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2007 DIGILAW 938 (PAT)

Jagannath Singh v. State Of Bihar

2007-05-14

AFTAB ALAM

body2007
Judgment Aftab Alam, J. 1. Heard Addl. Advocate General No. Ill on behalf of the State. No one appears for the petitioner. 2. This writ petition was filed challenging the order, dated 7.2.1989 passed by the Collector, Purnea in C.A. No. 51 of 1982. By the impugned order the Collector in exercise of the powers under section 45B of the Bihar Land Ceiling Act reopened the proceedings of Land Ceiling Case No. 102 of 1974-75 earlier held against the petitioner. 3. In order to dispose of this matter it is not needed to go into the detailed facts of the case. Suffice if to note that earlier Land Ceiling Case No. 102 of 1974-75 was held against the petitioner and his elder brother Jagdish Pd. Singh (since deceased). In that case final order under section 10(3) of the Act was passed by the D.C.L.R. Araria on 23.3.1978 holding the land holders were entitled to four units and further that the total land held by the land holders was within the units allowed to the family. It was in that back ground that the Collector passed the order for reopening the case in exercise of the powers under section 45B of the Act. 4. It may here be noted that by amending Act 55 of 1982 large scale amendments were introduced in the Ceiling Act. The amendments included the insertion of sections 32A and 32B as a result of which all proceedings pending at different stages were abated in order to start afresh from the stage of preparation of draft statement under section 10(1) of the Act. Section 32B which is relevant for the present is as follows: "32-B. 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." 5. It, however, appears that in view of the order passed by the D.C.L.R. holding that there was no surplus land in the hands of the land holders and closing the case against them, the Collector assumed that the proceeding was no longer pending and the matter was, therefore, not covered by the newly introduced section 32B of the Act. For that reason, presumably, he took recourse to section 45B to reopen the proceedings. The Collectors assumption was clearly erroneous and unfounded. The proceeding initiated against a land holder would conclude only on the final publication of the statement in terms of section 11(1) and its copies being sent to the authorities as provided under sub-section (3) of section 11, as it stood at the material time, before its amendment by amendment Act 55 of 1982. 6. Here it may be pointed out that though section 11 too underwent certain amendments by amendment Act 55 of 1982, the position remained unaltered on the point that a final publication under section 11 was required to be made even in cases where by order passed under section 10(3) of the Act the land holder was found not to hold land in excess of the ceiling area. 7. A direct decision on the point is to be found in Smt. Jyotsna Devi and Anr. V/s. State of Bihar and Others, 1992 2 PLJR 702. In paras 5 to 7 of the decision it was observed and held as follows: "5. Mr. Y.V. Giri, learned counsel appearing for the petitioners, submitted that in view of the order, as contained in Annexure 2 to the writ petition, no proceeding was pending against the petitioners and, therefore, re-opening of the proceeding under section 32-A or under section 32-B of the Act was wholly without jurisdiction. Section 32-B of the Act reads as follows: "32-B. Initiation of fresh proceeding. Section 32-B of the Act reads as follows: "32-B. 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." Under the said provision it would appear that all proceedings other than those referred to in section 52-A pending on the date of commencement of the Bihar Act 55 of 1982 and in which final publication under sub-section (1) of section 11 of the Act had not been made, had to be disposed of afresh in accordance with the provisions of section 10 of the Act. The petitioners have nowhere stated in the petition that final publication under sub-section (1) of section 11 of the Act had already been made in the proceeding before taking up the proceeding in question afresh. 8. Learned counsel for the State in this regard has referred to Annexure 2 to show that it was not a final order inasmuch as there was no order passed for final publication of the draft statement in the Official Gazette of the district. Moreover, nothing has been produced by the petitioners to show that a copy thereof was duly certified by the Collector in the prescribed manner and sent to the land holder by registered post with acknowledgement due. Thus, it was submitted by Mr. Alam that under section 32-B of the Act a fresh proceeding was taken up in accordance with the provisions of section 10 of the Act and the land holder filed objection also which was duly considered and the order as contained in Annexure 5 was passed. Learned counsel also submitted that, there being no illegality in the proceeding, this Court will refrain from interfering with the orders impugned. I find substance in the submission of the learned counsel for the State. Learned counsel also submitted that, there being no illegality in the proceeding, this Court will refrain from interfering with the orders impugned. I find substance in the submission of the learned counsel for the State. From the facts, as stated in the writ petition, it cannot be held that no proceeding was pending against the petitioners and that there was final publication made under sub-section (1) of section 11 of the Act, which could prohibit disposal of the proceeding afresh under section 32-B of the Act. 9. It was then submitted on behalf of the petitioners that re-opening can only be in a case where there is fresh material and not merely for verifying the correctness of the findings already arrived at. Further, it was submitted that once unit had been granted, then it cannot be altered except in appeal. In support of these submissions learned counsel relied on the decisions reported in Shiv Shankar Prasad Singh and Others V/s. The State of Bihar and Others, 1982 0 PLJR 331 and Dwarika Singh V/s. The State of Bihar and Others, 1977 0 BBCJ 696 . In my opinion, none of these submissions is sustainable in the facts of the present case inasmuch as it is not a case of re-opening of a proceeding under section 45-B of the Act, the scope of which was under consideration in the aforementioned decision of Shiv Shankar Prasad Singh (supra). In fact, it is a case of disposal of the proceeding afresh under section 32-B of the Act and not of re-opening of a proceeding under section 45-B of the Act and as there was no final publication under sub-section (1) of section 11 of the Act, the proceeding was pending on the date of commencement of Bihar Act 55 of 1982 and all such proceeding had to be disposed of afresh in accordance with the provisions of sub-section (3) of section 10 of the Act." 10. On behalf of the State it is not shown that after the order, dated 23.3.1978 passed by the D.C.L.R., Araria the necessary follow up actions were taken and a final publication of the statement was made under section 11(1) and copies of the final statement were sent to the authorities concerned as required by law. On behalf of the State it is not shown that after the order, dated 23.3.1978 passed by the D.C.L.R., Araria the necessary follow up actions were taken and a final publication of the statement was made under section 11(1) and copies of the final statement were sent to the authorities concerned as required by law. The only conclusion would, therefore, be that the proceeding had not concluded and it was fully covered by the provisions of section 32B of the Act. In those circumstances it was obligatory upon the authorities to start afresh from the stage of section 10(1) of the Act in terms of section 32B and the exercise of power under section 45B of the Act was wholly unwarranted and uncalled for. 11. For the reasons discussed above the impugned order is clearly unsustainable. It is set aside. 12. In the result, this writ petition is allowed but subject to the above observations.