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2006 DIGILAW 75 (PAT)

Kashi Nath Singh v. State Of Bihar

2006-01-19

AFTAB ALAM, NAVIN SINHA

body2006
Judgment Aftab Alam, J. 1. This appeal arising from a land ceiling proceeding is directed against the judgment and order dated 3.10.1996 passed by a learned Single Judge dismissing C.W.J.C. No. 3357 of 1985 filed by the appellants-landholders. 2. Counsel for the appellants assailed the order of the writ court as well as the orders passed by the authorities under the Act on a number of issues, including the denial of a separate unit to one of the family members, namely, Umesh Prasad Singh who, according to the appellants, had attained majority on 9.9.1970. But we need not go into all the points urged on behalf of the appellants because we find that the first order passed by the original authority (the Sub-divisional Officer, Bhabua) suffers from a jurisdictional error that is fatal to the entire proceeding. 3. In order to examine the validity of the first order passed in the proceeding by the S.D.O., Bhabua it is not required to go into much details. Suffice it to note that the Land Ceiling Case No. 704 of 1973-74/ 218 of 1975-76 was initiated against Sitaram Singh, the father of appellant no. 1 and the husband of appellant no. 2. In the first round of the proceeding the authorities of the first and the second instances rejected the landholders objections with regard to the classification of land and the majority of Umesh Prasad Singh on 9.9.1970 and sundry other objections to the draft statement. The proceeding finally reached the revisional stage and by order dated 3.1.1978 passed by the Additional Member Board of Revenue in Case No. 1662 of 1967 the revision filed by the landholder was allowed. The Board of Revenue found and held that the original order was bad in law and hence, the appellate order too could not be sustained. In the light of those findings the Board of Revenue remanded the case to the Sub-divisional Officer for disposal in accordance with law. 4. While the matter lay before the original authority after remand from the Board of Revenue the Land Ceiling Act underwent a very major change. By Ordinance No. 66 of 1981 (effective from 9.4.1981) Sections 32A and 32B were introduced in the Land Ceiling Act. The Ordinance was followed by Act 55 of 1982 (effective from 25.1.1982) that permanently retained the two provisions in the statute book. By Ordinance No. 66 of 1981 (effective from 9.4.1981) Sections 32A and 32B were introduced in the Land Ceiling Act. The Ordinance was followed by Act 55 of 1982 (effective from 25.1.1982) that permanently retained the two provisions in the statute book. By virtue of Sections 32A and 32B all proceedings, at whatever stage, pending on the date of coming into force of the two provisions got abated by operation of law with a mandate to the authorities t initiate a fresh proceeding from the stage of Section 10. The ambit and scope of Section 32B was considered by a Full Bench of this court in Harendra Prasad Singh V/s. State of Bihar and Anr., A.I.R. 1985 Pat. 38 [: 1984 PLJR 908 ]. In paragraph 15 of the judgment it was observed and held as follows: "15. Once that is so, learned counsel for the respondents was right in urging that not only was Section 32B mandatory but, in essence, it obliterates and wipes-off what had been done earlier and inevitably things could not be left in a vacuum but have to be redetermined. The earlier proceedings, even though in accordance with the old law (barring those which were protected) were rendered nugatory and a fresh decision obligated on the basis of the changes designedly made in the law. Therefore, a true construction of the words "be disposed of afresh" is itself a mandate that the earlier disposal of the cases is virtually nullified. To put it in a metaphor, it wipes-off the writing on the slate leaving it clean to be written afresh. Viewed from another angle, Section 32B is itself a statutory setting aside of the previous determination. The submission that even though the final publication of draft statement under the unamended Section 11(1) after the 9th of April, 1981 would be contrary to the Statute, it should be allowed to hold the field till it is set aside by way of appeal, revision or quashing, appears to me as contrary to the very gist of this law. It would be sanctifying a multiplicity of proceedings by way of individual challenge and setting aside of a determination wholly without jurisdiction when the section itself says that the earlier proceedings are obliterated and the matter is to be decided afresh. It would be sanctifying a multiplicity of proceedings by way of individual challenge and setting aside of a determination wholly without jurisdiction when the section itself says that the earlier proceedings are obliterated and the matter is to be decided afresh. In a way Section 32B, in order to avoid multiplicity of proceedings, has, by the fiat of the law itself, wiped out the proceedings under the old law and directed their re-determination in accordance with the new law. The submission that orders or actions passed or taken illegally under the old law should be individually got set aside by the tortuous process of appeal, revision or review does not at all commend itself to me". 5. It is thus beyond any controversy that the proceedings that lay before the Sub-divisional Officer after its remand by the Board of Revenue got abated by operation of law on 9.4.1981 when the provision of Section 32B came into force by promulgation of Ordinance No. 66 of 1981. The Sub-divisional authority was perhaps not unconscious of this development. He, therefore, prepared a fresh notification under section 10(2) of the Act as is evident from the order dated 20.11.1983. He was, however, apparently completely unaware of the consequences of abatement and his statutory obligation to proceed afresh on a clean slate. 6. It appears that the landholders filed their objections to the draft statement under section 10(3) of the Act which finally came to be disposed of by order dated 20.11.1983. We have gone through this order quite carefully more than once. It is a strange and curious order in that it does not contain a single line indicating an independent application of mind by the authority on the objection filed by the landholder against the draft statement. On the contrary, every passage of the order begins with reference to the earlier orders, passed either by the previous D.C.L.R., or by the Collector at the appellate stage, in the previous round of the proceeding (that got abated on 9.4.1981). The order passed by the Sub-divisional Officer on 20.11.1983, far from meeting the requirements of Section 32B of the Act, does not even satisfy the requirement of passing a fresh order after remand. 7. The Supreme Court in Smt. Kausalya Devi Bogra and Ors. The order passed by the Sub-divisional Officer on 20.11.1983, far from meeting the requirements of Section 32B of the Act, does not even satisfy the requirement of passing a fresh order after remand. 7. The Supreme Court in Smt. Kausalya Devi Bogra and Ors. V/s. Land Acquisition Officer, Aurangabad and Anr., A.I.R. 1984 SC 802 made the following observations with regard to a judgment passed by the High Court on remand by the Supreme Court: "5. Having read the judgment of the High Court and considering the manner in which the first appeals have been disposed of, we have no doubts in our mind that the High Court exceeded its jurisdiction in dealing with the first appeals. This Court in exercise of appellate powers vested in it under Art. 136 of the Constitution had set aside the Bench decision of the High Court delivered in 1971 and that judgment for all intents and purposes had become non-existent. The present Division Bench of the High Court was not entitled, by any process known to law, to resurrect that judgment into life." 8. We have, therefore, no hesitation in holding that viewed from any angle the order, dated 20.11.1983 passed by the Sub-divisional Officer, Bhabua by which he rejected the objections filed by the landholder under section 10(3) of the Act was completely illegal and suffered from an error of jurisdiction. That being the position the proceeding had a completely unsustainable basis and all subsequent orders passed by the Collector, the Board of Revenue and the writ court must, therefore, fall to the ground. On this score alone we find that this appeal is fit to succeed. The orders passed by the writ court and those of the three statutory authorities are set aside. This appeal and the writ petition from which it arises are allowed. The matter is remitted to the court below for proceeding in the matter afresh, in accordance with law.