Mohd. Raza v. State Of Bihar — 1999 DIGILAW 16 (PAT)

Judgment R.A.Sharma, J. 1. Late Md. Raza made a Wakful Alal Aulad (hereinafter referred to as the Wakf) in respect of his immovable properties of several villages by a registered deed dated 12.4.1939. In 1961, Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus) Act, 1961 (hereinafter referred to as the Act) was enacted by the State of Bihar fixing ceiling area of the agricultural land for a family. A Land Ceiling Case No. 384 of 1973 was started in respect of the land of the wakf under the Act and a notice was published and served on Mutawalli of the Wakf calling upon him to file the return. The Wakf through the Mutawalli filed the return/representation, pursuant to the said notice. After considering the representation filed on behalf of the Wakf and the other materials on the record about 123 acres of the agricultural land of the Wakf were declared surplus by the competent authority. Accordingly, a notification under Sec. 15 of the Act acquiring the surplus land of the Wakf was published in the Gazette dated 1.8.1978. 2. The orders passed under the Act declaring some of the land of the Wakf as surplus and the Notification under Sec. 15 of the Act acquiring the said surplus land were not challenged by or on behalf of the Wakf and they became final. In 1980, petitioner No. 2 became Mutawalli. In 1986, on a representation made by the Sunni Wakf Board, the Deputy Secretary, Law Department, Govt. of Bihar, sent a letter dated 27.11.1996 to the Deputy Commissioner, Hazaribagh, asking him to stay the ceiling proceedings against the Wakf property until further orders. By letter dated 7.8.1990 issued by the Additional Secretary, Law Department, Govt. of Bihar, the Ceiling authorities were informed that nothing can be done in the matter because the Act is applicable to the Wakf land also. After receipt of the said letter, the Deputy Commissioner by order dated 1.1.1991 directed distribution of the surplus land of the Wakf with the observation that the same could not be distributed earlier in view of the conspiracy involving the Law Department of the State. The surplus land of the Wakf was accordingly distributed to the landless persons of the Scheduled Castes/Scheduled Tribes, etc. on 16.9.1991. 3. The surplus land of the Wakf was accordingly distributed to the landless persons of the Scheduled Castes/Scheduled Tribes, etc. on 16.9.1991. 3. After the surplus land of the Wakf was distributed to the landless persons, this writ petition was filed on 17.9.1991 in this Court challenging the Notification dated 1.8.1978 under Sec. 15 of the Act. The afore^ said letter dated 1.8.1978 issued by the Additional Secretary, Law Department, Government of Bihar, Patna to the Deputy Commissioner, Hazaribagh saying that the provisions of the Act will apply in relation to the Wakf land also as well as the letter dated 1.1.1991 by which the Deputy Commissioner, Hazaribagh, directed distribution of the surplus land of the wakf have also been challenged. The respondents have filed the counter-affidavit and the petitioners have filed rejoinder-affidavit in reply thereto. We have heard the learned Counsel for the parties. 4. The submission of the learned Counsel for the petitioners is that a Wakf under the Mohammedan Law is not like an ordinary trust, to which the provisions of the Act can be applied and, therefore, the competent authority had no jurisdiction to declare the Wakfs land as surplus under the Act. The submission of the learned J.C. to the Government Advocate on the other hand is two fold, i.e., (i) Wakf is a Trust to which the Act is applicable, and (ii) the Personal Law is neither relevant nor is applicable for determining the ceiling area under the Act. In this connection, reliance has been placed on the definition of the word "family" as contained in Sec. 2(ee) of the Act, which is reproduced below: 2(ee)-- "family" means and includes a person, his or her spouse and minor children; Explanation I--In this clause, the word person includes any company, institution, trust, association or body of individuals whether incorporated or not; Explanation II--The Personal Law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of the Act. Strong emphasis has been placed by the learned Counsel on Explanation II to Sec. 2(ee), which excludes the Personal Law for the purpose of determination of composition of the family with regard to which the ceiling area has been fixed. Strong emphasis has been placed by the learned Counsel on Explanation II to Sec. 2(ee), which excludes the Personal Law for the purpose of determination of composition of the family with regard to which the ceiling area has been fixed. That apart, the learned Government Counsel has raised a preliminary objection about the maintainability of the writ petition on the ground that the order by which the Wakfs land was declared surplus has not been challenged and the said order is also not on the record of this petition and so long as that order stands, no relief can be granted to the petitioners by this Court. 5. Before dealing with the controversy on merit, it is appropriate to decide the preliminary objection raised by the learned Counsel for the State. 6. In this connection, it may be mentioned that the petitioners have neither challenged the validity of the provisions of the Act nor have they challenged the orders passed under the Act declaring the Wakfs land as surplus. They have challenged the consequential Notification under Sec. 15 of the Act acquiring the land declared surplus. They have also challenged the letter dated 7.8.1990 issued by the Additional Secretary, Law Department, Government of Bihar, communicating his opinion to the ceiling authorities that the Act will apply to the Wakfs land also as well as the letter dated 1.1.1991 issued by the Deputy Commissioner directing distribution of the surplus land to the landless persons. 