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2008 DIGILAW 253 (PAT)

Mukul Jha v. State of Bihar

2008-02-05

body2008
ORDER In this writ application, the petitioner has made the following prayers:– 1. That in this writ application, the petitioner is challenging the illegality, arbitrary and high-handed action of the Respondents in giving possession of land in respect of which, the purchas issued long back that were subsequently modified by the Hon'ble Member of the Board of Revenue and subsequently sanctified by the Hon'ble High Court and accordingly petitioner prays for quashing of the order, dated 9.6.2006, passed by Hon'ble Land Reforms Deputy Collector (hereinafter LRDC), Madhubani, in Misc. Ceiling Purcha Case No. 02/05-06 as well as the order, dated 4.9.2006 passed by Hon'ble Collector of the District Madhubani in Misc. Ceiling Case No. 02/06-07, upholding the said order and beseech for appropriate direction to allow the petitioner to retain the land as per their option as directed by the Hon'ble Revisional Court and Hon'ble High Court with the grant of such other reliefs for which petitioner is found entitled in the eye of law. 2. That the petitioner specifically and candidly prays for following relief/s:– (i) That the order (Annexure-2), dated 9.6.2006 of the Land Reforms Deputy Collector, Madhubani, passed in Misc. Land Ceiling Purcha Case No. 02/05-06 as well as Appellate Order (Annexure-13) dated 4.9.2006, passed by the Hon'ble Collector of the District of Madhubani in Misc. Ceiling Case No. 02/06-07, be quashed as being illegal, incompetent and without jurisdiction. (ii) That the purchas distributed to landless persons in respect of the land which ought to have been modified/corrected in view of the option exercised by the petitioner by directed to be modified and corrected and then only the possession of the land be given to purcha holders. (iii) That an appropriate writ or direction be issued to respondents to issue fresh notification u/s 15(1) of the Act taking into account the objection of the petitioner. (iv) That respondents be desisted from enforcing the illegal purcha of 1989 which has no leg to stand in the eye of law. (v) That any other reliefs may be granted to the petitioner for which he found entitled in the eye of law. (vi) That during pendency of this writ petition, respondents be directed to restrain to illegal purcha holders in disturbing the peace and tranquility of the society in local area. 2. (v) That any other reliefs may be granted to the petitioner for which he found entitled in the eye of law. (vi) That during pendency of this writ petition, respondents be directed to restrain to illegal purcha holders in disturbing the peace and tranquility of the society in local area. 2. The admitted fact is that a land ceiling proceedings came to be initiated against the father of the petitioner and therein upon considering the objections filed by the then landholder, an order was passed under Section 10(3) of the Act on 28.12.1986. As against the aforementioned order and the notification under Section 11 of the Act, an appeal was preferred by the landholder which was also disposed of by an order dated 25.5.1992 under the order of the Collector of the district. The matter thereafter came before the Board of Revenue and the Additional Member, Board of Revenue by order dated 26.1.1993 had affirmed the findings in the order of the Deputy Collector Land Reforms and the Collector of the district passed under Sections 10(3) and 11 of the Act respectively. It is, however, significant to note here that Additional Member, Board of Revenue in the concluded portion of the order which give liberty to the petitioner to exercise the option within one month of the date of the order i.e. by 20th July, 1993. 3. It appears that the petitioner did not/could not exercise the option within a period of one month as originally given to him under the order of the Additional Member, Board of Revenue and he came to this Court in CWJC No. 10297 of 1993 wherein this Court while upholding the order of the three authorities i.e. the Deputy Collector Land Reforms, Collector of the district and the Additional Member, Board of Revenue, all of the authorities had directed that the option which was given by the petitioner during the pendency of the writ application on 22.11.1993 should De accepted and given effect to. At this stage, it would be also significant to keep in mind that Mr. At this stage, it would be also significant to keep in mind that Mr. Ajay, learned Standing Counsel (Ceiling) has produced the record from which it is absolutely apparent that the landholder under the signature of one Amarnath Jha on 28.11.1993 had submitted option of 90 acres and this option was taken into account while issuance of the only notification under Section 15(1) of the Act for the purposes of acquiring the surplus land. In this context, one may also refer to the order sheet of the ceiling proceedings from which it would be clear that after the order of this Court dated 16.1.1995 directing the authorities to accept the option exercised by the petitioner was passed, an order came to be passed by the authorities on 30.9.2005 whereby and whereunder the earlier notification under Section 11 (1) of the Act was sought to be revised in terms of the option exercised by the petitioner. This can be safely found in the order dated 30.9.1995 of the Deputy Collector Land Reforms, Madhubani. 