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2010 DIGILAW 840 (PAT)

Mahanth Ram Milan Goswami v. State Of Bihar

2010-04-20

V.N.SINHA

body2010
JUDGEMENT 1. Heard learned counsel for the petitioner and Sri Ajay, S. C.-3 (Ceiling) for the State. 2. Petitioner is aggrieved by the order dated 28.11.1996 passed by the S. D. O. , Hathua in Ceiling Case No.85/161 of 1973-74, annexure-1, whereunder he has been allowed one unit without permitting him to exercise the right of option under Sec.9 of the bihar Land Reforms (Fixation of Ceiling Area and Acquisition of surplus Land), Act 1961 (hereinafter referred to as the "act" ). The order has been affirmed by the Collector, Gopalganj under order dated 24.06.1998 passed in Ceiling Appeal No.1/97, Annexure-2 as also in revision by the Board of Revenue under order dated 11.03.1999, annexure-3. Petitioner is questioning the three orders on the ground that he was served notice of the ceiling proceeding on 7.12.1995, as is evident from the receipt appended as Annexure-A to the counter affidavit but before service of the notice of the ceiling proceeding on the petitioner verification of the land was made by the revenue authorities behind his back and the verification report is violative of Rule 8 of the bihar Land Reforms (Fixation of Ceiling Area and Acquisition of surplus Land) Rules, 1963 (hereinafter referred to as the "rules") as interpreted by the High Court in the case of Motilal Padampat Sugar Co. Pvt. Ltd. Majhaulia and others Vs. The State of Bihar and others, reported in A. I. R.1973 Patna 47 (V 60 C 16), whereunder this Court having considered the provisions of the Act and the Rules held that the verification of the land is required to be made by the authorities in presence of the land holder after notice to him but from the findings recorded by the S. D. O. , Hathua in his order dated 28.11.1996, annexure-1 itself it would appear that the verification of land was made by the authorities not in presence of the petitioner. Learned counsel for the petitioner further assailed the three orders on the ground that without permitting the petitioner to exercise the right of option to choose the lands which he wanted to hold within his ceiling unit the authorities have published the Gazette under Sec.15 (1) of the Act acquiring the surplus land which is violative of Sec.9 of the Act and this Court should at least allow him the liberty to choose the land. 3. 3. During hearing of the writ petition learned counsel for the petitioner conceded the position that if he is allowed right to exercise option to choose the lands, he is ready to give up his submission about fresh verification of the lands in-question. In view of the concessation made by the learned counsel for the petitioner it is directed that petitioner be allowed the right to exercise his option to choose lands allocated to the petitioner within his ceiling unit under Sec.9 of the act. 4. Having perused the three impugned orders dated 28.11.1996, 24.6.1998 and 11.3.1999, Annexures- 1,2 and 3, I am of the view that the authorities erred in law by not granting him the right to exercise option and choose the land which is to be retained by the petitioner and appreciating the fair concession made by the counsel for the petitioner that he is giving up the right for reclassification, I modify the aforesaid three impugned orders and direct the S. D. O. , Hathua to grant the petitioner liberty to exercise his right of option under Sec.9 of the Act so as to permit him to choose the lands which he wishes to retain within his unit allowed under the three impugned orders and to that extent the three orders are modified. The authorities should permit the petitioner to choose his land within six weeks from the date of receipt/production of a copy of this order before the S. D. O. , Hathua and once the petitioner submits his option thereafter the S. D. O. , Hathua shall acquire the surplus land by issuing the corrigendum notification. So far the prayer of the petitioner for grant of exemption in terms of Sub-Section 2 (ii) of Sec.29 is concerned such exemption will be subject to the result of S. L. P. No.29897 of 2008, whereunder the Honble supreme Court is considering the vires of the legislative provision whereunder aforesaid Sub-Section (2) (ii) of Sec.29 of the Act was deleted.