7. Before proceeding further, it will be appropriate to notice the relevant provisions of the Act. Sec. 4(a) of the Act has fixed fifteen acres of irrigated land as the ceiling area for one family consisting of not more than five members. By Clauses (b) to (f) to the said Section, the ceiling area has been increased depending upon the source of irrigation and the nature and type of the land. The word "family" has been defined in Sec. 2(ee) of the Act, which has already been quoted above. Sec. 5 prohibits holding of land in excess of the ceiling area, except otherwise provided under the Act. Under Sec. 6, the Government is required to publish a notice calling upon the land-holders to submit return containing the particulars mentioned therein to the Collector of the district. Sec. 8 provides penalty for non-submission of the return. Sec. 9 gives option to the family to select its ceiling area. Under Sec. 6, the Government is required to publish a notice calling upon the land-holders to submit return containing the particulars mentioned therein to the Collector of the district. Sec. 8 provides penalty for non-submission of the return. Sec. 9 gives option to the family to select its ceiling area. After receiving the return and the information from other sources and after checking the same in the prescribed manner a draft statement containing the relevant particulars including the area and description of the land of the land-holder, which is in excess of the ceiling limit, is required to be prepared and published under Sec. 10 inviting objections. The objection so received is considered by the Collector, who after giving the parties a reasonable opportunity of being heard and adducing evidence, is to pass such orders as he thinks proper. Thereafter, a final statement, after making such alteration in the original draft statement as may be necessary to give effect to any order passed on the objection/claim is prepared and published in the official Gazette of the district under Sec. 11 on the basis of which a Notification under Sec. 15(1) is issued and published in the Gazette whereby and whereunder the surplus land as determined under the final order/statement is acquired by the State Government. Sec. 27 provides for distribution of the surplus land to the landless persons, Scheduled Castes, Scheduled Tribes, etc. Sec. 29 exempts certain land from the purview of the Act. It also gives power to the Government to exempt such extent of land held by the public charitable or religious bodies, etc. as may be notified by it. Sec. 30 of the Act provides for appeal against the order passed by the competent authority. 8. According to Paragraph No. 6 of the counter-affidavit the Government has exempted 45 acres of land of the Wakf under Sec. 29 from the purview of the Act. 9. The relevant provisions of the Act clearly indicate that it is a self-contained Code as regard the ceiling area and the matters connected therewith. It has fixed ceiling area of the land for a family and has laid down the detailed procedure for determining the surplus land after due notice to the parties. The rights and obligations of the parties under the Act are determined by the competent authority in a quasi-judicial manner in accordance with the procedure laid down therein. It has fixed ceiling area of the land for a family and has laid down the detailed procedure for determining the surplus land after due notice to the parties. The rights and obligations of the parties under the Act are determined by the competent authority in a quasi-judicial manner in accordance with the procedure laid down therein. If a person is not satisfied with the order declaring his land as surplus he can challenge it before the appellate authority. It is admitted that the petitioners did not challenge the substantive order declaring the land of the Wakf as surplus before the appellate authority. The Notification under Sec. 15 is merely consequential which necessary follows after publication of the final statement under Sec. 11. Sec. 15 being relevant is reproduced below: 15. Acquisition of surplus land-- (1) The State Government or the Collector of the district specially so empowered in this behalf shall after the statement under Sub-sec. (1) of Sec. 11 has been finally published and subject to appeal or revision, if any, acquire, the surplus land by publishing in the Official Gazette of the District, a Notification to the effect that such land is required for a public purpose and such publication shall be conclusive evidence of the notice of the acquisition to the person or persons concerned: Provided that without awaiting the result of appeal or revision the State Government or the Collector of the district specially so empowered in this behalf may proceed to acquire such of the surplus land of the land-holder in respect of which there is no claim or dispute or which is admitted by the land-holder to be surplus: Provided further that a copy of the Notification shall also be sent to the land-holder concerned by registered post with acknowledgment due. (2) On the publication of the Notification under Sub-sec. (1), the land specified in the Notification shall, subject to the provisions of the Act, be deemed to have been acquired for the purposes of this Act and vested in the State free from all encumbrances with effect from the date of the Notification and all right, title and interest of all persons claiming interest therein shall, with effect from that date, be deemed to have been extinguished. (3) Subject to *** any order made on appeal or revision, the Collector may at any time after the publication of the notification under Sub-sec. (3) Subject to *** any order made on appeal or revision, the Collector may at any time after the publication of the notification under Sub-sec. (1) take possession of any land specified in the said Notification and may for that purposes use such for as may be necessary. Even if the consequential notification under Sec. 15 is quashed, the substantive order under Sec. 11 remains contact. It is well settled that if the substantive order is set aside/quashed, the consequential order passed pursuant thereto falls to the ground automatically. But, the converse is not true. The consequential order can be challenged