under the circumstances prevailing few days after.
Therefore, it will be against the spirit of the Act to lay down that once a prayer for variation or revocation is refused the matter cannot be re-opened again. Of coarse, it may not be desirable to order variation or revocation of scheme on the basis of same facts on which variation or revocation was prayed for and the prayer refused, but such an order will not be without jurisdiction. It would only be improper and a question may arise whether an order passed by the State Government under Section 26 of the Act for variation or revocation of a scheme, if it is improper, can be set aside by this Court in exercise of writ jurisdiction.
In the instant case, as ft appears from the order of respondent No. 2 in annexure 10 he did not vary or revoke the scheme on the basis of the facts on which the prayer was refused earlier. Of course, the two petitions of respondent No. 5, one which was rejected and the other on the basis of which the revocation has been ordered do not contain different sets of facts, but the order of variation or revocation passed by respondent No. 2 on the face of it shows that it was not made only on account of petition of respondent No. 5 dated 17th of May, 1974. The order was made after taking into consideration applications filed by other tenants as well as reports made by officers, whether the order of respondent No. 2 can be set aside on the ground that it was passed mala fide has to be examined separately, but I do not think on the facts and circumstances of the case, it can be held that the order is bad for absence of provision for review in the Act.
22. Point No. (iv) that respondent No. 2 did not apply his mind to the facts relevant for the purpose is allied to point No. (vii) that he passed the order mala fide, for, it has been contended that non-application of mind to the facts relevant for the purpose amounted to mala fide in law. This point may, therefore, be considered together with point No. (vii) raising the question of mala fide of respondent No. 2.
23. There is no substance in point No. (vi) that the scheme could, not be revoked only in respect of four tolas of the village if at all it could be revoked for the entire village. If the scheme could be varied with reference to four tolas and thereby other tolas of the village were not affected, then partial revocation only in respect of the four tolas could be made. There is nothing in Section 26 or any other provision of the Act to show that there could not be partial revocation. ‘Revocation’ includes partial revocation and the revocation only in respect of four tolas of the village cannot be held to be illegal on the ground that it is not in respect of the entire village.
24. Elaborate arguments have been advanced relating to point No. (vii), namely, that the order of revocation was passed by respondent No. 2 mala fide. In order to appreciate the respective contention of the parties relating to this point, it is necessary to refer to annexures 7 and 10 whch contain notings of Government officials and orders passed thereon by the Revenue and the Chief. Minister. It may be stated here that counsel for all the parties have freely referred to these notings and orders and no one has raised any objection to their being considered for deciding the question of mala fide. Annexure 7 contains notings and orders on the first application of respondent No. 5 for revocation of the scheme under Section 26 of the Act.
The sum and substance of the notings of the Special Secretary, Shri Ramakant Srivastava, dated 15th March, 1974 is that though in appropriate cases the State Government has power to order for a fresh consolidation, difficulties to an individual cannot be basis for that. By way of illustration he stated some circumstances which, according to him, could be basis for ordering fresh consolidation after revoking the earlier one. He further pointed out in his notes that respondent No. 5 could agitate the matter by filing a suit in the civil court and that if necessary opinion of the law Department might be obtained on the question. The “Chief Secretary while endorsing the file to the Revenue Minister pointed out that as Additional Member, Board of Revenue, he had given his opinion in the matter on any application under Section 35 of the Act and that may be seen. The then Revenue Minister, Shri Lahtan Choudhary, in his minutes dated 17th of March, 1974 also took the view that it would not be proper to revoke the whole scheme for an individual who had not filed necessary applications before the appropriate officers at proper time. That person may go if he so liked to the Civil Court for redress of his personal grievances. He further observed that after the Chief Minister saw the file, opinion of the Law Department might also be obtained. The Chief Minister put his signature below the signature of the Revenue Minister on 29th of March, 1974 thereby endorsing the views of the Revenue Minister. The file was then sent to the Law Department and the opinion given by the Department was that the view taken by the Revenue Minister was correct.