4. From a perusal of the order dated 8.11.1995 it appears that after the landholder had submitted the list of land of 90 acres by way of option, another attempt was made to change the option and accordingly by way of last indulgence, the Deputy Collector Land Reforms had also given 15 days' time for making an appropriate change in the option to be exercised by the landholder. From the order dated 28.11.1995 it also transpires that a revised option was submitted by the landholder on 28.11.1995 and thereafter steps were taken for final publication under Section 11 of the Act. 5. It however appears that when everything was completed and now only a notification under Section 15 of the Act was to be made for the purpose of acquiring the surplus land to the tune of 62.93 acres of land, an attempt was made on the part of the landholder by again filing another appeal which was deprecated and rejected by the competent authority being the Collector of the district. The landholder was not satisfied and again came to this Court in CWJC No. 1898 of 1998 wherein this Court after considering all aspects of the matter had come to the following conclusion:- "From the pleading made by the petitioner and the enclosures attached to the writ petition (including Annexure-3), it will be evident that the only issue which has left open to the petitioner related to grant of option, after disposal of the writ petition C.W.J.C. No. 10297 of 1993. Therein, this Court directed that the option given by the petitioner in pursuance to the order dated 21st June, 1993 should be accepted and given effect in accordance with law. Such order of this Court having complied and option having been allowed on 30th September, 1995, according to me, the petitioner should not have preferred any appeal against the same nor the Collector should have passed any order of remand for re-deciding the issue already decided. For the reasons stated above, I set aside, the order dated 13th February, 1997 and affirm the order dated 30th September, 1995 relating to option. However, this order will not stand in the way of the respondents to proceed in the matter in accordance with law." 6. The intention of the landholder petitioner however was still to keep the matter pending and that is why after the order dated 4.8.1998 was passed by this court yet another attempt was made by the petitioner by suppressing the said order of the High Court, dated 4.8.1998 passed in CWJC No. 1898 of 1998 to get the proceedings reopened on various grounds. This was however not allowed by the authorities and the Collector of the district by order dated 24.12.2002 had held that the two writ application and one LPA being LPA No. 104 of 1995 having been dismissed by the High Court, there was nothing that was still left to be decided for the landholder and accordingly the proceedings was to be culminated by acquiring the surplus land. 7. 7. That again was not however the end of the case of the landholder who now again moved to the Deputy Collector Land Reforms, Madhubani by filing two applications dated 7.4.2003 in which it was stated that the landholder should be given exemption of 120 acres by way of an additional unit as also exemption for a family diety and further that 7.675 acres of land which have been acquired by the State under the land ceiling proceedings should be now transferred to the remaining land to be acquired by the State under the ceiling proceedings. Certain more objections like double inclusion of the land for 3.395 acres and 6.96 acres of land were also raised in this objection petition, dated 7.4.2003 and the Deputy Collector Land Reforms ultimately after hearing the parties had passed an order dated 23.12.2003 holding that the entire proceedings had come to an end and in the event when the family was entitled only to two units, the authorities in view of the findings recorded by the High Court that they were entitled to three units were not required to reopen the issue and thereafter after allowing 90 acres of land, no other objection was to be entertained afresh and therefore, the final publication under Section 15(1) of the Act should be made so that the declared surplus land to the tune of 62.93 acres could be acquired from the landholder. 8. The audacity of the petitioner however knew no limit. Accordingly, this order of the Deputy Collector Land Reforms dated 23.12.2003 became the judgment matter of an appeal before the Collector of the district being Appeal Case No. 1/04-5 which was ultimately rejected on 14.3.2005. It was only after all this that on 9.5.2006 a gazette notification under Section 15(1) of the Act for acquiring 62.93 acres of land of the petitioner was issued and when this notification was made, the petitioner had again objected the acquiring of the land as per Section 15(1) of the Act on the ground that some of the lands that has been sought to be acquired were sought to be retained by him in the option exercised by him. Curiously, the Deputy Collector Land Reforms passed an order on 9.6.2006 that such claim for option for the land in question for which the grievance was being made by the landholder could not be allowed due to failure on his part to raise the same at the relevant point of time. 9. Counsel for the petitioner while assailing the said order dated 9.6.2006 had submitted before this Council that actually at no point of time an option was ever exercise by the landholder and for this purpose he had referred to the observation made in the order dated 9.6.2006. It was in this background also submitted that the option in terms of the order of this Court dated 16.1.1995 passed earlier the petitioner's land could not be made subject matter of a final publication under Section 15(1) of the Act inasmuch as the petitioner may yet to be given an opportunity to exercise option. 