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2008 DIGILAW 33 (JHR)

Rama Ballabh Upadhyaya v. State Of Bihar

2008-01-16

R.K.MERATHIA

body2008
ORDER R.K. Merathia, J. 1. Heard the parties finally. 2. In spite of notice, no one has appeared on behalf of respondent No. 6. 3. Petitioners have challenged the order dated 19.4.2004, passed by the Member, Board of Revenue in Revision Case No. 7/2000 and also the final publication of draft statement made on 3.1.2000 under Section 11(1) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, (hereinafter referred to as the Act), pursuant to the order dated 17.7.1996, passed by the Additional Collector (Land Ceiling), Palamau in L.C. Appeal No. 10/1993-94, upholding the order dated 26.12.1993, passed by the Deputy Commissioner Land Reforms (DCLR), Palamau in L.C. Case No. 6/1973-74. 4. In view of the order, I intend to pass, it is not necessary to narrate the facts in detail. According to the petitioner, the original land holder- Tapeshwari Pandey executed a registered deed of gift on 18.4.1963 in favour of his four Natis namely the petitioners. The said deed was executed within the grace period of 18.3.1962 to 18.4.1963 as notified under the Act. 103.56 acres of land were gifted to the petitioners, which was accepted by them and they were coming in possession and were paying rent to the State under rent receipts. Their names were recorded in the Raiyati Khatiyan. Earlier L.C. Case No. 106/1968-69 was instituted against the said land holder-Tapeshwari Pandey, in which verification report was submitted by the Circle Officer showing that the land holder held only 105 acres 30-1/2 decimals of land, out of which, he gifted 91.09 acres of land to the petitioners leaving only 14 acres and 21-1/2 decimals of land. The land holder submitted that he held only 30.71 acres of land. Accordingly, by order dated 19.10.1971, the D.C.L.R. dropped the proceeding saying that the land holder did not hold land in excess of ceiling area (Annexure-5). No appeal or revision was filed against the said order and therefore it became final and binding on State. Again L.C. Case No. 6/1973-74 was reinitiated against the said land holder. Under Section 45-B of the Act, only the Collector of the District could reinitiate/reopen the case. The land holder filed objection saying that he had gifted 103.56 acres of land to the petitioners by the said gift deed. Petitioner also filed application for excluding the said land covered by the gift. Under Section 45-B of the Act, only the Collector of the District could reinitiate/reopen the case. The land holder filed objection saying that he had gifted 103.56 acres of land to the petitioners by the said gift deed. Petitioner also filed application for excluding the said land covered by the gift. The D.C.L.R. heard the parties and ordered on 26.12.1993, for final publication of draft statement under Section 11(1) of the Act. The mother of the petitioners Ram Swami Devi was allowed to retain only 45 acres of land for one unit. The D.C.L.R. did not consider the aforesaid order passed by the then D.C.L.R. on 19.10.1971, under which proceeding was dropped on the basis of the gift deed. The mother of the petitioners filed an appeal being L.C. Appeal No. 10/1993-94, One Ram Shanker Pandey filed objection saying that he was allotted his share in Partition Suit No. 3 of 1936 and as such the lands in question do not belong to the land holder and therefore, it should be excluded from the list of the land holder. The said objection was allowed and it was ordered that his share may be excluded from the land shown by the land holder. By order dated 17.7.1996, the Additional Collector upheld the aforesaid finding of the D.C.L.R. that the said deed of gift was a Jarzi transaction and it was not acted upon. Pursuant to the said order dated 17.7.1996, final publication of draft settlement was made under Section 11(1) of the Act by the D.C.L.R. on 24.12.1998. Pursuant thereto, a notice was issued on 3.1.2000 by the Sub-divisional Officer for final publication of draft settlement, a copy of which was received by the petitioners on 11.1.2000 and thereafter they filed a revision before the Member, Board of Revenue being Revision No. 7/2000. The Member, Board of Revenue heard the parties but without considering the case of the petitioners rejected the revision petition on 19.4.2000. Petitioners further contention is that no enquiry