1. Heard Shri K. Bhuyan, learned counsel for the petitioner. Also heard Shri N. Das, learned State Counsel for the State respondents as well as Ms. G. Hazarika, the learned Standing Counsel, Revenue Department.

2. An order dated 07.10.2024 passed by the Addl. District Commissioner, Barpeta in RA Case No. 02/2022-23 is the subject matter of challenge in this writ petition. By the said order, the application filed by the respondent nos. 5 - 7 for cancellation of name of the father of the petitioner in the mutation has been allowed.

3. At the outset, it has been noted that the private respondent nos. 5, 6 & 7 have been served and they have chosen not to appear and contest.

4. As per the facts projected, the private respondent nos. 5 to 7 had submitted an application on 10.01.2022 for correction of land records. However, instead of treating the same as an application, the same was treated as an appeal and decided by the Addl. District Commissioner, Barpeta under Regulation 147 of the Assam Land and Revenue Regulation Act, 1886 read with Regulation 151.

5. Before going to the merits of the impugned order, the learned counsel has submitted that such application could not have been treated as an appeal. He has drawn the attention of this Court to the aforesaid Regulation 147 which lays down the authority to whom appeal lies. He has submitted that the application for correction of land records is not an appeal and therefore there is an error of jurisdiction. On the merits of the case, the learned counsel for the petitioner has submitted that the findings arrived at are erroneous and perverse which require interference of this Court.

6. Per contra, Shri Das, the learned State Counsel has submitted at the outset that the writ petition is not maintainable in view of the fact that the Regulation itself provides for preferring an appeal against such an order. In this connection, he has drawn the attention of the Regulation 147 of the Regulations of 1886. By refuting the submissions that there is an error of jurisdiction, the learned State Counsel has submitted that mere wrong quoting of a provision of law would not make a material difference to an order if the same is otherwise valid. He submits that the order has taken into consideration all the relevant factors and from the materials available, a suspicion arises on the nature of the entry of the name of the father of the petitioner in the Chitha, which was accordingly rectified. He accordingly submits that the writ petition be dismissed.

7. The rival submissions advanced have been duly considered and the materials placed before this Court have been duly examined.

8. The first ground canvassed on behalf of the petitioner is on the aspect that the application dated 10.01.2022 could not have been treated to be an appeal under Regulation 147. The aforesaid Regulation reads as follows:

                   “147. Appeals shall lie under this Regulation as follows:—

                   (a) To the Board from orders, original or appellate passed by a Deputy Commissioner Settlement officer or Survey officer;

                   (b) To the Deputy Commissioner, from orders passed by a Sub divisional Officer, an Assistant Commissioner or Extra Assistant Commissioner;

                   (c) To the Settlement Officer, from orders passed by an Assistant Settlement Officer;

                   (d) To a Survey Officer, from orders passed by an Assistant Survey Officer: Provided that no appeal shall lie against the following orders:—

                   (i) Orders of an Assistant Settlement Officer or Assistant Survey Officer under section 21 and 22;

                   (ii) Orders of a Survey Officer or Settlement Officer;

                   (1) Under Section 21, 22, and 24;

                   (2) Apportioning the expense of erecting and repairing boundary-marks in accordance with rules made under section 27;

                   (iii) Orders of a Survey Officer, Settlement Officer or Deputy Commissioner, original or appellate imposing or confirming a fine not exceeding fifty rupees;

                   (iv) Orders of a Deputy Commissioner under section 79 setting aside or refusing to set aside the sale;

                   (v) Any decision given in accordance with an award of arbitrators appointed under section 143, except in the case of fraud or collusion;

                   (vi) Orders under section 148, admitting an appeal after the period of limitation has expired;

                   (vii) Orders expressly declared by this Regulation to be final subject to the provision of section 151.”

9. It may also be noted that Regulation 148 deals with the aspect of limitation for preferring such appeal and there is also a provision for condonation of delay.

10. Though factually the contention appears to be correct, it is trite that wrong quoting of a provision of law would not per se make the order bad in law if otherwise the order is sustainable. In this connection, it would be gainful to refer the case of N. Mani Vs Sangeetha Theatre reported in (2004) 12 SCC 278 wherein the following observations were made:

                   “9. it is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law.”

11. In a subsequent decision of the Hon’ble Supreme Court in the case of P. K. Palanisamy Vs N. Arumugham reported in (2009) 9 SCC 173, the following observations were made:

                   “13. A contention has been raised that the applications filed by the appellant herein having regard to the decisions of the Madras High Court could not have been entertained which were filed under Section 148 of the Code. Section 148 of the Code is a general provision and Section 149 thereof is special. The first application should have been filed in terms of Section 149 of the code. Once the court granted time for payment of deficit court fee within the period specified therefor, it would have been possible to extend the same by the court in exercise of its power under Section 148 of the Code. Only because a wrong provision was mentioned by the appellant, the same, in our opinion, by itself would not be a ground to hold that the application was not maintainable or that the order passed thereon would be a nullity.

                   It is a well settled principle of law that mentioning of a wrong provision or nonmentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefor.”

12. On the other grounds of challenge of the impugned order, this Court is of the opinion that since the Regulation itself provides for an appeal, if any views are expressed by this Court on the merits of the challenge, it might cause prejudice to either of the parties. This Court is also of the view that the jurisdiction exercised under Article 226 of the Constitution of India is only to oversee as to whether the relevant factors have been taken into consideration or as to whether the impugned action is based on irrelevant and extraneous consideration. The issue of jurisdiction of the authority passing the order can also be raised.

13. This Court is of the view that since Regulation 147 provides for preferring an appeal against the impugned order, instead of expressing any opinion on merits, the petitioner be relegated to have his grievance redressed by preferring an appeal. The writ petition is accordingly closed by giving liberty to petitioner to prefer such appeal. Since limitation has been prescribed for preferring such appeal under Regulation 148, such appeal may be preferred accompanied by an application for condonation of delay which may be considered by the learned Appellate Authority reasonably and in accordance with law.

14. At this stage, Shri Bhuyan, the learned counsel for the petitioner has also submitted that liberty may be given to institute as the aspect of fraud has also been raised. This Court is of the view that, if the law so permits, civil suit can also be filed.

15. With the aforesaid observations, the writ petition accordingly stands closed.