10. It was also contended that during the pendency of the ceiling proceeding, the land of the petitioners were distributed in the year 1989 and therefore, all those purchas should also be cancelled because some of the purchas granted are against the option of land to be retained by the petitioner and inasmuch as the landholders are entitled to keep an area of 90 acres in view of the finding in concluded ceiling proceedings. It has been further contended that in the name of acquiring 62.03 acres of land, the State has acquired near about 100 acres of land in this proceedings. 11. It has further been submitted that the authorities under the Act being acted with impugnity during the entire ceiling proceeding inasmuch as the lands of the petitioner were distributed in 1989 itself even without their being any notification under Section 15(1) of the Act. 12. On the other hand, Mr. Ajay appearing on behalf of the State had submitted that this Court should not give any further indulgence in this ceiling proceeding which has a very cheque red career inasmuch as even when the whole proceedings came to a grinding halt at least on 16.1.1995 even then the landholder including the petitioner did not desist from abusing the process of court for continuining with the possession of the land which ought to have been surrendered in view of the finding of fact arrived by the three authorities as affirmed by this Court. 13. 13. He has further submitted that the petitioner cannot be heard to say that the exercise of option as allowed by this Court in the order dated 16.1.1995 was not exercised and in this context, he has also referred to the original document on record being the list of option of land of 90 acres dated 22.11.1993 as well as the revised option application filed on 28.11.1995. He had further submitted that not an inch of land has been shown to be surplus which is not covered by the two options as exercised by the landholder on 22.11.1993 and 28.11.1995. He further submits that there is no question of acquiring even an inch of land more than what was declared to be surplus i.e. 62.93 acres. As with regard to the quashing of the purchas, the submission of Mr. Ajay is two-fold that first of all no specific name of the persons against whom purchas were issued has been mentioned and further that the bare reference of some of the purchas as shown in Annexure-15 series may not be sufficient for going into this aspect because the persons who would be affected by cancellation of these purchas have not been made party to this proceeding. 14. Having hearing counsel for the parties at great length, this court is of the view that this application is fit to be dismissed with exemplary cost on account of abusing the process of this Court on making repeated attempt to get a favourable order despite the fact that the ceiling proceedings had already come to an end by order of this Court dated 16.1.1995. 15. The records of the land ceiling case produced by the learned Standing Counsel (Ceiling) would itself go to show that initially Land Ceiling Case No. 52 of 1978-79 was initiated against Mostt. Rajeshwar Bahuasin wife of Balbhadra Jha as well as Amarnath Jha and Durganand Jha, both sons of Balbhadra Jha. 15. The records of the land ceiling case produced by the learned Standing Counsel (Ceiling) would itself go to show that initially Land Ceiling Case No. 52 of 1978-79 was initiated against Mostt. Rajeshwar Bahuasin wife of Balbhadra Jha as well as Amarnath Jha and Durganand Jha, both sons of Balbhadra Jha. The proceedings in terms of Section 5(1)(iii) and Section 10(2) of the Act having been not culminated, a fresh draft notification under Section 10(2) was issued and the order dated 28.12.1988 will go to show that two objections filed separately by the two wings of the family were disposed of wherein three units were given to the branch of Balbhadra Jha and three units were given to the branch of Durganand Jha and remaining 137.211 1/2 acres of land were shown to be surplus. The order dated 28.12.1988 under Section 10(3) of the Act would also reveal that in the branch of Rajeshwar Bahuasin, 62.93 acres of land were declared fit to be acquired after allotting 90 acres of land for the three units. In fact, the order dated 23.1.1989 will further go to show that a draft notification under Section 11 (1) of the Act was also prepared showing total land held by the landholder to be 159.91 acres, the land permissible to be exempted with three units to be 96.985 acres and excess land to be acquired under Section 15 of the Act to be 62.93 acres. Thereafter, though there is clear indication that a publication under Section 11 (1) of the Act declaring 62.93 acres as surplus land was issued as is record in the order dated 31.1.1989, it appears that the notification under Section 15(1) of the Act was also issued. 