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2013 DIGILAW 194 (PAT)

Bisheshwar Prasad Yadav v. State Of Bihar

2013-02-08

RAKESH KUMAR

body2013
CAV ORDER Two petitioners, while invoking extraordinary writ jurisdiction of this court under Article 226 of the Constitution of India, have prayed for issuance of appropriate writ or order(s) for quashing of an order dated 21/2/2012 passed by the Collector, Supaul, in Miscellaneous Land Ceiling Case No. 21 of 2011. In the prayer portion the petitioners have prayed for quashing of impugned Gazette notification contained in Annexure -2 incorrectly (Annexure - 3) and order contained in Annexures – 10 & 11, whereas there is no Annexure - 11 in the writ petition. It has been pleaded that the Collector, Supaul ( Respondent No. 2) has violated the order passed in CWJC No. 5934 of 1991. 2. Short fact of the case is that long back a ceiling proceeding vide Case No. 25 of 1969-70/ 42 of 1973-74 was initiated against respondent no. 10. In the said proceeding about 174 Acres and 81.5 Decimals land of private respondent no. 10 was declared surplus and finally, gazette notification under Section 15 of the Bihar Land Reforms (Fixation Of Ceiling Area And Acquisition Of Surplus Land) Act, 1961, (hereinafter referred to as “the Act”) was published on 16/8/1981. The said gazette notification has been enclosed as Annexure -3 to the writ petition, which has been prayed to be quashed by the petitioners in the present writ petition. It is the case of the petitioners in the present writ petition that surplus land, mentioned in Annexure – 3 i.e. gazette notification dated 16/8/1981 was distributed under the Act and Parchas were issued in favour of respondent no. 5 to 9 on 3/11/1983. The petitioners have claimed that they had purchased 2 Bigha 9 Dhurs of land from respondent no. 10 through registered sale deeds executed on 23/5/1974 and 3/5/1980 and they are coming in possession over the land in question. It has also been claimed in the writ petition that though Parchas were issued, possession over the disputed land has not been delivered to others and petitioners are still in peaceful possession. The petitioners, as claimed, learnt for the first time about the ceiling proceeding and acquisition of land in dispute on 17/1/1982 and raised objection regarding distribution of land in dispute. In the writ petition it has further been stated that without considering the claim of the petitioners, on 3/11/1983 the lands were distributed to respondent no. The petitioners, as claimed, learnt for the first time about the ceiling proceeding and acquisition of land in dispute on 17/1/1982 and raised objection regarding distribution of land in dispute. In the writ petition it has further been stated that without considering the claim of the petitioners, on 3/11/1983 the lands were distributed to respondent no. 5 to 9 and Parchas were given, however, possession of petitioners still continues. Thereafter, as claimed, again, in the year 1983 the petitioners made fresh application before respondent no. 2 / Collector. In paragraph no. 15 of the writ petition it has been stated by the petitioners that respondents thereafter started contemplating to effect delivery of possession over the disputed land to respondent no. 5 to 9 ignoring application of the petitioners dated 4/11/1983, and thereafter, petitioners approached this court vide CWJC No. 5310 of 1983 which was taken up for hearing on the point of admission on 25/11/1983. The said writ petition was finally dismissed as withdrawn on 23/1/1984 which has been enclosed as Annexure - 5 to the writ petition. The petitioners, thereafter, as claimed, made a fresh application on 21/6/1988 before respondent no. 2 and accordingly, a case was registered vide case no. 51 of 1988-89, which was finally rejected by the respondent no. 2 vide Annexure - 7 to the writ petition. The petitioners, as per writ petition, aggrieved with the order dated 8/10/1989 passed by respondent no. 2 in case no. 51 of 1988-89 preferred a writ petition before this court vide CWJC No. 2692 of 1989, which was dismissed on 14/9/1989, which has been enclosed as Annexure - 9 to the writ petition at page no. 89. 3. Learned counsel for the petitioners submits that the petitioners had also approached this court vide CWJC No. 5934 of 1991, which was finally allowed by a Bench of this Court on 14/7/1999. Learned counsel for the petitioners has referred to Annexure - 1 to the writ petition, which is a photo copy of order dated 14/7/1999 passed by a single bench of this Court reported in 1999(3) PLJR 117 (Bisheshwar Pd. Yadav vs. State & ors.). Learned counsel for the petitioners has referred to Annexure - 1 to the writ petition, which is a photo copy of order dated 14/7/1999 passed by a single bench of this Court reported in 1999(3) PLJR 117 (Bisheshwar Pd. Yadav vs. State & ors.). It was argued that ignoring the direction of this court, as reported in 1999(3) PLJR 117 , the Collector, Supaul (Respondent No. 2) has passed the impugned order i.e. order dated 21/2/2012, whereby, Miscellaneous Land Ceiling Case No. 21 of 2011, which was preferred by the petitioners has been rejected. He submits that order dated 21/2/2012 passed by the Collector, Supaul is in violation of the order passed by this court, and as such it requires interference. On 22/1/2013, even without issuing notice to private respondents, after hearing learned counsel for the petitioners and State order was reserved in the present writ petition. 