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2003 DIGILAW 909 (PAT)

Birendra Kumar Singh v. State Of Bihar

2003-08-27

NAGENDRA RAI, R.S.GARG

body2003
Judgment 1. The questions involved in all the three appeals are common and as such they have been heard together and are being disposed of by this order. 2. The matter arises out of a proceeding initiated under the provisions of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (for short the Act). Admitted position is that proceedings under the provisions of the Act were initiated against the appellants in all the three cases and orders under section 10(3) of the Act were passed, but no final publication under section 11 of the Act, as stood at that time, was made. In the meantime, the Act was amended on 9.4.1981 by Ordinance No. 66 of 1981, which was later on replaced by Act No. 55 of 1982. Apart from other provisions, section 32B was added by the aforesaid amendment, which runs as follows : "32B. Initiation of fresh proceeding. All those proceedings, other than appeal, revision, review or reference referred to in Section 32-A pending on the date of commencement of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1982, and in which final publication under sub-section (1) of section 11 of the Act as it stood before the amendment by aforesaid Act, had not been made, shall be disposed of afresh in accordance with the provisions of Section 10 of the Act." 3. The said provision came up for consideration before a Full Bench of this Court in the case of Harendra Prasad Singh V/s. State of Bihar, reported in 1984 P.L.J.R. 908 and this Court held that in view of the aforesaid provisions when no final publication under section 11 of the Act has been made, the proceeding is to be initiated afresh from the stage of section 10 of the Act. Paragraph 19 of the said judgment runs as follows :- "19. Once that is held, the clue, or, indeed, the answer to the three distinct questions automatically falls into its place. Paragraph 19 of the said judgment runs as follows :- "19. Once that is held, the clue, or, indeed, the answer to the three distinct questions automatically falls into its place. It is accordingly held as under: (i) Under the mandatory provision of section 32B the Revenue authorities are obliged to dispose of afresh all pending proceedings except those in which final publication under section (1) of section 11 of the Ceiling Act has already been made prior to the 9th of April, 1981, being the date of the commencement of the Amending Act. (ii) After the enforcement of the Amending Act on the 9th of April, 1981, if the Revenue authority proceeds to publish a notification under the provisions of the old unamended section 11(1) of the Ceiling Act it would plainly be ignoring and contravening section 32B and nullifying the object and purposes thereof. (iii) The failure to dispose of the pending proceedings afresh and the final publication by way of notification under section 11(1) of the old unamended Act after the 9th of April, 1981 would be wholly without jurisdiction and, therefore, non est. 4. In all the three cases, as no final publication under section 11 of the Act has been made, the authority took steps to initiate the proceeding afresh and has issued the notices, which have been annexed with the writ petitions, whereby steps have been taken to reopen the proceeding from the stage of section 8 of the Act. 5. The said notices were challenged by the appellants before the learned Single Judge on two grounds; firstly that no proceeding was pending at the time of coming into force of section 32B of the Act as the objections under section 10(3) of the Act were disposed of and as such section 32B is not attracted and secondly that even if the provision of section 32B is attracted, the notices were not issued in terms of section 32B of the Act. 6. The learned Single Judge dismissed all the three writ petitions on the ground that as no final publication under section 11 of the Act was made, the proceedings were pending before the authorities and as such the authorities were competent in law to proceed afresh in terms of the provisions contained in section 32B of the Act. 7. 6. The learned Single Judge dismissed all the three writ petitions on the ground that as no final publication under section 11 of the Act was made, the proceedings were pending before the authorities and as such the authorities were competent in law to proceed afresh in terms of the provisions contained in section 32B of the Act. 7. Learned counsel appearing for the appellants submitted the same points before this Court; firstly that as section 10(3) objections were disposed of, no proceeding was pending at the time when section 32B came into force and as such proceeding cannot be started afresh and secondly that according to section 32B, if no final publication under section 11 has been made with regard to any proceeding then the proceeding has to be started at the stage of section 10 and not at the stage of section 8 of the Act. 8. So far as the first point is concerned, we are unable to agree with the submission raised by learned counsel for the appellants. Section 32B is clear. The law laid down by the Full Bench of this Court is also clear. There is no confusion at all. Unless the final publication under the provisions of section 11 of the Act is made, the proceeding will be treated to be pending even if objection under section 10(3) has been disposed of. This is clear from the wording of the provision itself and as such the said point is rejected. 9. So far as the second point is concerned, we find force in the aforesaid submission. Section 32B of the Act clearly requires that when no final publication has been made under section 11 of the Act, the proceeding has to be initiated afresh in accordance with the provision of section 10 of the Act. The meaning of afresh has been interpreted by this Court in the case of Mohan Chaudhary V/s. State of Bihar, reported in 2000(3) P.L.J.R. 780 . 10. The proceeding cannot be initiated from the stage of section 8 of the Act as has been ordered by the concerned officer by issuance of the notices impugned in the different writ petitions. The meaning of afresh has been interpreted by this Court in the case of Mohan Chaudhary V/s. State of Bihar, reported in 2000(3) P.L.J.R. 780 . 10. The proceeding cannot be initiated from the stage of section 8 of the Act as has been ordered by the concerned officer by issuance of the notices impugned in the different writ petitions. Accordingly, the notices contained in Annexure 4 of C.W.J.C. No. 11624/2002 (L.P.A. No. 730/03), Annexure 3 of C.W.J.C. No. 11462/2002 (L.P.A. No. 740/03) and Annexure 4 of C.W.J.C. No. 11346/2002 (L.P.A. No. 742/03) are quashed, with this observation that it will be open for the respondent-authority to proceed afresh in accordance with the provisions contained in section 32B of the Act in the light of the observations made above. 11. In the result, all the three appeals are allowed to the extent indicated above.