25. It appears that thereafter the file was not again placed before the Revenue Minister or the Chief Minister until respondent No. 5 filed another application (Annexlire 8 to C. W. J. C. 193 of 1975) on 17th May, 1974 before respondent No. 2, Shri Kedar Pandey. who had already taken over as Revenue Minister on 30th of April, 1974. Two rejoinders were filed to the said application of respondent No. 5 on behalf of petitioner No. 1, Chandrawati Devi. The first one (annexure 9) was addressed to the Chief Minister and the second one (annexure 9/A) was addressed to the Revenue Minister. On 20th of May, 1974, the Revenue Minister passed an order of stay on the said petition of respondent No. 5. The notings, as it appears from annexure 10, relating to the petition of respondent No. 5 dated 17th of May, 1974 started from 31st of May, 1974.
Shri Thakurdas Mehta Director of Consolidation, respondent No. 4, in his notes stated that the Revenue Minister had ordered that the file may be placed before him and action in that connection may be stayed in the meantime. He thereafter stated about the orders passed on the earlier petition of respondent No. 5 and the fact that the opinion of the law Department was also obtained. He also noted that respondent No. 5 had been informed of this. It is, however, not in dispute that the information was given to respondent No. 5 by a letter dated 28th May, 1974 after the order for stay had already been passed by respondent No. 2 on 20th of May, 1974. The Special Secretary, Shri R. K. Srivastava, endorsed this note of Shri Mehta on 1st of June, 1974. The file was placed before respondent No. 2 on 10th of June, 1974 and he ordered for a discussion on 17th of June, 1974 at 4 P. M. After discussion the Secretary noted on 19th June, 1974 that the Revenue Minister wanted that the report of Additional District Magistrate and records of consolidation be called for and if on examining them, it appeared that in the consolidation scheme there had been 30 to 40 per cent mistakes the State Government may consider the question of having a new scheme.
Shri Mehta again reiterated his earlier view in his notes dated 3rd of July, 1974. Shri B. B. Verma, Additional Secretary in his notes addressed to the Land Reforms Commissioner on 3rd of July, 1974 after referring to the earlier notes and orders opined that on the application of respondent No. 5 the distribution of certificates of transfer should not be stayed but if on examination of the records it appeared that in the records of consolidation there were 30 to 40 per cent mistakes, then the matter may be re-opened. He also suggested that respondent No. 4 be asked to enquire himself into the matter in detail and submit his report within a month and further action should be taken only after receipt of his report. The Chief Secretary endorsed the notes of the Additional Secretary to the Revenue Minister. Respondent No. 2 thereafter ordered for a discussion with the Land Reforms Commissioner.
26. After holding discussions, respondent No. 2 passed the following orders on 20th of July, 1974:–
^^vk;qDr
ls ckrsa gqbZ A bl ekeyks esa ml oDr os ¼,Mhlu esEcj cksMZ vkWQ jsosU;q½ Hkh
Fks A
,slh
gkykr esa viuh dksbZ nqljk jk; nsus esa vleFkZrk izxV dh A bl ekeys esa eSus
fo’ks”k lfpo ,oa funsZ’kd ls Hkh i`f”V 14@fV-
ijh ckrs dh Fkh A
iqu% ;kfpdk
esa Jh- ts- ds- ih- flag ,oa Jh jke fd’kksj izz- ukjk;.k flag ds o;fDrxr ekeys