16. At this stage, it would be relevant to note here that after the arguments were concluded, Counsel for the petitioner had himself produced a copy of the draft notification dated 31st January, 1989 published in the Madhubani district gazette on 16th February, 1989 wherein the publication under Section 15(1) of the Act has also been made. 16. At this stage, it would be relevant to note here that after the arguments were concluded, Counsel for the petitioner had himself produced a copy of the draft notification dated 31st January, 1989 published in the Madhubani district gazette on 16th February, 1989 wherein the publication under Section 15(1) of the Act has also been made. Thus, the order dated 31.1.1989 in the records get conformed from the copy of the gazette produced by the counsel for the petitioner himself and the whole submission of Counsel for the petitioner that there was no notification under Section 15(1) of the Act and that the first notification under Section 15(1) of the Act came to be issued only subsequently on 9.5.2005 is totally an error of record. In fact it appears that after the Section 11 (1) notification has been issued, the appeal was filed before the Collector of the district and that appeal was disposed of by an order dated 25.5.1992 under the orders of the Collector, Madhubani. After the dismissal of the appeal, the landholder/petitioner again carried the matter to the Board of Revenue by filing revision case no. 124 of 1992 which also got dismissed on all scores save and except that it was observed by the Additional Member, Board of Revenue that the authorities below will allow the petitioner to exercise the right of option within one month from the date of order. It may be noted that though the petitioner before the Additional Member, Board of Revenue as well as the appellate authority has specifically raised the issue of non-publication of draft notification after abatement of the proceeding under Section 32B of the Act as well as the issue of exemption under Section 29 of the Act, both the issues were decided against the landholder-petitioner by the Additional Member, Board of Revenue in its order dated 21.6.1993. This acquires importance in view of the fact that the order of the Additional Member, Board of Revenue dated 21.6.1993 in the revision case no. This acquires importance in view of the fact that the order of the Additional Member, Board of Revenue dated 21.6.1993 in the revision case no. 124 of 1992 also received approval of this Court in CWJC No. 10297 of 1993 when this Court had upheld the entire order of the authorities under the Ceiling Act as well as the Additional Member, Board of Revenue by disposing of the writ application without touching any of the issues decided by the three authorities and in fact gave only this much of liberty that the option which was exercised by the petitioner during the pendency of the writ application on 22.11.1993 should be accepted in terms of the order, dated 21.6.1993 of the Additional Member, Board of Revenue. This was sufficient to complete the proceedings because the option was exercised and, therefore, all that was to be done was to issue a modified notification under Section 15(1) of the Act, if there was any difference between the lands which was given in the share of the petitioner vis-a-vis the land which they wanted to acquire in view of the option given by the landholder. 17. Surprisingly from here, the whole thing either due to clever attitude of the landholder-petitioner or callous and inefficient attitude of the bureaucracy got into a different shape and the land ceiling proceedings which ought to have received a finality at least in the year 1995 was allowed to linger for more then next ten years and what is still more shocking is that after a notification under Section 15(1) of the Act had already been issued on 31st January, 1989 which was published in the District Gazette on 16th February, 1989, another order was passed on 30.9.1995 for again publishing the land in L.C. Forms 5 and 6 under Section 11 (1) of the Act. This Court fails to understand why, how and in which provision of law, this publication was sought to be made or whether it was the tactical device to delay the proceedings of the land ceiling case. In fact, from 30.11.1995, the proceedings was kept pending and the landholder had the audacity to keep the whole thing reopen as would be apparent from the order dated 24.7.1997. In fact, from 30.11.1995, the proceedings was kept pending and the landholder had the audacity to keep the whole thing reopen as would be apparent from the order dated 24.7.1997. The Collector of the district by an order dated 13.2.1997 had set aside the order, dated 4.12.1993 and 30.9.1995 and had remitted the matter to the Deputy Collector Land Reforms for conducting a fresh proceedings. From 24.7.1991 onwards, the Deputy Collector