JUDGMENT S. B. Sinha J Whether successive proceeding under Section 45 B of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the said Act) is permissible in law is the central theme of these applications. 2. Before adverting co the said question, the fact involved in each matter may be noticed separately. 3. CWJC NO. 8843 of 1991 The petitioner in this application has questioned a notice dated 1.8.1991 as contained in Annexure-4 to the writ application where by and where under the petitioner has been directed to show cause as to why land Ceiling case No. 12 of 1973-74/54 of 1913-74 shall not be reopened under Section 45 (B) of the said Act. (a) The petitioner is admittedly a landholder. He submitted a return stating therein that he held 83. 75 acres of land in 7 Anchals as detailed in paragraph 6 of the application. The petitioner was allotted one unit and was permitted to retain 25. 89 acres of land (20. 64 acres of Class III land and 5. 25 acres of Class IV land). By an order dated 17th April 1975 as contained in Annexure-1 to the writ application a notification under Section 15 (1) of the said act was published in August. 1975. On or about 1.5.1978 the respondent No.2 directed reopening of the proceeding on the ground that the classification of the land shown in the verification report was not in accordance with law. After reopening of the case, the matter was sent for disposal to the Court of Sub divisional Officer Birpur who upon taking into consideration the show cause filed by the petitioner as also a written statement filed on behalf of the State and upon taking into consideration the show cause filed by the petitioner as also a written statement filed on behalf of the State and upon holding a spot verification dropped the said proceeding. In his aforementioned order the Sub-divisional Officer, Birpur arrived at the finding that no mistake had been committed in classification of the land in question. Admittedly no Appeal and revision was preferred as against the said order. But despite the same by reason of the impugned notice the petitioner has been given to serve with the impugned notice. (b) This application was heard in part on 6.1.1993 and 7.1.1993. Admittedly no Appeal and revision was preferred as against the said order. But despite the same by reason of the impugned notice the petitioner has been given to serve with the impugned notice. (b) This application was heard in part on 6.1.1993 and 7.1.1993. On 7.1.1993 the case was adjourned on a prayer made by the learned Standing Counsel appearing on behalf of the State of Bihar in order to enable him to file a counter affidavit. The case was again listed on 11.1.93 and 19.1.93, Despite the said fact no counter affidavit had been filed even by 8.3.93 on which date the case was taken up for hearing in the admission matter. 4. CWJC NO. 11852 of 1992 (a) This application is directed against notice dated 17.12.1987 issued by the Collector, Sitamarhi, directing the petitioner to show cause as to why Land Ceiling Case No 25/75 shall not be reopened under Section 45B of the said Act. (b) The aforementioned land Ceiling Case No. 25/75 was initiated against the petitioner who possessed lands in three Anchals, namely. Sursand, Belsand and Runni Saidpur in the district of Sitamarhi. Two units had been granted to the petitioner and out of 137.00 acres of land possessed by the land-holder, they were permitted to retain 60.90 acres of land. (c) The land-holder filed objection where upon the Additional Collector passed an order dated 23.12.81 held as follows: "(a) Out of 137.80 acres of Class-IV lands, if 14.89 acres of land is deducted, as being surrendered voluntarily, the rest land remains with the land-holder is 122.91 acres of class IV land. (b) After considering the age of sons and nephew of the land-holder on the basis of the matriculation certificate, the land-holder becomes entitled for five units for which he requires 1500 acres of land whereas the land remains with him is 122.91 acres only. (b) After considering the age of sons and nephew of the land-holder on the basis of the matriculation certificate, the land-holder becomes entitled for five units for which he requires 1500 acres of land whereas the land remains with him is 122.91 acres only. (c) In view of the above stated facts, this proceeding is fit to be dropped, provided the land-holder should file an affidavit to this effect that except the above said land, he does not possess any land in any Anchal of the District or in any District of the State and to this effect also that there is no any land in name of his daughter, Kamini Devi." (d) According to the petitioner the filed affidavits in terms of the aforementioned order dated 23.12.1981 and in the light thereof, the proceeding against the petitioner was dropped. The order dated 4.1.1982 was brought to the notice