has been held and no finding, has been recorded as required under Section 5(1)(iii) of the Act. 5. Mr. Manjul Prasad, learned Counsel appearing on behalf of the State, on the other hand submitted that the earlier L.C. Case No. 106/1968-69 was dropped by the D.C.L.R. on 19.10.1971 inadvertently and wrongly. Petitioners further contention is that no enquiry has been held and no finding, has been recorded as required under Section 5(1)(iii) of the Act. 5. Mr. Manjul Prasad, learned Counsel appearing on behalf of the State, on the other hand submitted that the earlier L.C. Case No. 106/1968-69 was dropped by the D.C.L.R. on 19.10.1971 inadvertently and wrongly. The D.C.L.R. only on the basis of the purported report of Circle Officer and the alleged deed of gift dropped the proceeding without any notice to the State or the land holder. Therefore, the Deputy Commissioner directed the Additional Collector, Sub- divisional Officer to examine the matter. In such enquiry, it was found that the earlier proceeding was wrongly dropped and therefore the same was restarted though with a new number of the case, and thus it is not a case of reopening. He further submitted that petitioners did not produce the alleged original gift deed at any time, nor they could prove that it was acted upon and it was the duty of the petitioners and their mother to satisfy the Court that the deed of gift was a bona fide transaction, which they failed to do. Petitioners lingered the proceedings for about 25 years. They were given sufficient opportunities by the D.C.L.R. in L.C. Case No. 6/1973-74 before the order dated 26.12.1993 was passed. The said order shows that the draft statement was already published under Section 10. Petitioners were absent continuously. They did not file any written objection. Petitioners produced some documents, only on 26.12.1993, which did not conclusively support their case. Thus, order was passed for final publication of draft statement under Section 11(1) of the Act. The appellate authority considered the case of the petitioners and confirmed the said findings of D.C.L.R. by order dated 17.7.1996. The revision was also rightly dismissed by the Member, Board of Revenue as will appear from the order itself. Thus, he submitted that this writ petition be dismissed. 6. I find force in the submission of State counsel that there was no reopening of the case when the case was restarted with a new number being L.C. Case No. 6/1973-74. The order dated 19.10.1971, passed by the then D.C.L.R. is absolutely wrong on the face of it. Thus, he submitted that this writ petition be dismissed. 6. I find force in the submission of State counsel that there was no reopening of the case when the case was restarted with a new number being L.C. Case No. 6/1973-74. The order dated 19.10.1971, passed by the then D.C.L.R. is absolutely wrong on the face of it. Without giving any opportunity to the State, the proceeding was dropped, accepting the report of the Circle Officer and the petition of the land holder as gospel truth. The D.C.L.R. did not record any finding in terms of Section 5(1)(ii) of the Act. In these circumstances, the Deputy Commissioner was justified in getting, the matter enquired as to how the said order of dropping the proceeding was passed and then restarting the proceeding. Only because a new number was mentioned, it cannot be said that the proceeding was reopened. 7. However, as. the revision of the petitioners was dismissed by the Member, Board of Revenue on technical grounds, I am inclined to give a chance of hearing to the petitioners before the Member, Board of Revenue, who can consider the questions of facts and law under Section 32 of the Act. 8. Accordingly, the order dated 19.4.2000, passed by the Member, Board of Revenue in Revision Case No. 7/2000, is set aside and the matter is remitted to the Member, Board of Revenue for passing a fresh order, in accordance with law, after hearing the parties, as early as possible, and preferably within six months from the date of receipt/production of a copy of this order. Petitioners will produce copy of this order before the Member, Board of Revenue within three weeks along with supplementary Revision Petition, if any. Petitioners and the concerned State authorities are directed to co-operate in early disposal of the revision petition. 9. With these observations and directions, this writ petition is disposed of. However, no costs.