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2008 DIGILAW 878 (PAT)

Dulari Devi v. State Of Bihar

2008-07-08

NAVANITI PRASAD SINGH

body2008
Judgment 1. These two writ petitions are by different family members being children of Late Ram Lagan Mandal the common ancestor. CWJC No. 4403 of 2005 is by two daughters and one grand daughter from the third daughter of Late Ram Lagan Mandal. CWJC No. 4404 of 2005 is by children and grand children of Late Ram Lagan Mandal. 2. Sri Arun Prasad Ambastha, learned counsel in support of the writ petition has raised a very fundamental question. He submits that on the appointed day, i.e. 9.9.1970 Ram Lagan Mandal had died intestate living behind six sons and four daughters. There were on the said appointed day large number of sons, grandsons (adult members). This fact was brought to the notice of the Collector in the ceiling proceedings. The Collector called for a report from the Circle Officer, which was submitted, which is part of Annexure- 3. In the said report, the Circle Officer clearly on verification admitted about 20 adult members in the family on the appointed day, and on the appointed day the family properties had not been partitioned. Therefore, he submits that all the agricultural lands of the entire family of Late Ram Lagan Mandal had to be clubbed together and then the ceiling units entitlement worked out not on basis of the share of the members in the family property but on basis of the number of adult members in the family. This in the present case as per the report of the Circle Officer as on appointed day would be 20, if that be so, then on the appointed day the family would be entitled to 20 units. Separate proceedings against individual members were itself unauthorized. Adult members, who died between the appointed day and the order of Collector, could not be excluded. He submits that if this legal obligation and ligal right under the Act is kept in mind then the family being entitled at least 20 units not one inch of the family land could be declared ceiling surplus as their entitlement would be almost 800 acres far more than about 300 acres held by them. Prima facie, this appears to be correct. 3. Learned counsel for the State submits that if a person makes a claim then the Collector has to consider that claim and cannot go beyond that. Prima facie, this appears to be correct. 3. Learned counsel for the State submits that if a person makes a claim then the Collector has to consider that claim and cannot go beyond that. For example, if a person in law entitled to 5 units but if he has laid claim only to 3 units the Collector cannot in law grant 5 units. Therefore, what is material is what the claim is made by different family members of the family of Late Ram Lagan Mandal. 4. In my view, this is not a correct position in law. The correct position is that irrespective of the claim made by a party whether more or less than his legal entitlement, the Collector is a statutory functionary to implement a law and bound by legal provisions. He will have to grant the entire legally entitled units irrespective of claim. For example, if claim is of three units but legal entitlement is of 5, the Collector in law would be bound to grant 5 units. If claim is of 7 units entitlement is of 5, the Collector can only grant 5 units. From this, it would be seen that the Collector is not bound by the claim made by a party but has to implement a law as it is on the facts, as the facts placed before him. 5. In my view, every authority right from the original authority to the Member Board of Revenue has proceeded entirely on a wrong legal footing. The position in law having been indicated above, I deem it fit and proper to set aside all the impugned orders and remand the matter to the Collector, Purnia for a fresh consideration in Ceiling Proceeding No. 1080 of 1973-74. The Collector would ascertain the number of adult family members as on the appointed day i.e. 9.9.1970. The total land available in the family of Late Ram Lagan Mandal as on 22.10.1959, as reduced by legitimate transfers up to 9.9.1970, would have to be added and then each adult member surviving as on 9.9.1970 would be entitled to one unit each, irrespective of his position in the genealogy and after this the surpluses would be worked out. The total land available in the family of Late Ram Lagan Mandal as on 22.10.1959, as reduced by legitimate transfers up to 9.9.1970, would have to be added and then each adult member surviving as on 9.9.1970 would be entitled to one unit each, irrespective of his position in the genealogy and after this the surpluses would be worked out. While doing so this exercise as Ram Lagan Mandal died in 1962 intestate, shares of daughters whether married or not of Ram Lagan mandal would have to be excluded to arlive at available land. 6. In my view, as the matter was of large land and is to restart and parties being alive of the position, expeditious steps would be taken to conclude the matter. Six months time would be a reasonable time for the Collector, Purnia to conclude the matter. Till such time the exercise is completed, as orders earlier passed have been set aside, the notifications issued in terms of Section 11 or Section 15 would not be acted upon in relation to any of the family members of the Late Ram Lagan Mandal. 7. Let a copy of this order be given to learned counsel for the State for immediate communication to the authorities. 8. All the parties to the proceedings would appear befqre the Collector of the district on the 28th of July, 2008 and parties to the writ petition would ensure representation by other members of the family as well. The Collector would then proceed in the matter in accordance with law thereafter. 9. The writ petitions are, thus, disposed of.