dks gh ckr mBkbZ gqbZ gS A foHkkx dks i`f”V 14@fV-
ds foe”kZ ds vkyksd esa dkjZokbZ djuh pkfg;s Fkh A
iz’u Jh
ts- ds ih- ,u- flag ,oa muds HkkbZ ds O;fDrxr ekeys dk ugha gS ijarq /keZiqj
xzke esa dh xbZ pdcanh dk;Z ds laca/k esa dh gS A bl laca/k esa cgqr iqoZ esa gh
vkosnu foHkkx esa fn;s x;s Fks fd mDr xzke esa pdcanh dk;Z esa xM+cM+h gqbZ A
bldh tkap Hkh vij lekgrkZ ukyank }kjk djkbZ xbZ Fkh A vij lekgrkZ ukyank us vius
i=kad 284 vkj
fnukad 24@4@74 ds
}kjk viuk izfrosnu fn;k Fkk ftldk ftØ i` 14@fV- ds
foe’kZ ij gS A ;g izrhr gksrk gS fd mDr izfrosnu ij foHkkx us dksbZ djokbZ ugha
dh A i`”V 14@fV- dh fVIi.kh ds ckotwn Hkh dsoy
O;fDrxr ekeys dh gh ppkZ dh xbZ gS A
geus vij
lekgrkZ ds izfrosnu dks ns[kk gS A mlls Li”V gS fd mDr xzke ds pdcanh dk;Z
esa vfu;ferrk cjrh xbZ gS A vij lekgrkZ ds izfrosnu ds i`”V 4 ls izrhr
gksrk gSa fd ml le; rd dh xbZ tkap ds vuqlkj 96 ekeys esa vfu;ferrk gqbZ gS A
vij lekgrkZ us viuh tkap esa vfu;ferrk dks Bhd ik;k gS A ;g laHko gS fd blds
vykos vkSj Hkh ekeys gks ftlesa tkap ugha gqbZ gks A
pdcanh
inkf/kdkjh ,daxj ljk; dh izfrosnu ftls mUgkssasus vius i=kad 158 fnukad 28@5@73
ds }kjk funsZ’kd pdcanh dks Hkstk Fkk fopkj djus ds ;ksX; gSa] vius i`”V 4@fV-
esa mUgksaus dgk gS fd /keZiqj xzke esa gqbZ vfu;ferrk ds dkj.k ogka turk dk
fo’okl mB x;k gS A pdcanh inkf/kdkjh us flQkfj’k dh Fkh fd /keZiqj xzke esa
pdcanh dh ubZ ;kstuk cuuh pkfg;s tSlk vU; xzkeks esa funsZ’kd ds vkns’k ds iqoZ
esa gqvk gS A
gekjs
fopkj esa ;fn pdcanh inkf/kdkjh ,oa vij lekgrkZ ds izfrosnu ij foHkkx esa le; ij
dkjZokbZ dh xbZ gksrh rks pdcanh dk;Z ds fy;s ;g ykHknk;d gksrk A bu izfrosnuksa
ls eSaa fu”d”kZ ij igqapk gwa fd okLro eaa /keZiqj xzke esa pdcanh
dk;Z esa cgqr vfu;ferrk cjrh xbZ gS vkSj ogka ds yksxksa dks U;k; nsusds fy;s
mfpr gS fd ogka pdcanh dk;Z fQj ls fd;k tk; A jkT; dh turk vkSj fo’ks”k :i
ls /keZiqj xzke dh turk dks pdcanh dk;Z esa iqu% vkLFkk dk;e j[kus ds fy;s ;g
vko’;d gS fd /keZiqj xzke esa pdcanh dk;Z iqu% gks ftlls lHkh vfu;ferrk dks
lekIr fd;k tk ldsa A
ijarq
foHkkx ls le; ij bl vksj /;ku ugha nsus ds dkj.k cgqr foyac gks x;k gS A dksbZ
vkns’k nsus ds iqoZ esa fo/kh ijke’kZ dh jk; tkuuk pkfg;s fd of.kZr ifjfLFkfr
esa fcgkj pdcanh dh /kkjk 26 ds varxZr xzke /keZiqj Fkkuk ,daxj ljk; ftyk ukyank
eas u;s fljs ls pdcanh dk;Z djkus dh ;kstuk cukus dk vkns’k ikfjr fd;k tk ldrk
gS ;k ugha A
27. The matter was then sent to the Law Department and the Law Secretary gave the following opinion:–
“Law Deptt. can advise on the facts submitted in the file. On the basis of facts noted at page 5-7 in Law Deptt. at page 8/N agreed with the minutes of the then Minister Revenue at page 7/N that it is not desirable to revoke the confirmed scheme and to prepare a fresh scheme for the benefit of a single person.
2. Section 26 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 is quoted below for ready ref.
‘Power to vary or revoke scheme;
Scheme for the consolidation of holdings confirmed under this Act may at any time be revoked, varied or revoked by a subsequent scheme prepared, published and confirmed in accordance with this Act.’
3. In the minutes at page 20-21/N Minister Revenue has pointed out that there are 96 irregularities in consolidation work in village Dharampur and in case it is found that those irregularities have not been cured yet because there are difficulties in curing them then there may be a justification to prepare a subsequent fresh scheme.
