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1979 DIGILAW 22 (PAT)

Shyama Nand Prasad v. State of Bihar

1979-01-22

HARI LAL AGRAWAL, MISHRA

body1979
JUDGMENT VISHWANATH MISHRA, J. 1. The petitioner has invoked the writ jurisdiction of the court for quashing Annexure 1, 2, and 3 of the writ petition which are the orders of different authorities, under the Bihar Land Reforms (Fixation of Ceiling Area Acquisition of Surplus Land) Act, 1961 (hereinafter referred as "the Act") relating to the petitioner's unit. 2. Thakur Hari Kishore Pd. Singh was the father of Smt. Tara Devi. The petitioner Shyam Nand Pd. and his brother Tara Nand Pd. are the sons of Tara Devi. Thakur Hari Kishore Pd. Singh was the Ghatwal of Garasare Estate in Deoghar sub division of Santhal Parganas. He had no son. As the case is he made family arrangement round about the year 1947 in which be settled some lands with the petitioner and perhaps also with his brother and mother. The case of the petitioner here is that 39.00 acres of land situated in village Raghusdih, police station Palajori within the sub–division of Deoghar were settled with him in 1947 and since then he was paying rent. Respondent No. 3, the Additional Collector of Santhal Parganas gave him a notice for determination of the ceiling area of the land to be held by him and accordingly Land Ceiling case no.333 of 1973-74 was started against him. That case was sent to the Deputy Collector Land Reforms, Deoghar for disposal. A draft statement under section 10 (1) of the Act, was prepared in which he was allowed to retain 33 acres of land and 6.06 acres of land was shown as surplus. The petitioner filed objection under section 10(3) of the Act, claiming the said 6.06 acres of land as tank and bandh, but that objection was rejected by the Deputy Collector Land Reforms on 25.11.1975 (vide Annexure 1/B to the writ petition). The petitioner preferred a Land Ceiling Appeal No.66 of 1975-76 against the order of the Land Reforms Deputy Collector before the Additional Collector, Dumka, but that was summarily dismissed on the ground of limitation. The petitioner then moved the Board of Revenue under section 32 of the Act, wherein he succeeded in getting the appeal remanded to the Additional Collector for disposal on merits. The Additional Collector heard the appeal and dismissed the same on merit also on 28.8.1976 through an order contained in Annexure 2 to the writ petition. The petitioner then moved the Board of Revenue under section 32 of the Act, wherein he succeeded in getting the appeal remanded to the Additional Collector for disposal on merits. The Additional Collector heard the appeal and dismissed the same on merit also on 28.8.1976 through an order contained in Annexure 2 to the writ petition. Thereafter the petitioner filed a revision before the Board of Revenue which was registered as Board case no. 1604 of 1976. That also was dismissed on 4.12.1976 vide order contained in Annexure 3 to the writ petition. Thereafter, the petitioner has come to this court. 3. For proper appreciation of the case I would also refer to the land ceiling proceedings against the petitioner's brother Tara Nand Prasad and petitioner's mother Smt. Tara Devi. Tara Nand Prasad had been allowed one unit but he also claimed some tank and bandh. Tara Devi had also been allotted one unit and quite a big area of land had been declared surplus. Tara Devi had also a daughter who had not been given any unit at all. Tara Nand Pd. and Smt. Tara Devi were also fighting their cases in respect of their own claims. Petitioner's appeal no. 66 of 1975-76 being remanded by the Board of Revenue came to be heard by the Additional Collector. Appeal no. 65 of 1975-76, filed by Smt. Tara Devi was also heard. Rather both of them were heard analogous. The Additional Collector held that after the death of Thakur Hari Kishore Pd. Singh, who had no male heir, the entire property came to the sole female heir, his daughter name by Smt. Tara Devi, and so long she was alive her sons have no interest in the property. It was, accordingly, held that only she was entitled to one unit and his sons Nitya Nand and Shyama Nand or her daughter were not entitled to any unit whatsoever. The claim of tank was also negatived because Singbara could be grown in it. The Additional Collector, thus, reduced the units of Smt. Tara Devi and Shyam Nand Pd. (petitioner) to only one unit. When the matter came to the Board of Revenue all three petitions filed by Smt. Tara Devi, Tara Nand Pd. and Shyam Nand Pd. (petitioner) were heard together. The Additional Collector, thus, reduced the units of Smt. Tara Devi and Shyam Nand Pd. (petitioner) to only one unit. When the matter