of the Collector, Sitamarhi for his approval, who, upon finding out certain errors in the order or the Additional Collector, directed him to issue notice to the land-holder under Section 45(B) of the Act and to dispose of the matter accordingly. (e) The petitioner filed a revision application against the said notice. In Revision case No. 74/88 and by an order dated 6.6.1998 the Member Board of Revenue directed the Collector of district to consider the show cause filed by the landholder. The Collector, thereafter heard the matter on 13.6.1989 and by an order dated 13.6.1989 the proceeding was dropped. However, again a notice as contained in Annexure-l has been issued to the petitioner directing him to show cause as to why the aforementioned proceeding be not reopened. In this case also no counter affidavit has been filed on behalf of the Respondents. 5. CWJC No. 12370 of 1992 (a) This application is directed against an order dated 23.7.1992 passed in case No. 22/90-91/165 of 1988-89 under Section 45 (B) of the Act as contained in Annexure-1 to the writ application. A land ceiling proceeding was initiated as against the petitioner being Case No. 165/8889 wherein it was found that his family holds 70.84 acres of Class 3 and 4 lands. By an order dated 2.12.1975 the Deputy Collector Land Reforms held that the petitioner is allowed three units and the proceeding was dropped. A land ceiling proceeding was initiated as against the petitioner being Case No. 165/8889 wherein it was found that his family holds 70.84 acres of Class 3 and 4 lands. By an order dated 2.12.1975 the Deputy Collector Land Reforms held that the petitioner is allowed three units and the proceeding was dropped. The said order is contained to Annexure-2 to the writ application (b) One Ganesh Singh Secretary of the Communist Party of India, filed an application before the Collector of the district informing him that the petitioner is in possession of 101.60 acres of land and he had also lands at Kusheshwar Asthan. He further pointed out that the petitioner was entitled to only one unit. (c) The petitioner filed a show cause. A report had been called for from the Land Reforms issued by the Collector who reported that the petitioner had 86.43½ acres of land in Saharsa district apart from lands at Kusheshwar Asthan. (d) By reason of the impugned order the Collector has come to the conclusion that from report it appears that the age of Akhileshwar Singh, the son of the petitioner could not have been more than 18 years on 2.12.1974 and thus no unit could have been allotted in his favour. (e) Before us the entire records of the case have been produced. From a perusal of the report dated 1st July, 1992 submitted by Sri Ram Krit Singh, Land Reforms. Deputy Collector Sahrsha filed before the District Magistrate, Saharsa it appears that a detailed enquiry had been made with regard to the matter. He has considered all aspects of the matter. He pointed out that an affidavit had been filed bearing No. 1207 dated 11.7.1975 by the land-holder wherein the age of his son had been shown to be 22 years. He further reported that some lands had been sold after 9.9.1970. How ever in relation to the allegation that he is in possession of some lands at Kueshwar Asthan it was pointed out that no details in relation thereto had been received from the Anchal Adhikary of that Area. 6 Mr. Jha, learned counsel appearing on behalf of the petitioner in C.W.J.C. No. 8843 of 1991 submitted that such successive proceedings under Section 45(B) of the said Act is not contemplated in land. 6 Mr. Jha, learned counsel appearing on behalf of the petitioner in C.W.J.C. No. 8843 of 1991 submitted that such successive proceedings under Section 45(B) of the said Act is not contemplated in land. He submitted that in similar matter by an order dated 16th September, 1991 in CWJC No 1301 of 1991 (Dr. Jagannoth Mishra Vs. State of Bihar) a division bench of this court has held that such a proceeding is barred under the principles of res-judicata. Our attention has also been drawn to other orders of this court dated 9.12.1991 and 13.4.1992 in CWJC No. 1398 of 1991 (Kamal Narayan Mishra Vs. the State of Bihar & Ors) and Smt. Savitri Devi and ors Vs the State of Bihar & Ors) in CWJC No. 6680 of 199l wherein also similar contentions raised by the petitioner thereof had been accepted by this Court. 7. Mr. B. P. Verma, learned counsel appearing on behalf of the State however, submitted that the petitioner being brother of the former Chief Minister of Bihar got the orders passed in his favour by the then Collector. It has been submitted that the proceeding had been directed to be reopened for the aforementioned purpose. 