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1999 DIGILAW 557 (PAT)

Bishwadeva v. State

1999-07-02

NAGENDRA RAI

body1999
JUDGMENT Nagendra Rai, J. - The petitioner has challenged the order dated 16.9.90 passed by the Collector, Begusarai in Misc. Ceiling Case no. 30/1983 by which in exercise of power under section 45B of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter referred to as the Act) he has passed an order for re-opening. as well as cancellation of earlier orders passed in Ceiling Cases no. 16/1970 and 30/1983. A copy of the said order has been annexed as Annexure-1 to the writ application. 2. A land ceiling proceeding 4/1973-74 was initiated against Chandramauli Deva father of the petitioner. According to the draft statement the total land possessed by him was 363.645 acres. The father of the petitioner filed an objection under section 10(3) of the Act claiming that his family was entitled to 5 units of land and he also stated therein that 121.64 acres of land of different classes may be allowed to be retained by his family. The details of those were also stated in the objection petition a copy of which has been annexed as Ahnexure-2 to the writ application. The matter was heard and finally disposed of by the ceiling Authority on 13.9.97 wherein five units were allowed to the family and the area of the land measuring 72.23 acres were allowed to be retained by him and the remaining lands were declared as surplus, a copy of which has been annexed as Annexure 3 to the writ application. Thereafter, a final publication under section 11 of the Act was made and it appears that at the time of final publication the land of plot no. 1001 measuring 1 acre and the land of plot no. 2002 measuring 0615 decimals which were allowed to be retained by the petitioner while disposing of the objection petition were declared as surplus land. The said plots were distributed to the landless persons. The land of plot no. 2001 which was allowed to be retained by the petitioner while disposing of the objection was also wrongly distributed to the landless persons though the same was not declared as surplus land. 3. The said plots were distributed to the landless persons. The land of plot no. 2001 which was allowed to be retained by the petitioner while disposing of the objection was also wrongly distributed to the landless persons though the same was not declared as surplus land. 3. After the death of the father of the petitioner when the petitioner came to know that the lands which were allowed to be retained, were wrongly distributed showing the same as surplus land filed an application under section 37 of the Act which was registered as Misc. Case no. 16/1980 before the Collector of the district praying therein that the possession of the aforesaid plots may be given to him which were allowed to be retained by his family. Thereafter, the matter was considered by the Collector who having found substance in the prayer of the petitioner ordered an enquiry and to take steps for release of the aforesaid plots from the category of the surplus land in case assertion of the petitioner was found to be correct. A copy of the said order has been annexed as Annexure-4 to the writ application. Thereafter, the Addl. Collector enquired into the matter and found that plot nos. 1001, 2001 and 2005 were allowed to be retained by the petitioner and necessary correction be made in the relevant records and in its place plot nos. 1626 to 1629 may be acquired. Accordingly, he sent enquiry report to the Collector for approval on 2.12.81, a copy of which has been annexed as Annexure-5 to the writ application. Thereafter, agreeing with the enquiry report a necessary correction was made by issuing a gazette notification by which these plots being 1001 measuring 1 acres and 2005 measuring 0615 decimals were released as surplus land and in its place plot nos. 1626 to 1628 were notified as surplus land, a copy of which has been annexed as Annexure-6 to the writ application. Thereafter, the petitioner requested the authority to give possession of the aforesaid three plots which were, in the meantime, distributed under section 27 of the Act and a direction was issued by the Collector for giving possession of the aforesaid land and in pursuance of which the possession was given to the petitioner of the land of the aforesaid three plots. The order of the Collector for giving the delivery of possession of the aforesaid land and the document showing delivery of possession of the aforesaid three plots have been annexed as Annexures 7 & 9 to the writ application. Thereafter, it appears that the matter with regard to tile release of the land of the petitioner and dispossession of the settlee was raised in the meeting held in the office of the Commissioner and the Commissioner by letter dated 8.6.90 asked the Collector to look into the matter and thereafter the Collector by the impugned order has under section 45B ordered for reopening the ceiling proceeding for the purpose of correction of the earlier two orders by which the aforesaid lands were released. 4. From narration of the facts it is clear that while disposing of the objection under section 10(3) of the Act the father of the petitioner was allowed to retain the aforesaid three plots being plot nos. 1001, 2001 and 2005 and the remainings lands were declared as surplus land. Later on due to mistake at the stage of final publication lands of plot nos. 1001 & 2005 were declared as surplus land. So far the land of plot no. 2001 is concerned it was never declared as surplus and that was allowed to be retained but due to mistake lands of the aforesaid three plots were treated as surplus land and after gazette notification the same were distributed amongst the landless persons under section 27 of the Act. When the petitioner came to know about the said fact filed an application and thereafter a detailed enquiry was made and it was found that by mistake those lands were declared as surplus land and distributed amongst the landless persons. Accordingly, an order was passed and thereafter the lands were released in favour of the petitioner and the possession was also given. 5. Learned counsel for the petitioner submitted that re-opening of the proceeding on the ground mentioned in the impugned order is not permissible in law as concluded proceeding could not be reopened for fishing enquiry or to test the correctness of the earlier order. In support of the same he has relied upon a Full Bench decision of this Court in the case of Praveen Shanker & Ors. In support of the same he has relied upon a Full Bench decision of this Court in the case of Praveen Shanker & Ors. vs. The State of Bihar & Ors., 1987 PLJR 154 wherein it has been held that the proceeding cannot be reopened merely for fishing enquiry or to test the correctness of the earlier order. It was further held that power under section 45B of the Act should not be invoked lightly. The consequences of such exercise may lead to serious civil consequences. 6. Learned counsel for the Stale submitted that the order in favour of the petitioner was passed without going through the complete materials on the record and as such the authority was justified in re-opening the proceeding in exercise of the power under the aforesaid provision. 7. After hearing the parties and on perusal of the record I find substance in the submission advanced on behalf of the petitioner that the proceeding under section 45B of the Act cannot be re-opened only to consider the correctness of the earlier order passed by the competent authority under the Act. Only in case where the earlier order has been passed on incomplete material or fresh material has come to the notice of the authorities from different sources the proceeding can be re-opened but it cannot be opened only on the ground that the Presiding Officer has not correctly decided the matter as has been done in this case. The orders appended with the writ application clearly show that the authority after having come to the conclusion that injustice has been done to the petitioner by declaring the plots, which were allowed to be retained by him, as surplus land and wrongly distributed to the landless persons, passed an order for release of the land, which was wrongly treated as surplus land, in favour of the petitioner and put him in possession. As such it cannot be said that the order passed in favour of the petitioner is on the basis of the misrepresentation and suppression or on the basis of the incomplete record. Only because some landless persons were dispossessed because of the order passed by the Ceiling Authority to do justice to the land holder, the Collector has no power to re-open the proceeding. 8. Only because some landless persons were dispossessed because of the order passed by the Ceiling Authority to do justice to the land holder, the Collector has no power to re-open the proceeding. 8. From perusal of the impugned order it appears that the main ground for re- opening the proceeding is to judge the correctness of the earlier order without any fresh material on the record. Thus, I am of the view that re-opening of the proceeding in the facts of this case is wholly unjustified. As such the order contained in Annexure-1 is quashed. 9. In the result, the writ application is allowed. There shall be no order as to costs.