Land Reforms now started exercising his power and for a period of more than five years when the proceedings was continuing before the Deputy Collector Land Reforms, nothing tangible was done and from the records, it only transpires that as against order dated 13.2.1997, the landholder had moved the High Court in CWJC No. 1898 of 1998 in which this Court had passed an order on 4.8.1998 whereby and whereunder the order of the Collector dated 13.2.1997 had been set aside and it was observed that as the proceeding attained finality under the orders of this Court dated 16.1.1995, the authorities were required to complete it. Unfortunately, even that order of the High Court dated 4.8.1998 had made no impact and the Collector of Madhubani district after keeping the proceedings pending in the name of complying the order of the High Court dated 4.8.1998 for a period of more than four years had passed an order on 24.12.2002 wherein now steps were directed to be taken for substitution of late Amarnath Jha and late Rajeshwari Bahuasin, the two landholders against whom the proceedings were earlier taken to a logical conclusion. It is not that the substitution of the landholders was a final steps and in fact from there onwards, another attempt was made by the landholder to reopen the proceedings in the name of substituted persons who now claimed that the classification of the land should be predetermined and one extra unit should be allotted to the family deity, namely, Ugratara Bhagwati. Further, the same acquired land to the tune of 7.63 acres of land as well as duplication of land of 3.345 acres and the additional 6.96 acres of land were also sought to be raised as is clear from the order dated 23.12.2003. Further, the same acquired land to the tune of 7.63 acres of land as well as duplication of land of 3.345 acres and the additional 6.96 acres of land were also sought to be raised as is clear from the order dated 23.12.2003. This ingenious attempt on the part of the landholder to keep everything unsettled in the land ceiling proceedings was lastly deprecated by the Deputy Collector Land Reforms, Madhubani in his order dated 23.12.2003 who had mentioned these facts in his reasoned order that such an attempt to now get the proceedings reopened in the name of classification, exemption etc. was only to delay the final disposal of the land ceiling proceedings. It is only thereafter that the authorities woke up and again when the appeal against the said order dated 23.12.2003 was also dismissed by an order dated 14.3.2005 that a gazette notification under Section 15 of the Act was made. 18. The whole purpose of narrating and/or giving the detailed facts of the land ceiling case of the petitioner is only to show as to how and in which manner the authorities under the Ceiling Act and the land-holder were able to delay the final disposal of the ceiling case for a period of almost 12 years if not more. In this background when the submission of the Counsel for the petitioner is tested, his submission that order dated 9.6.2006 should be taken to a clear authority on the question of fact that the petitioners were not given the chance to exercise their option, is definitely one submission which has to be viewed-not only cautiously but also with utmost circumspection inasmuch as Counsel for the petitioner ought to have been fair to this Court while making submission that this Court had already recorded in the order dated 16.1.1995 that the option by the petitioner-landholder had already been exercised. Thus, on 16.1.1995 while the Counsel for the petitioner was only asking for a compassion that the delayed submission of the option of land should be accepted, there was a complete U-turn by the Counsel for the petitioner in the present proceeding by saying that no option at all was exercised and that led to a specific order by this Court being order dated 30.10.1997 for filing affidavit as to whether option as stated in the counter affidavit was exercised by the land- holder or not? 19. 19. Counsel for the State in fact has now filed a counter affidavit explaining each and every aspect which goes to show that after the notification under Section 15(1) of the Act already been issued in the year 1989, though there was no need for it in view of Section 15(1) notification having been issued way back in the year 1989, the distribution of land was made and the purcha holders made a complaint to the Deputy Collector Land Reforms that they were not being allowed to take possession of the land by the landholder. It was in these circumstances when notices were issued to the petitioners-landholder, that the land holder had taken a stand that they were not allowed to exercise option and, therefore, the land which were given to the purcha holders ought to be given back to them in view of the order of the Additional Member, Board of Revenue in the year 1993 as confirmed by the High Court in the year 1995. Apparently, such attitude of the landholder was not entertained by the Deputy Collector Land Reforms leading to rejection of the prayer of the petitioner on 9.6.2006 and which was also approved by the Collector of the district on 4.9.2006. 