came to the Board of Revenue all three petitions filed by Smt. Tara Devi, Tara Nand Pd. and Shyam Nand Pd. (petitioner) were heard together. The learned Member, Board of Revenue in his order contained in Annexure 3 clarified the position that section 4 of the Act, as amended by Act, 22 of 1976 find the ceiling area for one family consisting of not more than five members "on the appointed date". This "appointed date" was 9th of September, 1970. Thakur Hari Kishore Pd. Singh was alive on that date. Therefore, on that date he would have only one unit. He died on 2.8.1971 and on his death Smt. Tara Devi could inherit only that one unit which was held by him. It would be only after the death of Most. Tare Devi that the land held by her would devolve upon her daughter in accordance with law. He also discarded the story of family arrangement made earlier party because no document was produced (or that and partly because under the Santhal Parganas Tenancy (Supplementary Provisions (Act, 1949 there was a bar to the transfer of land by a raiyat. The objection against the classification of land was also ruled out. All the three revision applications were accordingly dismissed. 4. In this writ application nobody appeared at the time of hearing on behalf of the respondents though a counter affidavit was filed. A supplementary affidavit had been filed by the petitioner showing the details of his lands (Vide Annexure 4). Plot No. 21 having an area of 1.11 acres has been shown as pokhar (tank) and plot no. 449 having an area of 5.08 has been shown as bandh. Both of them taken together would be 6.19 acres. It is these two plots which are claimed by the petitioner as tank and bandh. 5. The order in appeal (Annexure 2) is prima facie misconceived. The petitioner had been allowed one unit but he had been disallowed 6.19 acres of land (tank and bandh). The appeal which had been filed related only to tan kand bandh. It is these two plots which are claimed by the petitioner as tank and bandh. 5. The order in appeal (Annexure 2) is prima facie misconceived. The petitioner had been allowed one unit but he had been disallowed 6.19 acres of land (tank and bandh). The appeal which had been filed related only to tan kand bandh. Whatever order, therefore, could be passed in appeal could be only with respect to that land claimed as tank and bandh but as is clear from the order in appeal the very unit of the petitioner was done away with. That unit was not subject matter of the appeal. Any objection to the unit allowed could have been taken by the State Government and if the State Government had filed an appeal then and then only the unit of the petitioner could be touched and not otherwise. But the State Government never filed any appeal against the unit allowed to the petitioner. It is, thus, obvious that the unit of the petitioner was not the subject matter of the appeal and thus any order passed in appeal touching the unit is without jurisdiction. The order in revision contained in Annexure 3 also was against the order in appeal. On the reasonings which have been given above the authority exercising the powers of revision also could not interfere with the unit allowed to the petitioner and as such, that order also cannot be supported in the eye of law. 6. So far the plots claimed as tank and bandh (Plot nos. 21 and 499) are concerned, there is no discussion at all in the revisional order if the same could be allowed to the petitioner or not. In the order in appeal also only a casual reference has been made to say that Singhara or some such things grow in the tank. The word 'land' has been defined in section 2 (f) of the Act. It has to be determined with reference to the definition given there, as to whether, the tank and bandh in any particular case would come within the definition of "land" and be included in the total area of land held by the landholder. It is obvious that neither the Land Reforms Deputy Collector nor the appellate authority or the revisional authority have applied their mind to this aspect of the matter. 7. It is obvious that neither the Land Reforms Deputy Collector nor the appellate authority or the revisional authority have applied their mind to this aspect of the matter. 7. In the circumstances the order contained in Annexure 1/B and also the orders contained in Annexure 2 and 3 so far they relate to the unit of the petitioner, are quashed, and the case is remanded back to the authority which bas passed the orders contained in Annexure 1/B for reconsidering the petitioner's case with respect to the tank and bandh in plots nos. 21 and 499 afresh in accordance with law. There will, however, be no order as to cost. I agree. Application allowed.