4. It is for the administrative Deptt. to enquire and ascertain the real facts and in case it is found that a fresh scheme is not proposed to be done for a single individual but it is proposed to meet and cure numerous irregularities which would not be cured and in spite of attempts even now, they cannot be cured, then there can be no legal objection in preparing a fresh scheme under Section 26 of the Act”
Thereafter on 22nd of August, 1974, respondent No. 2 recorded his opinion that he would like that respondent No. 4 should himself enquire into the matter whether the mistakes as pointed out in the report of the Additional Collector, Nalanda, have been corrected or not and submit his report within a week. Respondent No. 4 thereafter reported that in view of Section 25 of the Act there could be no legal difficulty in correcting the irregularities in the consolidation proceedings. The Chief Secretary in his notes dated 21st of September, 1974, pointed out that there were 724 raiyats in village Barakhurd but there were irregularities only in case of 74. The mistakes in 20 cases had already been corrected. Therefore, in his opinion there was no justification for revoking the entire consolidation scheme. According to him, the mistakes in the remaining 54 cases could be corrected in the same way as they had been corrected in 20 cases. He also pointed out certain defects in the report of respondent No. 4 and according to him, respondent No. 4 had not gone deep into the matter.
28. When the file was placed before respondent No. 2 on 1st of October, 1974, he recorded the following minutes which were addressed to the Chief Minister:–
^bl
lafpdk esa ukynk ftys ds uqj ljk; vapy ds ckjk [kqnZ xzke ds /keZiqj Vksys esa
pdcanh dk;Z esa gqbZ vfu;ferrkvksa ds laca/k esa gks jgk gS A bl laca/k esa
i`”V 20&20@fV- ij esjh fVIi.kh ls
fo”k; Li”V gksxk A fof/k ijke’khZ dh jk; i`”V 21&22@fV-
ij gS A
vij
lekgrkZ ds izfrosnu ls Li”V gS fd ckjk[kqnZ xzke ds /keZiqj Vksys esa
izfrfu;qfDr vehu us cgqr vfu;ferrk;sa dh Fkh A vij lekgrkZ ds izfrosnu ds vuqlkj
ml le; rd 96 ekeys esa vfu;ferrk ik;h x;h Fkh A lacaf/kr tehu ds fo:) vkjksi ds
ckotwn tSlk fd vij lekgrkZ ds izfrosnu ls izrhr gksrk gS Bhd rjg ls dk;Zokgh
ugha gqbZ lkFk gh bu vfu;ferrkvksa dks lq/kkjus ds laca/k esa larks”kizn
dk;Zokgh ugh dh xbZ A bl laca/k esa Hkqfe lq/kkj vk;qDr dh jk; ls eS lger gwa fd
blds fy;s pdcanh inkf/kdkjh ,oa mi funsZ’kd nks”kh gSa A
uwj ljk;
vapy ds ckjk[kqnZ xzke ds /keZiqj Vksys esa yxHkx 280 jS;r gS ftlesa 96 ekeyks
esa ?kksj vfu;ferrk;sa gq;h gSa A bu vfu;ferrkvksa esa vcrd flQZ 20 ekeyksa esa
gh lq/kkj fd;s x;s gSa A jkT; esa pdcanh dk;ZØe esa Hkz”Vkpkj ,oa
vfu;ferrkvksa ds laca/k esa cgqr f’kdk;rs vk jgh gS ,oa fo/kku lHkk esa Hkh ppkZ
gksrh jgh gS A bl fo’ks”k ekeys esa mDr vehu }kjk dh x;h vfu;ferrkvksa
Hkz”Vkpkj dk uewuk gS A foHkkxh; inkf/kdkjfj;ksa }kjk fn;s x;s fopkj ls
eSaa lger ugha gwa fd pdcanh vf/kfu;e dh /kkjk 20 ds varxZr bu vfu;ferrkvksa dk
lq/kkj gks ldsxk A Hkqfe lq/kkj dh fn’kk eas pdcanh dk;Z cgqr gh vko’;d gS A vr%
bl rjg dh xaHkhj vfu;ferrkvksa ds fy;s pqi jguk mfpr ugha gS D;ksafd pdcanh eas
vke turk dk fo’okl ekuk vko’;d gS A
vr% eSa
pkgwaxk fd uwj ljk; vapy ds ckjk[kqnZ xzke ds Vksys esa pdcanh vf/kfu;e dh /kkjk
26 ds vuqlkj u;h ;kstuk cukdj iqu% dk;Zokgh dh tk; ftlls ogka ,oa jkT; dh turk
esa
pdcanh dk;ZØe ds izfrfo’okl lqn`<+ gks A ;g
igyk mnkgj.k gS fd /kkjk 26 ds vuqlkj dk;Zokgh dh tk jgh gS A u;h ;kstuk
ojh"V inkf/kdkjh dh ns[kjs[k esa dk;kZfUor gksuh pkfg;s A**
On 4th of October, 1974, the Chief Minister recorded the following minutes:–
“The Law Deptt, had given a conditional advice that is:–
‘In case it is found that a fresh scheme is not proposed to be done for a single individual but it is proposed to meet to cure numerous irregularities which could not be cured and in spite of attempts even now, they cannot” be cured then there can be no legal objection in preparing a fresh scheme under Section 26 of the Act.’