4. Besides hearing learned counsel for the petitioners and State, I have minutely examined the present writ petition. After going through the averments made in the writ petition and examining documents brought on record, the court is of the opinion that the writ petition is fit to be rejected on the simple ground that regarding the land in dispute and other lands a ceiling proceeding under the Act was initiated long back vide Ceiling Case No. 25 of 1969-70/42 of 1973-74. It is the admitted case of the petitioners that they had purchased the land after initiation of the ceiling proceeding against respondent no. 10 from whom the petitioners have claimed to have purchased the land in the year 1974 and 1980. In the said ceiling proceeding final gazette notification under Section 15 of the Act was issued in the year 1981 itself. It is also not in dispute that after initiation of the ceiling proceeding no prior permission was obtained as required under Section 5(i)(ii) of the Act, and as such, there was no transfer of land in the eye of law. Moreover, the ceiling proceeding was initiated long back in the year 1970 itself and gazette notification publication under Section 15 of the Act was made in the year 1981. Moreover, the ceiling proceeding was initiated long back in the year 1970 itself and gazette notification publication under Section 15 of the Act was made in the year 1981. It is further evident that twice writ petitions preferred by the petitioners were withdrawn or rejected vide Annexures -5 & 9 to the writ petition i.e. order dated 23/1/1984 passed in CWJC No. 5310 of 1983 and order dated 14/9/1989 passed in CWJC No. 2692 of 1989. So far as Annexure - 1 to the writ petition is concerned i.e. order passed in CWJC No. 5934 of 1991, the said order was passed on 14/7/1999. After going through paragraph no. 5 of the order contained in Annexure - 1 to the writ petition, it is evident that in the said writ petition also no counter affidavit was filed and thereafter writ petition was allowed. Though writ petition was allowed long back in the year 1999 no reason has been assigned by the petitioners as to under what circumstances they filed Miscellaneous Land Ceiling Case No. 21 of 2011 before the Collector, Supaul ( Respondent No. 2) at such belated stage in the year 2011. It is further evident from the impugned order i.e. order dated 21/2/2012 of the learned Collector, Supaul, that for non compliance of the order passed in CWJC No. 5934 of 1991 the petitioners had filed a contempt case vide MJC No. 1339 of 2008, which was dismissed since no reason was assigned for delay. Once contempt petition, which was filed for non compliance of the order was rejected on the ground of delay, there is no reason for this court to pass a favourable order in view of Annexure - 1 to the writ petition. For the purpose of execution of an order passed by a writ court second writ petition can not be entertained. Moreover, the order passed by the Collector, on 8/10/1989 in Case No. 51 of 1988-89 was already approved by this Court by way of rejecting the writ petition i.e. CWJC No. 2692 of 1989 by a Division Bench of this Court i.e. Annexure - 9 to the writ petition. The petitioners in paragraph no. 26 of the writ petition itself have accepted that they had preferred CWJC No. 2692 of 1989 against order dated 8/10/1989 passed in Case No. 51 of 1989. The petitioners in paragraph no. 26 of the writ petition itself have accepted that they had preferred CWJC No. 2692 of 1989 against order dated 8/10/1989 passed in Case No. 51 of 1989. At this juncture it is very much relevant to notice the order, which has already been approved by the Division Bench of this Court. The Collector, while dismissing the claim of the petitioners in Case No. 51 of 1988-89 has noticed each and every fact. 5. From the order of the Collector, it is evident that petitioners have got no case for reconsideration. Fact remains that land in dispute was declared surplus long back in a proceeding i.e. in land ceiling case no. 25 of 1969-70 / 42 of 1973-74. It is further evident that final gazette notification under Section 15 of the Act was issued on 16/8/1981 and lands in dispute were distributed to respondent no. 5 to 9 of the writ petition as accepted in paragraph no. 12 of the writ petition. Accordingly, the court is of the opinion that the present writ petition has been filed purposely with a view to circumvent the statutory provisions contained in the Act. It is further evident that, without disclosing plausible reason they approached the writ court repeatedly, after long delay, which amounts to misusing process of law. Accordingly, I do not find any ground to entertain the present writ petition, and as such, the writ petition stands dismissed. 6. In view of conduct of the petitioners, the court was of the opinion to impose heavy cost on them, but considering the fact that the writ petition is being dismissed at the very threshold, the court is refraining from imposing cost. 7. Let a copy of this order be handed over to learned Government Pleader No. 22 for its communication to the Collector, Supaul, for taking appropriate step.