Sk. Samiur Rahman v. State of Bihar — 1993 DIGILAW 90 (PAT)

JUDGMENT : S.B. Sinha, J. - In this application the petitioners have prayed for issuance of a writ of certiorari for quashing an order dated 11th August, 1992 passed by the Respondent No.1, in Land Ceiling Case No. 275 of 1992 whereby the land proceedings have been opened purported to he under Section 45B of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the said Act). 2. The fact of the matter lies in a very narrow compass. In order to appreciate the point involved in his case, the Genealogical table of the family of the petitioners as stated in the writ application may be reproduced: 3. A proceeding under the said Act being L.C. Case No. 1160 of 1973-74 was initiated against Sk. Saidur Rahman, Sk. Mazidur Rahman and Sk. Hamidur Rahman. The family is said to be possessed of 429.65 acres of land in, K.Nagar Anchal and 78.88 acres of land in Purnea East Anchal, totalling an area of 508.53 acres of land. 4. According to the petitioners all the brothers have equal shares in the said 508.53 acres of land. The petitioner has contended that all the three brothers are separate in mess and properties. 5. The petitioner has contended that according to the check slip 429.65 acres of land have been found in possession of the petitioners in K.Nagar Anchal and 78.88 acres of land in Purnea East Anchal. 6. A draft publication was made under, Section 10(2) of the Act. In the final order 5 units have been given to the family as the fat her of the petitioners No.1 to 4 and the husband of the petitioner No.5 died and all the sons was found to be major on 9.9.1970 by an order dated 30th September, 1983. 7. However, by an order as contained in Annexure-3 to the writ application the proceeding has been 'reopened which according to the petitioners was dropped in the year 1983. Accordingly Respondent No.2 has directed for issuance of notice in draft statement under section 10(2) of the Act to all the parties. 8. Mr. Jagdish Prasad Bhagat, learned counsel appearing on behalf of the petitioner has raised a short question in support of this application. Accordingly Respondent No.2 has directed for issuance of notice in draft statement under section 10(2) of the Act to all the parties. 8. Mr. Jagdish Prasad Bhagat, learned counsel appearing on behalf of the petitioner has raised a short question in support of this application. The learned counsel submitted that as no appeal or revision was filed by the State against the order dropping the proceedings, assuming that the some units had wrongly been allotted to the petitioners, the said proceedings itself could not have been reopened after a lapse of about 9 years. 9. The learned counsel in support of this contention has relied upon a decision of this court in Shyama Nand Vs. State of Bihar reported in 1980 BBCJ .47 and Choudhary Sah Vs. State of Bihar reported in 1982 BBCJ 130 (SC). 11. Mr. Ragheb Ahsan, learned counsel appearing on behalf of the State, however, submitted that the aforementioned decisions have no application in the facts of this case, inasmuch as it is not a case where Order 41 Rules 22 or Rule 33 of the Code of Civil Procedure is applicable. The learned counsel pointed out that an apparent mistake has been committed insofar as the petitioners have been shown to be in possession of 268.99 acres of land in place of 384.89 acres of land and thus 115.90 acres of lamb have been left out. 12. It has further been found that the Collector under the Act has accepted the purported gin of 149.88 acres of land without making any enquiry in this regard. 13. It has further been pointed out that the land-holder was alive on 9.9.1980 and as such no unit could have been allotted in favour of his son. 14. From a perusal of the impugned order, it appears that the contention of the petitioners before the Collector inter alia was that the deeds of gift has been executed within the statutory period and further at the relevant period of time all the major sons were entitled to separate unit. 15. It has further been contended that if any land was left out by the respondents, they should not be penalized for the said purpose. 16. 15. It has further been contended that if any land was left out by the respondents, they should not be penalized for the said purpose. 16. The Collector has pointed out that apparently there arc errors with regard to the extent of lands held and possessed by the petitioners inasmuch as without any reason whatsoever 115.90 acres of land had been left out. 17. The Collector has further pointed out that other points raised by the petitioner can be determined in the proceedings after reopening of the same. 18. In our opinion, the collector is correct in his opinion to the effect that when there exists an error which has crept in because of wrong verification on the part of the revenue authorities, it was a fit case in which the proceeding should be reopened. 19. The Collector has also rightly pointed out that such an error cannot be said to be an inadvertent one but appears to be a deliberate omission on t he part of the officers. He also recommended that action be taken against the guilty officers. 20. This court recently in C.W.J.C No. 8843 of 1991 and ors disposed of on 23.2.93 upon taking into consideration various decisions of this court have held as follows: "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 a 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 was resulted in real prejudice to the State, land-holder 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. The power under Section 45B of the said Act, has to he exercised sparingly and the same cannot he exercised for the purpose of making a roving or fishing enquiry. The power under Section 45B of the said Act, has to he exercised sparingly and the same cannot he 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." 21. This case, in our opinion, comes within the purview of the aforementioned ratio as according to the Collector of the District, a fraud has been practiced upon the State by its own officers. 22. Shyama Nand vs. State of Bihar reported in 1980 BBCJ 47 , has no application in the facts and circumstances of this case. In that decision an appeal had been filed which only relational to a tank, thus any order could be passed only in relation thereto but the appellate authority had held that the petitioner was not entitled to a unit at all which was not _ the subject matter of the appeal. It was, therefore, held as the unit of the petitioners was not the subject matter of the- appeal, no order could be passed by the appellate authority in relation thereto. 23. Similarly in Choudhary Sah Vs. State of Bihar reported in 1982 BBCJ 130 (SC) it has been held that under Order 41 Rule 22 & 23 only the operative part of the decree can be supported by the Respondent by questioning the findings recorded against him but if a decree has been passed against the respondent, the same cannot be reversed although no cross appeal or cross objection has been filed by him. 24. The power of a Collector of the District under Section 45B stands altogether on a different fouling. Such a power can be exercised by the State Government or the Collector of the District if the conditions precedent therefor are fulfilled. 25. Section 45B of the Act cannot be equaled with Order 41 Rule 22 or Rule 33 of the Code of Civil Procedure. The scope and object of both the provisions are absolutely different. 26. It is true that the proceedings had been reopened after a long period. However, in this case, the Collector has pointed out a glaring mistake involving a large tract of land. The scope and object of both the provisions are absolutely different. 26. It is true that the proceedings had been reopened after a long period. However, in this case, the Collector has pointed out a glaring mistake involving a large tract of land. The order passed by the Collector of the District under Section 10(3) of the Act was obtained by practising fraud upon the court. In this situation, the said order if allowed to stand, the same shall, in our opinion, defeat the object of the said Act, and would cause substantial injustice to the State. In this view of the matter, it is not a fit case, in which we should exercise our discretion in exercise of our Jurisdiction under Articles 226 of the Constitution of India. 27. In this case, the Collector has assigned sufficient and cogent reasons for passing the impugned order. It is also evident that in the proceedings leading 10 passing of the order under section 10(3) of the Act, the provisions of Section 8 as also Rule 8 of Rules has been violated. The deliberate omission on the part of the officers of the State to exclude such a huge tract of land amounts to practicing a fraud upon the court. Such a false report might have been given on extraneous consideration. 28. For the reasons aforementioned, there is no merit in this application which is accordingly dismissed. 29. Before parting with this case, we may point out that we have not applied our mind to the merit of the case which has to be decided in the proceeding itself. 29. In the facts and circumstances of the case, there will be no order as to costs.