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2010 DIGILAW 198 (PAT)

Maharani Durgeshwari Sahi Wife Of Late Maharaja Bahadur Gopeshwar Prasad Sahi v. State Of Bihar

2010-02-17

KISHORE K.MANDAL, SUDHIR KUMAR KATRIAR

body2010
JUDGEMENT Sudhir Kumar Katriar and Kishore Kumar Mandal JJ. 1. This batch of Writ Petitions is directed against the Order dated 29th July, 1991, passed by the learned Member, Board of Revenue, Bihar, Patna, in Revision Case No. 80 of 1990 (State of Bihar V/s. Maharani Durgeshwari Sahi and Ors.), passed in purported exercise of powers under Section 32 of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act). The revision application, in its turn, was directed against the common Order dated 26th June, 1990, passed by the learned Commissioner of Saran Division, Chapra, in Case No. 39 of 1985-86 and analogous appeal(s). It arises out of land ceiling Proceedings. CWJC No. 3217 of 1992 is at the instance of the land holders, deity, and some of the transferees. The remaining Writ Petitions are at the instance of the other transferees. 2. We shall draw the basic facts from CWJC No. 3217 of 1992. Land ceiling Proceedings were initiated against Petitioner Nos. 1 and 2, and was Registered as Ceiling Case No. 243/3 of 1973-74. Petitioner No. 1 filed returns of the land held by herself/family. After following the prescribed procedure, three units were allotted to the land-holder(s). The matter ultimately reached the learned Commissioner of Saran Division at Chapra. There is no need to go into the meandering course of the litigation before the learned authorities under the Act, and before this Court. The matter was ultimately decided by the learned Commissioner by the Order impugned before the Board of Revenue, whereby he substantially allowed the claim of the land-holder(s) and the transferee(s) which led to the aforesaid Revision Case No. 80 of 1990, before the Board of Revenue at the instance of the State of Bihar. The learned Member has out-right rejected some of the claims which had been allowed by the learned Commissioner. In other words, the revision application of the State of Bihar has been substantially allowed by the learned Member, the Order of the learned Commissioner has been set aside, and the claims for exemption have been rejected after discussing the materials on record and assigning convincing reasons. In other words, the revision application of the State of Bihar has been substantially allowed by the learned Member, the Order of the learned Commissioner has been set aside, and the claims for exemption have been rejected after discussing the materials on record and assigning convincing reasons. These are issues of facts, and the High Court in exercise of its Writ jurisdiction would be reluctant to interfere with the same in a situation where we are convinced with the discussion in the impugned Order. Therefore, for the reasons assigned in the impugned Order, we uphold disallowance of such exemptions. 3. In so far as the remaining items are concerned, the learned Member has on exhaustive discussion of the materials before him come to the conclusion that the learned Commissioner did not have adequate materials to reach the conclusion which he did and has, therefore, remitted the matter to the learned Collector of the District for fresh enquiry, fresh inspection, and fresh determination. For example, he has observed as followed in Paragraph-13 of the Judgment: The learned Collector did not record any memorandum of local inspection in respect of his local inspection, he only stated in his impugned Order that during the course of his local inspection he found confirmation of the evidence produced on behalf of the land holders that these lands were not connected with agriculture or horticulture etc. and on that ground he excluded these lands from the list of the lands of land holders. It appears that the local inspection made by the Collector of Gopalganj of the pucca structures etc. was just an eye-wash as it was not possible for the learned Collector to inspect all these structures lying in different villages on the same day. The learned Collector also did not care to record any memorandum of local inspection giving details of what he saw on the ground on the basis of which he came to the conclusion that these pucca structures etc. were unconnected with agriculture or horticulture etc. Again the land holders have been changing their stand. In that view of the matter, we entirely agree with the decision of the learned Member to set aside the Order of the learned Commissioner, and remit the same to the learned Collector for fresh adjudication. 4. We must deal with the question of limitation advanced by the learned Counsel for the Petitioners before us. In that view of the matter, we entirely agree with the decision of the learned Member to set aside the Order of the learned Commissioner, and remit the same to the learned Collector for fresh adjudication. 4. We must deal with the question of limitation advanced by the learned Counsel for the Petitioners before us. They have submitted in one voice that the revision application was barred by limitation. We observe from Paragraph-9 of the impugned Order that the learned Member discussed the issue of limitation raised by the land-holders and Ors. before the Board of Revenue, and on application of the Judicial mind and discussion of the relevant issues the condonation application has been allowed and the delay in filing the revision application was condoned. The learned Member has taken a possible view and we are not inclined to interfere with the same. 5. We must also deal with the contention advanced on behalf of the Writ Petitioners that the High Court, or at best the Board of Revenue should itself decide the matter afresh on merits. We are mindful of the Legal position that an Order of remand sets at naught the entire effort made till then to dispose of the lis and, therefore, such a course should be the last resort. In the facts and Circumstances of the present case, we are convinced that the learned Member was right in remitting a few issues to the learned Collector for fresh local inspection and enquiry under Section 5(1)(iii) of the Act, and in accordance with law. 6. In the result, the Writ Petitions are dismissed. The matter goes back on remand to the learned Collector of the district to dispose of the matter in accordance with the detailed direction indicated in the Order of the learned Member, Board of Revenue. It goes without saying that it will be open to the parties to bring on record fresh evidence in support of their respective cases. He should, in this connection, apart from other decisions of the Court, be also guided by the following Judgment of this Court: (i) Md. Salim Uddin V/s. State of Bihar 1998 (1) PLJR 38 (ii) Lakshmi Bhagat V/s. State of Bihar 1998 (1) PLJR 348