In the light of this legal advice the Director has since reported that irregularities were committed in 191 out of 4785 holdings and that out of the said 191 holdings, correction has already been made in respect of 49 holdings. The Director has further stated that correction can be made in respect of the remain ing 142 holdings also under Section 11 (5) of the relevant Act read with Rule 20. The Law Deptt. should see this report of the Director and advise whether correction in respect of the remaining holdings can be done even now under the provision mentioned by the Director? If it is so then recourse should be taken to this procedure instead of revoking the entire scheme. If, however, the mistakes and irregularities cannot be rectified by this procedure there would be no option left but to revoke the whole scheme even though it would mean obliterating the labour of 12 years.”
29. On 16th of October, 1974, respondent No. 2 again ordered for discussion on 17th October, 1974 at 12.30 P. M. Thereafter on 22nd of October, 1974 respondent No. 2 passed the following orders:–
^^d`i;k 102&108 i`- ns[kk tk;
A funsZ’kd pdcanh dh fVIi.kh ls izfrr gksrk gS fd bl Vksys dh iqu% pdcanh djus
esa djhc 70 gtkj :i;s [kpZ gksaxs A vkSj djhc Ms<+ o"kZ le; yxsxk A blls
de le; djs bldk Hkh iz;kl fd;k tk ldrk gS A
esjh jk;
esa bls Lohdkj djuk pkfg;s rkfd ges’kk ds fy;s ,d mnkgj.k ;g cu tk; A
esjh
fVIi.kh i`- 28@fV- ij d`i;k ns[kh tk; A**
Respondent No. 2 suggested for revoking of the scheme and ordering for a fresh scheme. The Chief Minister endorsed this on 1st of December, 1974. The aforesaid order of respondent No. 2 was for revoking the scheme only for tola Dharampur, but on further consideration as evidenced by annexure 10/A it was decided to revoke the scheme and order for a fresh scheme in respect of three other tolas as well.
30. The respective cases of the parties as stated in the writ application, counter-affidavits and reply to counter-affidavits on the question of friendship and intimacy between respondent No. 5 and respondent No. 2 has already been noticed while stating the facts of the case. On the materials on the record it is not possible to hold that respondent No. 2 and respondent No. 5 were very intimate and such friends as to make respondent No. 2 go out of his way for helping respondent No. 5. Respondent No. 2, as already stated, in his counter-affidavit has denied intimate friendship between him and respondent No. 5 and has admitted that they were only known to each other. It is, therefore, not possible to hold that respondent No. 2 acted mala fide and helped respondent No. 5 on account of his intimate friendship with him.
31. It has, however, been contended on behalf of the petitioners that the notings referred to above themselves show that respondent No. 2 went out of his way in helping respondent No. 5 and even if it was not established that the two were intimate friends, the conduct of respondent No. 2 in revoking the scheme and ordering for a fresh scheme without materials justifying it shows that he acted mala fide. Much emphasis has been laid in this connection as to the percentage of mistakes in the consolidation records relating to the village and it has been pointed out that though the percentage was much less than 30 to 40 per cent, even then the old scheme was revoked and preparation of a fresh scheme was ordered.
It has also been submitted that the opinion of the Law Department was not obtained as desired by the Chief Minister in his minutes dated 4th October, 1974. The Chief Minister in his minutes dated 4th of October, 1974 wanted to know the opinion of the Law Department as to whether the mistakes could be rectified in the manner suggested by respondent No. 4. The mistakes, as already noticed, were interpolations in the records in good number of cases after confirmation of the scheme. As observed earlier, these interpolations which were made surreptitiously and not by an order of any officer could not be corrected under Section 35 of the Act. Respondent No. 4 in his notes stated that in his opinion the mistakes could be rectified by adjusting payment of compensation and referred to section 25 of the Act in that connection.