8 Mr. Verms, further submitted that Section 45 (B) authorizes the State or the Collector of the District to reopen any proceeding at any point of time. According to Mr. Verma, the provisions of Section 45 (B) of the said Act is of wide amplitude. The learned counsel in support of this contention relied upon a decision of this court in Harishchandra Singh Vs. State of Bihar reported in 1984 PLJR 988. 9. Mr. Shok Haran Singh, learned counsel appearing on behalf of the petitioner in CWJC No. 12370 of 1992 assailed the order impugned in the said writ application and submitted that a fishing enquiry is not contemplated in a proceeding under Section 45B of the said Act. The learned counsel submitted that only upon verification of the materials the age of the petitioner's son had been accepted by the Collector under the said Act who held that his son was a major. 10. Mr. Verma, learned counsel appearing on behalf of the State, however, submitted that the very fact that son of the petitioner was minor on 9.9.70 the same itself justifies reopening of the proceeding under Section 45B of the said Act. 10. Mr. Verma, learned counsel appearing on behalf of the State, however, submitted that the very fact that son of the petitioner was minor on 9.9.70 the same itself justifies reopening of the proceeding under Section 45B of the said Act. He further submitted that the information given by the Secretary of the Communist Party of India must prima facie would be held to be a new information entitling the Collector of the District to reopen the proceeding. 11. Mr. Shrawan Kumar, learned counsel appearing on behalf of the petitioner in CWJC No. 11852 of 1992 submitted that Section 45B contemplates reopening of the proceeding but the same does not mean successive re-openings. According to the learned counsel such exercise of power must be held to be unreasonable. The learned counsel in support of his contention relied open a decision of this Court in Shiv Shankar Prasad Singh. Vs. State of Bihar reported in 1982 BLJ 338=( 1982 BBCJ 362 ). 12. Mr. Hemendra Prasad Singh, learned counsel appearing on behalf of the State, however, submitted that the scope and purport of the provisions of Section 458 of the said Act has recently been considered by this Bench in CWJC No. 10046 of 1992 (Jitendra Kumar Narain Singh Vs. the state of Bihar & Ors) disposed of on 16.12.1992. It has further been pointed out that from a perusal of the order passed by the Collector of the District in the earlier proceedings as contained in Annexure-5 to the writ application, it would appear that no reason has been assigned in support of the said order and as such the impugned notice should not be quashed by this Court. Section 45 (8) of the said Act reads as follows :- 45B. State Government to call for and examine records :- The State Government or the Collector of the district, who may be authorized in this behalf may at any time call for and examine any record of any proceeding disposed of by a Collector under the Act and may, if it thinks fit, direct that the case be reopened and disposed of afresh in accordance with the provisions of the Act.” 13. Interpretation of Section 45B of the said Act came up for consideration on several occasion. In Harihar Singh Vs. Interpretation of Section 45B of the said Act came up for consideration on several occasion. In Harihar Singh Vs. State of Bihar reported in 1984 PLJR 60 , it has been held :- “Possession of new material may be relevant ground for reopening a proceeding but it cannot be the sole ground. On the other hand in the case of Surendra Nath Ghosh and another Vs. The State of Bihar and another (1983 Bihar law Judgments 18) It was held that this power could be exercised If on the basis of the reports of the case it appears that the proceedings had not been conducted or concluded in accordance with the provisions of the Act. The power conferred on the Collector under this provision appears to be very much similar to that conferred under Section 397 of the Code of Criminal Procedure, upon the High Court and the Sessions Judge to cell for and examine the records of any proceeding of the inferior criminal court under their jurisdiction in order to correct the miscarriage of justice arising from misconception of law, irregularity or procedure and the like, It is true that in exercise of such a power the Court cannot make a fishing enquiry or look into see under a fair record there lie some traces of possible error, But at the same time the purpose of conferring such power is to see ore setting right of a paten error or defect, no doubt," 14. In Harishchandra Singh Vs. State of Bihar reported in 1984 PLJR 988 it has been held:- "Section 45B is a special provision conferring special powers upon the State Government and the Collector. It is enacted specifically to do away with any challenge on the ground of res judicata. The legislature has powers to nullify the effect or the principles of res-judiaata. Once the Statute empowers a matter to be examined