on the ground that it is not in accordance with the substantive order pursuant to which it was issued. It may also be challenged on the ground that it has not been issued by a competent authority, but that is not the position in the instant case. Here, the said Notification has been challenged on the ground that the Act is not applicable to the Wakf property. That is plea which was raised on behalf of the Wakf before the competent authority when the proceedings under Secs. 6 to 10 were pending before it. This is clear from paragraph Nos. 10 to 13 of the writ petition. But, this plea was not accepted by the authorities. The averments made in the writ petition that without considering the objection of the Wakf and without giving opportunity of being heard to the Mutawalli, the competent authority passed the order declaring the Wakf is land as surplus have been disputed in the counter-affidavit. That apart, copies of the orders and draft statement have not been placed on the record of this writ petition by the petitioners so as to enable this Court to find out the correctness of the said allegations. In any case, if that was the position, the petitioners should have challenged those orders before the appellate authority. But, that was not done and those orders were allowed to become final in or about 1977-78. In view of the facts and circumstances of the case, the relief prayed for by the petitioners cannot be granted. 10. In this connection, reference may be made to Mafatlal Industries Ltd. and Ors. V/s. Union of India and Ors. But, that was not done and those orders were allowed to become final in or about 1977-78. In view of the facts and circumstances of the case, the relief prayed for by the petitioners cannot be granted. 10. In this connection, reference may be made to Mafatlal Industries Ltd. and Ors. V/s. Union of India and Ors. -- wherein the apex Court held that the Central Excise Act being a self-contained Code, the claim for refund of the excise duty has to be made under and in accordance with Rule 11 or Section 11B as the case may be, in the forums provided by the said Act. It was further laid down that although the provisions of the Central Excise Act cannot bar and curtail the remedy provided under Article 226 of the Constitution, but the High Court has to take note of the legislature intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions thereof. The relevant observations of the apex Court in the said case are reproduced below: ...It, therefore, follows that any and every claim for refund of excise duty can be made only under and in accordance with Rule 11 or Sec. 11-B, as the case may be, in the forums provided by the Act. No suit can be filed for refund of duty invoking Sec. 72 of the Contract Act. So far as the jurisdiction of the High Court under Article 226 or for the matter, the jurisdiction of this Court under Article 32 is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. 11. For the reasons given above, it is not proper to interfere with the consequential Notification dated 1.8.1978 issued under Sec. 15 leaving the order declaring the land as surplus undisturbed, validity of which is not under challenge. The letter dated 7.8.1990 issued by the Additional Secretary merely mentions that unless the Act is amended, it is applicable to the Wakf property also. The letter dated 7.8.1990 issued by the Additional Secretary merely mentions that unless the Act is amended, it is applicable to the Wakf property also. This very plea was raised on behalf of the Wakf before the authorities concerned when the proceedings were pending before it, but the same was not accepted. Even if the said letter dated 7.8.1990 is ignored, the substantive order declaring the land surplus remain intact. The other letter dated 1.1.1990 is by the Deputy Commissioner for distribution of the surplus land. Even if such letter is not there, the surplus land has to be distributed under and in accordance with Sec. 27. No purpose will be served by setting aside the aforesaid two letters dated 7.8.1990 and 1.1.1990 because the law will take its own course in view of the orders passed by the competent authorities declaring the Wakf land as surplus, which are not under challenge. 12. That apart, the writ petition filed by the petitioners is highly belated. The Notification under Sec. 15(1) of the Act was published on 1.8.1978 and this writ was filed in September, 1991, i.e., almost 13 years after the publication of the said notification. There is no plausible explanation as to why the writ petition was not filed earlier, immediately after the said Notification was published. The fact that the Wakf filed representation in 1986 before the State Government seeking exemption of the Wakf property is not a ground to ignore such a delay. That apart, even the representation before the Government was belated. There is also no explanation as to why the substantive order passed by the competent authority declaring the land of the Wakf as surplus has not been challenged either before the appellate authority or before this Court. The submission that the High Court is the higher Court and whatever it says is binding upon the subordinate authorities cannot be accepted as a ground for allowing this writ petition without setting aside the substantive order, which is not under challenge and which is also not on the record. 13. The preliminary objection raised by the learned Counsel for the State is accepted and the writ petition is liable to be dismissed accordingly. The writ petition is also liable to be dismissed on the ground of excessive delay and laches in approaching this Court. 13. The preliminary objection raised by the learned Counsel for the State is accepted and the writ petition is liable to be dismissed accordingly. The writ petition is also liable to be dismissed on the ground of excessive delay and laches in approaching this Court. It is, therefore, not necessary to go into other questions raised by the learned Counsel for the parties. 14. This writ petition is, accordingly, dismissed. No cost. A.K.Prasad, J. 15 I agree.