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1996 Supreme(Pat) 20
PATNA HIGH COURT
Asok Kumar Ganguly, J.
Dhrub Prasad Singh Alias Dhrub Kumar Singh
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 6316 of 1993 ;
Decided On : JANUARY 10, 1996
The Collector lacked jurisdiction to annul the gazette notifications without reopening the proceedings under Section 45-B of the Bihar Land Reforms Act, 1961, and the impugned order was passed without following due procedure.
Headnote:
LAND REFORMS - CEILING AREA - RE-OPENING OF PROCEEDINGS - JURISDICTION - Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act 12 of 1962), Secs. 10(2), 10(3), 11(i), 15(1), 15(3), 45-B.
Fact of the Case:
Petitioners challenged the order of the Collector annulling a gazette notification modifying an earlier notification declaring certain lands as surplus under the Bihar Land Reforms Act, 1961. The petitioners argued that the Collector lacked jurisdiction to annul the notification without initiating proceedings for reopening under Section 45-B of the Act and that the impugned order was passed without following due procedure.
Finding of the Court:
The court found that the Collector had no power and jurisdiction to annul the gazette notifications without reopening the proceedings under Section 45-B of the Act and that the impugned order was not passed under Section 45-B. The court also found that the Collector passed the impugned order without following the procedure contemplated under the Act and without giving the petitioners an opportunity of hearing.
Issues: 1. Whether the Collector had the power and jurisdiction to annul the gazette notifications without reopening the proceedings under Section 45-B of the Act? 2. Whether the impugned order was passed under Section 45-B of the Act? 3. Whether the Collector followed the procedure contemplated under the Act and gave the petitioners an opportunity of hearing?
Ratio Decidendi: The court held that the Collector lacked jurisdiction to annul the gazette notifications without reopening the proceedings under Section 45-B of the Act. The court also held that the impugned order was not passed under Section 45-B of the Act and that the Collector did not follow the procedure contemplated under the Act or give the petitioners an opportunity of hearing.
Final Decision: The court set aside and quashed the impugned order, revived and restored the gazette notification modifying the earlier notification, and restrained the respondents from acting on the basis of the previous gazette notification. The court also quashed all consequential steps taken upon issuance of the impugned order and directed the respondents not to interfere with the petitioners' possession of the lands covered under the revived gazette notification.
A.K.Ganguly, J.
1. This writ petition has been filed by the four petitioners for quashing the impugned order dated 24.4.1993 (Annexure-1) passed by the Collector, Madhepura (respondent No. 2).
2. Petitioner No. 1 is the land holder and the petitioners case is that petitioner Nos. 2 and 3 purchased some portions of the land in question from petitioner No. 1 and/or his mother in between the year 1963 and 1974 and petitioner No. 4 purchased some land from petitioner No. 2.
3. In respect of the land in question a ceiling case was started against one Late Bimala Sundar Devi, mother of petitioner No. 1, Dhrub Prasad Singh alias Dhrub Singh on 19.2.1973 which was numbered as Ceiling Case No. 541 of 1973-74. The case as made out in the writ petition is that the total land, as per the verification report, held by the land holder was 339 acres and 98 decimals and accordingly a draft publication under Sec. 10(2) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the said Act) was made for the acquisition of 301.52 acres of land by giving one unit to the landholder. On 19.12.1975 an objection under Sec. 10(3) of the said Act was filed by the petitioner No. 1 inter alia, claiming that he being the adopted son of the land-holder was major on 9.9.1970 and as such two units were granted to the land-holder. It was also the case of the land-holder before the Additional Sub-divisional Officer (Ceiling), Madhepura that if the land, excluding the land held by the landholder and petitioner, No. 1 of draft publication is included in the final publication under Sec. 11(i) of the said Act, the land-holder will have no objection. Accordingly the Additional Sub-divisional Officer, Ceiling Madhepura passed an order on 31st May, 1976 by which he directed to make final publication of the lands by excluding the lands of petitioner No. 1 and the land-holder. The said order of the Additional Sub-divisional Officer, Ceiling, Madhepura dated 31st May, 1976 is annexure-2 to this writ petition. Thereafter a notification dated 29th June, 1976 being notification No. 1650 was published in Saharsa District Extra Ordinary Gazette (Annexure-9) whereby certain plots of lands were declared as surplus. Such notification was objected to under Sec. 15(3) of the said Act. The objection made under Sec. 15(3) of the said Act was upheld by annexures 3, 4 and 5 to this writ petition. The case of the petitioner is that accordingly the said gazette notification dated 30th June, 1976 which is at annexure-9, was modified by the subsequent gazette notification dated 19th August, 1990, as contained in annexure-8 to this writ petition. The further case of the petitioners is that the said gazette notification at Annexure-8 was never challenged by any authority and as such the said gazette notification dated 19th August, 1990 (Annexure-8) under Sec. 15(1) of the said Act has become final and the said gazette notification dated 19th August, 1990 has modified the previous notification No. 1650 dated 29th June, 1976.
4. When the said gazette notification dated 19th August, 1990 was holding the field and when the said gazette notification has become final, respondent No. 2- the Collector Madhepura suddenly on the basis of a visit to Mouza Bishapatti on 23rd April, 1993 annulled the said gazette notification dated 19th August, 1990 (Annexure-8) and the previous notification dated 29th June, 1976 (Annexure-9) was allegedly restored.
5. The grievance of the petitioners is that the impugned order which was passed by respondent No. 2 on 23rd April, 1993 was passed without initiating any proceeding for re-opening under Sec. 45-B of the said Act. From the impugned order dated 23rd April, 1993 (Annexure-1) also it does not appear that the said order was passed in exercise of the powers under Sec. 45-B of the said Act. Furthermore the procedure which is contemplated for re-opening of the proceeding under the said Act has