afresh, it is patent that the principles of res-judicata can have no application. The ambit of Section 45B has been subject matter or several decisions of this court and none of them have laid down that re- examination of the matter in terms of Section 45B would attract the principles of res-judicata The decisions have only restrain the Collector or the State Government acting in a hasty manner. Even in the case of Surendra Nath Ghosh and another Vs. Even in the case of Surendra Nath Ghosh and another Vs. the State of Bihar and another ILR (1979)58 Parna, 898 S. K. Jha J. observed that the matter can be looked afresh only if the previous order is not in accordance with the Act. Again in Harihar Singh Vs. The State of Bihar and others: 1984 BLJR 151 ( 1984 PLJR 60 ) his Lordship observed that the power under Section 45B should be exercised in appropriate cases only and on reasonable basis. The plea regarding bar of Res-Judicata is therefore of no moment and must be rejected." 15. The Bench relied upon an earlier decision of this Court in Shiv Shankar Prasad Singh and ors. Vs. the State of Bihar reported In 1982 Patna 141 wherein it was held :- "I find myself in complete agreement with this judgment that the powers under this Section should be exercised in appropriate cases only and there must be reasonable basis for that purpose. But it is not possible to accept the argument that the material justifying the action must be a new material not available to the authority at the original stage. In that case it was found that the Collector had no material for reopening of the proceeding which only concerned with the age of a particular persons as to whether at the relevant time he was major of minor. The order of reopening was even so vague that it could not be made out as to whose age was the subject matter of the verification. 16. Interpretations the provisions of Section 45B of the Act the learned Judges said:- “the only submission worth taking note of is that the power of re-opening can be exercised only If the notification under Section 11 or declaring service has not been in accordance with the Act. Section 45B enjoins a Collector after the case has been re-opened to dispose it of afresh in accordance with the provisions of the Act. It would be trite to observe that a ceiling case must be disposed of in accordance with the provisions of the ceiling Act. That being so, a final order or publication can be re-opened only if it has not been in accordance with the provisions of the Act. In all the Cases referred to earlier as also in 1983 Bihar Law Judgments, page 33: Shri Thakur Ram Janki Jee Vs. That being so, a final order or publication can be re-opened only if it has not been in accordance with the provisions of the Act. In all the Cases referred to earlier as also in 1983 Bihar Law Judgments, page 33: Shri Thakur Ram Janki Jee Vs. The State of Bihar and others. It has been laid down that a ceiling case may be reopened only if the declaration of surplus land has not been in accordance with the provisions of the Act Learned counsel for the petitioners submitted that the infraction of the provisions of the Act most have reference only to procedural laches Our attention was drawn to the decision of S.K Jha. J in the case of Surendra Nath Ghosh (supra) His Lordship gave some examples of acts done not in accordance with the provisions of the Act. The examples given by S. K. Jha, J. are only Illustrative. They do not exhaust situations where an act bas not been done to accordance with the provisions of the Act. Just to illustrate where a person is entitled to only two units but four units have been awarded that would be against the provisions of the Act calling for re-opening of the proceedings and passing of appropriate orders. Further if any dings of the Collector while passing orders, is based on no evidence or materials a Collector Subsequently or the State Gove. may very well reopen the case because such a finding would be against the provisions of the Act further if lands fall in one category, according to the record but the collector has awarded units on the basis or inferior/superior quality of lands the power under Section 45B may well be exercised Instances of orders not being passed in accordance with the provisions of the Act may be innumerable. The cannot be limited only to procedural defects. The case of Saurendra Nath Ghosh (Supra) therefore, is of no help to the petitioners. It is now firmly established that if the previous order disposing or objections under Section 10(3) of the ceiling Act was not in accordance with the provisions of the Act, it can very well be re-opened." 