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2002 DIGILAW 268 (PAT)

Raj Kishore Prasad Singh v. State Of Bihar

2002-02-25

SHIVA KIRTI SINGH

body2002
Judgment 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. Petitioner is aggrieved by order of the Collector under the Act dated 31.12.2001 as contained in annexure-4 by which petitioners objection to the maintability of proceeding u/s 38 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter referred to as the Act) has been rejected. 3. On the behalf of the petitioner it has been submitted that since the case of the State appears to be that petitioner is holding excess land on account of death of his mother who was allotted one unit of land earlier, hence the Collector can proceed against the petitioner only u/s 18 of the Act and not u/s 38 as is sought to be done. 4. A perusal of the notice contained in annexure-2 shows that the proceeding has been initiated u/s 38 of the Act and petitioner chose not to file a show-cause on merits but through annexure-3 questioned the maintainability of the proceeding itself, by the impugned order the Collector held the proceeding to be maintainable and treated his petition regarding maintainability to be a show-cause on merits and rejected the same and directed him to exercise option to select the land which he may like to retain within permissible limit. 5. On perusal of section 18 and section 38 of the Act, it is clear that in the facts of this case, since the allegation is that the petitioner has acquired more lands than permissible to him, through inheritance, hence it is Section 18 which shall apply and Section 38 contemplates a subsequent stage where after action u/s 18, the Collector if he still thinks that the landholder is in possession of land in excess of the area permissible under law, then may initiate a summary proceedings u/s 38. 6. It is well established in law that special provisions oust the general provisions even in the same statute. In the facts of the case section 18 being special provision enacted to deal with the cases of inheritance, bequest or gift, the same is more appropriate and applicable to the case of the petitioner. This court would like to add here that labelling of the proceeding is not always materia! In the facts of the case section 18 being special provision enacted to deal with the cases of inheritance, bequest or gift, the same is more appropriate and applicable to the case of the petitioner. This court would like to add here that labelling of the proceeding is not always materia! and if the authorities under the Act have the necessary power then they can proceed to decide the controversy in accordance with law. The authorities committed a material error, however, in not giving one more opportunity to the petitioner to file a show-cause on merits of his defence. 7. Considering all the facts and circumstances, this court directs the authorities to treat the proceeding initiated on the basis of notice contained in annexure 2 as a proceeding u/s 18 of the Act. Petitioner is given one opportunity to file his show-cause on merits treating the notice to be u/s 18 of the Act, within 8 weeks from today along with a copy of this Order. If such a show cause is filed then the Collector under the Act should proceed with final determination of the dispute in accordance with law. The impugned order contained in annexure-4 is set aside. 8. This writ petition is disposed of accordingly.