In the minutes of the Chief Minister dated 4th October, 1974, it has been stated that according to respondent No. 4, the mistakes could be corrected under Section 11 (5) of the Act read with Rule 20. Section 11 provides for preparation of a draft scheme and nothing can be done under that section after the scheme has been confirmed. Rule 20 deals with payment of compensation and the manner in which it is to be deposited under Section 19. I for myself do not see how the interpolations could be corrected by payment of compensation under Section 25 of the Act or Rule 20 of the Bihar Consolidation of Holding Rules, 1958. In my opinion, even the damage done to particular raiyats by interpolations in the consolidation records after confirmation could not be compensated by adjustments in the payment of compensation. It, therefore, can easily be assumed that the opinion of the Law Department would not have gone against the view taken by respondent No. 2 as it appears from annexure 10, respondent No. 2 ordered for revocation of the scheme and preparation of a fresh scheme on the ground that there were interpolations in good number of cases on account of corruption in the field staff and in such cases preparation of a fresh scheme should be ordered for setting an example.
It cannot be said that the view taken by respondent No. 2 was such which could not be taken by a reasonable man. Simply because the Secretaries or others had taken another view it cannot be held that the order passed by respondent No. 2 which was endorsed by the Chief Minister was mala fide specially when on the materials on the record it is not found possible to hold that respondent No. 2 helped respondent No. 5 on account of intimate friendship between the two. The fact that the percentage of mistakes in the revenue records was not 30 to 40 percent is by itself not enough to hold that order passed by respondent No. 2 was mala fide. If the mistakes relating to tola Dharampur were alone to be taken into consideration the percentage of such mistakes, according to respondent No. 2, was much higher.
32. Reliance was placed by learned counsel for the petitioners on the decision of the Supreme Court in S. Partap Singh v. State of Punjab (AIR 1964 SC 72). The facts of that case were quite different and in the circumstances of the case before us it cannot be held that the order passed by respondent No. 2 was mala fide. It is well established that it is for the person who alleges mala fide in the authorities to prove it. In
province of Bombay v. Kushaldas S. Advani (AIR 1950 SC 222) it was observed–
“The point is that it lies heavily on the person who challenges the bona fides of a public authority or who contends that the authority had acted outside its powers to establish his case on cogent legal evidence. He cannot succeed by leaving the matter in the air and to the ingenuity of his counsel in creating an atmosphere of mere suspicion, which falls far short of legal proof.”
The law on the subject as to what is mala fide justifying judicial review of administrative action was fully discussed by Untwalia, J. (as he then was) in the case of N.P. Mathur v. State of Bihar (AIR 1972 Pat 93) (FB). Applying those tests I do not think that the petitioners in these cases have been able to establish that the order for revocation of the scheme and preparation of a fresh scheme passed by respondent No. 2 was mala fide.
33. It may be that another person may have taken a different view and, as it was respondent No. 5 who was mainly responsible for bringing to the notice of the authorities the interpolations in the consolidation records after the scheme was confirmed and large scale corruption in the field staff and as on his earlier application it had been ordered that the matter should not be re-opened on the basis of the grievances of an individual and respondent No. 5 may file a civil suit for the redress of his grievances if he so liked, may not have ordered for revocation of the old scheme and preparation of a new one. But as held earlier, in absence of any mala fides on the part of respondent No. 2 and any legal difficulty in passing the aforesaid order which does not appear to have been passed on irrelevant considerations by taking a view which could not be taken by a reasonable man, this court in exercise of writ jurisdiction cannot interfere with the order even if it agreed with the contention of learned counsel for the petitioners that the other view could also possibly be taken. While exercising writ jurisdiction this Court has to exercise restraint on its temptation to act as a court of appeal and quash an order of Minister on such a ground.
34. The only point which now remains to be discussed in point No. (v) that an order as contained in annexure 1 for starting a consolidation proceeding from the stage of Khanapuri without issuing a notification under Section 3 of the Act is illegal and fit to be quashed. As it appears from the notes (annexure 10/A) of the Deputy Director of Consolidation, of Holdings addressed to respondent No. 4 it has been suggested therein that in preparing a new scheme steps should be taken for preparation of up-to-date records-of-right before consolidation in accordance with the provisions of Section 8 of the Act. The aforesaid contention appears to have been advanced on the basis of this suggestion and I am of the opinion that there is force in the contention that if a fresh scheme is to be prepared before taking steps under Section 8 of the Act a fresh notification under Section 3 should be issued and fresh village Advisory Committee should be constituted under Section 7 of the Act.