11. Interpretation of Section 45B also came up for consideration before a Full Bench of this court In Praveen Seankar Singh Vs. State of Bihar reported In 1987 PLJR 154. Interpretation of Section 45B also came up for consideration before a Full Bench of this court In Praveen Seankar Singh Vs. State of Bihar reported In 1987 PLJR 154. The aforementioned matter was referred to the full Bench as the correctness of the decision of the division bench in Yamuna Rai and ors. Vs. the State of Bihar reported in 1984 PLJR 480 was doubted to the effect that in absence of a new case a ceiling proceeding could not reopened. Chief Justice Sandhawalia in view of the stand taken by the Counsel for the State to the effect that he did not challenge the correctness of the view in Yamuna Rai case but relying thereupon held that the reference to the full bench has been rendered in fructuous. However, L.M. Sharma. J (as the learned Chief Justice of India then was) traced down the history of legislation of Section 45B and held :- “It is, therefore, futile to suggest that an arbitrary power has been conferred on the State and the Collector to reopen closed proceedings whenever it or he is inclined to do so. It cannot be assumed that the legislature was acting irresponsibility so as to clothe the authorities with unlimited and uncontrolled powers in order to transgress the established Jurisprudential principles. 18. The learned Judge, further held that the proceeding cannot be reopened on the basis of materials which are already on record holding :- “In my view it is not permissible to do so and this interpretation of the section would be consistent with the age of old principles mentioned above and would be reasonable, just and consistent with fair play. It will save not only the land-holder but also the State from a perpetual threat of uncertainty and consequent harassment for, it is a power which the land holder may also invite to he exercised in his favour and not only once but repeatedly. It will save not only the land-holder but also the State from a perpetual threat of uncertainty and consequent harassment for, it is a power which the land holder may also invite to he exercised in his favour and not only once but repeatedly. If the Section is construed end its widest amplitude implying unbridled and unlimited power, the Collector when asked by as aggrieved land-holder to exercise the Same, cannot without applying him mind, refuse to entertain the prayer as that would amount to abdication of power I, therefore hold that the material on the records of a case taken into consideration by the authorities concerned and a conclusion reached which becomes final (on app or revision or in absence thereof), its finality has to be respected and the proceeding cannot be reopened for giving a second thought. If however, any martial or matter has been omitted from consideration which may be so substantial as to lead to a different conclusion, the power under the Section may be exercised.” 19. B. P. Jha, J (as His Lordship then was) agreed with the view of L.M. Sharma, J (as His Lordship then was). 120. In Tarkeshwar Narayan Singh Vs. State of Bihar reported in 1992 (1) PLJR 416 a learned Single Judge of this court has held that for the purpose of Section 45B of the said Act, the Collector is not to reopen flood gates for fishing enquiry. 21. In a recent decision In Sk. Ibrahim Vs. State of Bihar reported in 1993 (1) PLJR 255 it has been held that a proceeding can be re-opened by the Collector of the district under Section 45B of the Act on the basis of the new material available. 22 In Narmadeshwar Narayan Singh Vs. The State of Bihar reported in 1992 (2) PLJR 68 it has been held that a proceeding cannot be reopened on flimsy or arbitrary grounds. 23. From the conspectus of the decisions referred to hereinbefore, it is evident that Section 45B does not confer upon any arbitrary power upon the Collector of the District to reopen is proceeding on his own sweet will All such orders must be Informed by reasons. 23. From the conspectus of the decisions referred to hereinbefore, it is evident that Section 45B does not confer upon any arbitrary power upon the Collector of the District to reopen is proceeding on his own sweet will All such orders must be Informed by reasons. A land Ceiling proceeding can be reopened only on the availability of the new material or if it is found that the Collector under the said Act had passed such orders in violation of the provisions of law both substantive and procedural which had resulted in real prejudice to the State landholder or any third party. However, I may mention that in a given case it may also be permissible for the collector of the District or the State of Bihar to direct reopening of the proceeding when a fraud has been practiced upon the Collector or any other party when it is found that the order has been passed on extraneous considerations. 