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2008 DIGILAW 894 (PAT)

Tulsi Manjhi v. State Of Bihar

2008-07-09

NAVANITI PRASAD SINGH

body2008
Judgment 1. The twelve petitioners challenged Annexure-13, a communication by the Additional Collector to the Circle Officer, Bodh Gaya, dated 8.9.2004 by which he has informed the Circle Officer that the earlier notification dated 21.6.1993 issued in terms of Section 15(1) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 which had earlier declared surplus lands having been set aside, proposal be sent for cancellation of Parwanas issued to various persons (including petitioners) in respect of those lands. 2. The landholder has appeared and filed a counter affidavit. 3. State has filed counter affidavit today but being late is being ignored by this Court even otherwise State has not supported the petitioners. 4. Heard learned counsel for the parties and with their consent this writ application is being disposed of at this stage itself. 5. The petitioners challenge is based on the judgment of the Apex Court in the case of Dadan Ram & Ors. V/s. State of Bihar & Ors., since reported in 2008(1) PLJR 215 (SC) and earlier Supreme Courts decision, as noted therein. 6. It is submitted with reference to the aforesaid judgment that once lands have been declared ceiling surplus and acquired by the State, consequent whereto they are settled to various persons by issuance of parwanas (Settlement orders), then those persons became necessary party in all proceedings and must be heard before the order cancelling declaration of surplus land is passed. 7. In my view, there cannot be any quarrel with the proposition, as submitted by the petitioners, that the petitioners having got Parchas must be heard before they are deprived of their rights, because ordinarily that procedure has to be followed and the same has also been held to be so by the Apex Court as above but before such a right can be demanded as had been found by the Apex Court, it must be shown by the Parcha-holders that they were duly granted Parchas. This I say so because they claimed a legal right to be heard, which would be based on their legal position legally acquired but even if they surreptitiously or illegally or unauthorizedly put on the land then their occupation is not legal rather it is in violation of law and thus illegal. Such person occupying land illegally cannot claim such protection much less of natural justice. Such person occupying land illegally cannot claim such protection much less of natural justice. To appreciate this position one must refer to Section 15 of the Bihar Land Ceiling Act, 1961: "15. Acquisition of Surplus land (1) The State Government or the Collector of the district specially so empowered in this behalf shall after the statement under sub-section (1) of Section 11 has been finally published and subject to appeal or revision, if any, acquire, the surplus land by publishing in the official Gazette of the district, a notification to the effect that such land is required for a public purpose and such publication shall be conclusive evidence of the notice of the acquisition to the person or persons concerned: Provided that without awaiting the result of appeal or revision the State Government or the Collector of the district specially so empowered in this behalf may proceed to acquire such of the surplus land of the landholder in respect of which there is no claim or dispute or which is admitted by the landholder to be surplus: Provided further that a copy of the notification shall also be sent to the landholder concerned by registered post with acknowledgment due. (2) On the publication of the notification under sub-section (1), the land specified in the notification shall, subject to the provisions of this Act, be deemed to have been acquired for the purposes of this Act and vested in the State free from all encumbrances with effect from the date of the notification and all right, title and interest of all persons claiming interest therein shall, with effect from that date, be deemed to have been extinguished. (3) Subject to any order made on appeal or revision the Collector may at any time after the publication of the notification under sub-section (1) take possession of any land specified in the said notification and may for that purposes use such force as may be necessary. (3) Subject to any order made on appeal or revision the Collector may at any time after the publication of the notification under sub-section (1) take possession of any land specified in the said notification and may for that purposes use such force as may be necessary. (4) If the mortgagor becomes entitled to recover possession of his mortgaged land under Section 12 of the Bihar Money Lenders Act, 1974 (Bihar Act XXII of 1975) and the area of such mortgaged land, together with the land, if any, held by him anywhere in the State, exceeds the ceiling area, then the provisions of Section 18 shall apply thereto as if such mortgaged lands were in acquisition under that section and thereafter the land which the mortgagor is not entitled to retain shall be deemed to have been acquired for the purposes of this Act and vested in the State in accordance with sub-section(2)." 