It may however, be stated here that Mr. Shreenath Singh who gave reply on behalf of the petitioners also suggested that in preparing a new scheme it may not be necessary to undo all what has been done under Sections 8, 9 and 10 of the Act and the authorities may start with the preparation of a draft scheme as envisaged by Section 11 of the Act. In this connection Mr. Singh submitted that the scheme which has been confirmed is not killed in praesenti, but valid until a new scheme is prepared. There appears substance in this contention that a scheme confirmed remains valid until it is varied or revoked by a subsequent scheme prepared, published and confirmed in accordance with the Act. That is manifest from the language of Section 26 itself. Therefore, so long a new scheme is not confirmed the scheme which has already been confirmed shall remain valid. But that will not justify, while preparing a new scheme, to start from the stage of the preparation of a draft scheme. Section 3 (1) of the Act has already been quoted earlier. Section 3 (2) reads as follows:–
“(2) The substance of the notification shall be announced by beat of drum in the village comprised in the notified area and copies of the notification shall be hung up at the offices at all the Gram Panchayats, if any, the police-stations, the offices of the Anchal Adhikaris and the village cutcherries of the State Government for collection of rent in such area.”
No doubt, Sub-section (1) of it says that the State Government may, after such enquiries as it may deem fit by notification in the official gazette declare its intention to make a scheme for the consolidation of holdings. But, in my opinion, the word ‘may’ (after the expression “State Government”) means ‘shall’ and it is imperative on the State Government to issue a notification in the official gazette declaring its intention to make a scheme. The expression ‘may’ has been used for giving a discretion for the State Government to decide whether a scheme for consolidation of holding should be made or not in a particular area, but once it is decided that a ‘Scheme should be made for a particular area, then a declaration in the official gazette of the State’s intention must be notified.
Certain consequences as mentioned in Sections 4, 5 and 6 of the Act follow from the said notification and if a notification is not made, suits or legal proceedings may be instituted in respect of the lands in such area and the lands may be transferred without sanction leading to complications and hindrance in the preparation of the scheme. As soon as the earlier scheme was confirmed the notification issued under Section 3 by respondent No. 1 for that scheme lost its force and on the basis of that notification preparation of a fresh scheme cannot be made nor persons holding lands in the area be restrained from instituting suits or legal proceedings or transferring their lands without sanction. In my opinion, therefore, once the State Government has decided to get a fresh scheme prepared for the aforesaid four tolas of village Barakhurd, it must get published a notification in the official gazette of the State’s intention before taking any other action in connection with preparation of the scheme.
35. In the result, the prayer of the petitioners for quashing the order of respondent No. 2 for revocation of the old scheme and preparation of a new scheme in respect of the lands of the aforesaid four tolas of village Barakhurd is refused. As distribution and grant of certificates of transfer may lead to complications in preparation of the new scheme which has been decided upon by respondent No. 1, the prayer of the petitioners for quashing the order of respondent No. 1 staying the distribution and grant of certificates of transfer is also refused. However, let a direction issue to respondents 1, 3 and 4 that before taking any action in connection with the preparation of a fresh scheme a fresh notification under Section 3 of the Act should issue and the direction of respondent No. 4 for commencing de novo proceedings under the Act from the stage of Khanapuri only should be modified.
It is made clear to avoid any confusion that in view of the allegations of wide-spread corruption in the field staff it may be open to the authorities in the preparation of the new scheme to ignore the records prepared under the scheme going to be revoked by the new scheme and act on the earlier records. If I had to deal only with C. W. J. C. No. 192 of 1975, for reasons stated earlier, I would have dismissed it outright, but in view of the fact that both the writ applications are inter-connected and a direction is being issued for modification of the order of respondent No. 4 in the other case, C. W. J. C. No. 193 of 1975, it has been thought desirable that the same direction should issue in C. W. J. C. No. 192 of 1975 as well. In the circumstances of the case, there shall be no order as to costs.
S. Ali Ahmad, J.
I agree.