24. The power under Section 45B of the said Act has to be exercised sparingly and the same cannot be exercised for the purpose of making a roving or fishing enquiry. While however passing such order, the object and purport of the Act should be the upper most consideration in the mind of the Collector of District or the State. 25. Although the principles of res judicata are not attracted when the Collector passes an order under Section 45 B of the said Act as has been held by this Court in Harischandara Case (Supra). But once a proceeding has been directed to be reopened and the same upon enquiry has been dropped, in my opinion, such a proceeding cannot be directed to be reopened again except in very exceptional cases like practicing fraud upon the Court. A matter which has been duly enquired into by the Collector of the District cannot ordinarily be directed to be reopened, by his successor in interest on the self same ground. 26. Keeping the aforementioned ratio in view these writ applications have to be disposed of 27. In CWJC No 8843 of 1991 evidently the impugned notices had been issued directing the petitioner to show cause as to why proceeding should not be reopened on the self same ground on which the earlier proceeding was directed to be reopened and then upon the enquiry the same was directed to be dropped. In CWJC No 8843 of 1991 evidently the impugned notices had been issued directing the petitioner to show cause as to why proceeding should not be reopened on the self same ground on which the earlier proceeding was directed to be reopened and then upon the enquiry the same was directed to be dropped. The State in these petitions have not filed any counter affidavit to show that in the earlier proceeding fraud had been practiced. by the petitioner upon court in obtaining the said order or the said order was passed on extraneous consideration In absence of any such statement having been made by filing a counter affidavit or a ground having been stated in the notice under Section 45B it self, such a plea cannot be allowed to be raised. 28. It is true that this court in a given case may refuse to exercise its discretion under Articles 226 and 227 of the Constitution of India, when the jurisdictional facts can be determined by the Collector at the first instance as has been held by this court in jitendra Kumar Narain Singh Vs. Stale of Bihar in CWJC. No 10046 of 1992 disposed of on 16.12.1992, but in a case of this nature, the court may not refuse to exercise its discretion. 29. In this view of the matter, the notice dated 1.8.91 as contained in Anneure-4 cannot be sustained and the same consequently has to be quashed. 30. Similarly in CWJC No. 11852 of 199l the impugned notice as contained in Annexure-l has been issued, although an earlier proceeding under section 45B of the said Act had been directed to be dropped, by an order dated 13.6.1989. For the self same reasons the impugned notice as contained in Annexure-1 cannot be sustained. 31. However, such is not the position in CWJC No. 12370 of 1992. In this case before the Collector, new materials have been brought on records. The Collector has considered the new material in terms of the report of the land Reforms Deputy Collector to the effect that the petitioner is really in possession of the lands in excess of the Ceiling Area. In this case before the Collector, new materials have been brought on records. The Collector has considered the new material in terms of the report of the land Reforms Deputy Collector to the effect that the petitioner is really in possession of the lands in excess of the Ceiling Area. It is further evident that prima facie the son of the petitioner Akihileshwar Singh was not major on 9.9.1970, inasmuch as it has been pointed out by the Land Reforms Deputy Collector that the said fact emerges from the affidavit filed by the landholder himself. 32. It may be mentioned here that in Nalini Ranjan Singh & ors Vs. the State of Bihar and others reported in 1977 Patna 171 and in the case of Ganga Das Vs. State of Bihar reported in 1976 BBCJ 409 it had been held that majority or minority of a person has to be determined on the date when the notices under Section 6 (3) of the Act is published in Gazette; but the amendment carried out by reason of Act No. 22 of 1976 has brought about a new situation. 33. This aspect of the matter has been considered by me in Ramji Mishra and other Vs. the State of Bihar and others reported in 1992 (2) PLJR 674. 34. In this view of the matter in my opinion no case has been made out for interference with the impugned notice in CWJC No. 12370 of 1992. 35 For the reasons aforementioned CWJC No. 8843 of 1991, CWJC No. 1l852 of 1992 are allowed and the notices impugned therein are quashed but CWJC NO. 12370 of 1992 is dismissed. 36. However, in the facts and circumstance; of the case there will be no order as to costs. R. M. Prasad, J. I agree. CWJC Nos. 8843/92 & 11852/92 allowed and CWJC 12370/92 dismissed.