8. A plain reading of Section 15(1) would show, firstly, where at the first instance any land is declared to be ceiling surplus then Section itself provides that subject to appeal or revision, if any, State shall acquire the surplus land by publishing a notification in this regard but this power is then circumscribed by the first proviso to Section 15(1) itself wherein State is authorized to acquire, in fact, only those lands, pending appeal and revision of which there is no dispute of being surplus i.e. in respect of which the landholder has not laid any claim or declaration has not been challenged or the landholder himself has admitted it to be surplus. A conjoint reading of Section 15(1) and the first proviso thereto would show that notwithstanding declaration of surplus and notification under Section 15(1) only those lands can be taken over or acquired in respect of which there is no dispute pending in appeal or revision. Legislature had perceived chaotic situation that would arise if State had acted otherwise. A conjoint reading of Section 15(1) and the first proviso thereto would show that notwithstanding declaration of surplus and notification under Section 15(1) only those lands can be taken over or acquired in respect of which there is no dispute pending in appeal or revision. Legislature had perceived chaotic situation that would arise if State had acted otherwise. For example if consequent to original order some lands are declared surplus and without waiting for appeal/revision, they are acquired as surplus and distributed to Parcha holders then if those Parcha holders become necessary parties then the landholder will be required to make every one of them may be 10, 20 or more a party respondent to appeal/revision and all and every one of them would individually oppose the landholder even though the dispute is essentially between the landholder and the State with regards to declaration of surplus land. Thus the legislature contemplated take over at the first instance of only those lands in respect of which there is no dispute and the rest only after conclusion of proceedings. There is no provision authorising the State to take over and distribute lands which are subject to dispute. 9. Reading Sections 15(1)(2) and (3) it would be seen that all proceedings to acquire are subject to appeal and revision. Therefore, even with respect to land declared surplus, the acquisition is conditional. Thus, from the provision as envisaged under Section 15(1) of the Act, it is clear that notwithstanding declaration of surplus at the first instance only those lands can be acquired/taken over in respect of which the landholder raises no dispute. The rest of the land which has been declared surplus and which is subject to challenge in appeal or revision, a notification of intention to acquire is only to be issued and left, but till the proceedings are finally terminated they cannot be taken over. Here, if we keep this distinction in mind, then we would find that a person, who has been settled lands by way of Parwana gets a right as envisaged by the Apex Court when it in respect of land with regard to which no dispute is there, but the same is not the position with regards to other lands in respect of which appeal/revision is taken up by the landholder. Where a person has been illegally issued Parwana in respect of land, which the State had no authority to take over, such person cannot, in my view, base their right and claim on their illegal acquisition of right. 10. Here, at the first instance, the notification under Section 15(1) was issued on 21.6.1993, the entire proceedings were subject to appeal and revision, which were still to be filed. Undisputedly, these lands were not declared either surrendered by the landholder nor were these lands in respect of which there was no dispute, yet in contravention and in conflict with the provision, as contained in proviso to Section 15(1) of the Act State acted and settlements (Parwanas) were issued on or about 9.7.1993 i.e. within fifteen days of the said notification though it is again undisputed that ultimately the Board of Revenue decided the revision in 1995 and the matter was set aside by this High Court and ultimately this High Court held that in fact there was no surplus. Without waiting for the period as prescribed under the Act, the authority distributed the lands, which was impermissible. Therefore, the right, if any, as acquired by the petitioners was illegally acquired, in definance to the provision of law. If that be so, I do not think that they can claim the right of hearing, for it is well settled that one who seeks equity must show equity. It cannot be said that their right being illegally acquired, now they must be entitled to oppose all proceedings to evict. If the right is illegally acquired it cannot be perfected much less accepted by the Court or authority.This is in my view respectfully distinguishes the case from the judgment cited. 11. The second illegality is that Section 15(1) and Section 15(3) of the Act itself clearly predicate that the notification of acquisition is subject to decision in appeal or revision. If that be so, the rights of the petitioners automatically are subject to the result of appeal or revision. The principle of lis pendis would come into play. If pending litigation, they chose to step in, then if the litigation is decided against them they have no status to continue. 12. If that be so, the rights of the petitioners automatically are subject to the result of appeal or revision. The principle of lis pendis would come into play. If pending litigation, they chose to step in, then if the litigation is decided against them they have no status to continue. 12. It is well settled that subsequent purchaser with notice of litigation is not a necessary party and the purchase or acquisition of right by him is hit by doctrine of lis pendis even in his absence. 13. Thus, on both counts I do not find any merit in this writ application. Once notification declaring surplus is set aside the illegally acquired rights of the petitioners itself collapse and the Parwana (Settlement Order) becomes non est. 14. The writ petition thus merits no consideration and is dismissed.