20. In background of the aforementioned facts, when the prayer in the present writ application is examined, it is found that those distribution of land which were made in terms of Section 15(1) of the Act in the year 1989 or thereafter have been sought to be questioned after almost 18 years in this writ application and even then the landholders have not cared to make any persons party to the proceedings nor they have disclosed the extent of such land which have been distributed amongst the landless harijans. Mr. Chandra Shekhar, learned Senior Advocate appearing on behalf of the petitioner in fact removed firm to his stand that he was not aware that among whom, those lands were distributed and in fact he was initially of the view that such a distribution made without publication of notification under Section 15(1) of the Act was itself bad. Subsequently, after this Court had probed the issue. Counsel for the petitioner sought time to bring on record a gazette notification dated 1.6.1998 and its production went to show that Section 15(1) notification were made in the year 1989 itself. Subsequently, after this Court had probed the issue. Counsel for the petitioner sought time to bring on record a gazette notification dated 1.6.1998 and its production went to show that Section 15(1) notification were made in the year 1989 itself. Thus the entire prayer of the petitioner in the writ application is found to be totally misconceived. 21. It is amazing that for such misconceived prayer, the petitioner had also suppressed the vital fact of giving option in the year 1993. It is again unfortunate that the petitioner did not inform this Court that the earlier order of this Court dated 16.1.1995 had already concluded the whole proceedings and that the landholder petitioner had no business to question the 15(1) notification unless he had shown that option was never exercised allowed to be reopened by him. The petitioner in fact in the entire writ petition has nowhere mentioned that the option in terms of the order of this court dated 16.1.1995 has already been exercise by him. He has again nowhere mentioned that as to what portion of land in the impugned Section 15(1) Notification is required to be kept in his share. Such vague pleadings in fact cannot allow the petitioner to even maintain this writ application for the reliefs which have been made in this writ application. 22. That apart, the authorities having acted as per the notification under Section 15 of the year 1989, had made distribution of land and, therefore, once this Court has come to a conclusion that no portion of that order is bad, thereto being earlier two writ petitions decided by his Court in this fresh proceedings the entire notification under Section 15(1) of the Act cannot be quashed and the land which has already been allotted to the purcha holders cannot be now sought to be reverted back to the petitioners. It remains a fact that those land will remain excess land as the ultimate conclusion of the excess land has not been disturbed. In such a situation, this Court finds it difficult to disturb the allotment of land to the landless persons and, therefore, the prayer for cancellation of purchas granted to the persons who have been given the excess land of the family of the petitioner cannot be entertained and the same is hereby rejected. 23. In such a situation, this Court finds it difficult to disturb the allotment of land to the landless persons and, therefore, the prayer for cancellation of purchas granted to the persons who have been given the excess land of the family of the petitioner cannot be entertained and the same is hereby rejected. 23. The option having already given in the year 1993 and a fresh notification having been issued in the year 2005 and there being no grievances as with regard to any particular plot in the 2005 notification by the petitioner, even that prayer that the petitioner-landholder should be allowed to retain land as per their choice is fit to be rejected because the option exercised has already become final. This Court therefore cannot disturb even that part of Section 15(1) notification. 24. However, by way of abundant precaution, the petitioner is given this much of liberty that if any of the land for which it had already exercised any option in the year 1993 has been included in the excess land to be acquired but has not been actually distributed to any person, the Collector of the district to this extent shall examine the 15(1) notification and in case any of such land which can be exchanged by allowing him to keep under his share and given the equal amount of land which have not been distributed can only be allowed to be retained by the petitioner. This court would like to make it clear that in case the entire excess land has already been distributed as shown in 15(1) notification, the matter will not be reopened and must rest there. 25. With the aforementioned observations and directions, this writ application is dismissed with an exemplary cost of Rs.5,000/- to be paid by the writ petitioner to the Collector of Madhubani district for misusing the process of law. In case, this amount of Rs. 5,000/- is not paid by the petitioner within a period of six months, the Collector of the district shall be at liberty to realize the same in accordance with law.