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PATNA HIGH COURT
S. SARWAR ALI & NAGENDRA PRASAD SINGH, JJ.
Mahanth Daya Ram Das & Ors. – Petitioners
Vs.
The State of Bihar & Ors. – Respondents
C.W.J.C. no. 1583 of 1975
Decided On : 9.9.75
Held, that the Collector has to wait for the disposal of the appeal and revision in order to make the final publication of the draft statement- The Section clearly says that it is after disposal of the objection, appeal or revision, that the Collector shall make alteration in the draft statement. Unless the stage of alteration in relation to draft statement is past, the occasion to finally publish the Statement does not arise..... Under Sec. 30 of the Act, there is a period of limitation prescribed and although there is no period of limitation prescribed for exercise of suo motu power u/s 32 of the Act, by the Board, there can not be a differentiation between an appeal or revision. It, however does not mean that the authorities have to wait indefinitely because of there being no limitation for the exercise of suo motu power u/s 32 of the Act. They have only to wait for the period of limitation prescribed under Sec. 30 of the Act, so far the appeals, are concerned and the period prescribed in Board's Miscellaneous Rules as the period within which revision hase to be filed. It necessarily follows once an appeal has been filed, the authorities have to wait till the disposal thereof and the expiry of the period of revision before taking any action u/s 11 (1) of the Act. Similarly where a revision has been filed after the disposal of the appeal, the Collector has to wait till the actual disposal of the revision application... In this view if the draft statement has been prematurely published, it is not publication in accordance with the provision of Sec. 11 of the Act. Such a publication can not bar consideration of appeal or revision by competent court (Para 9)
If an appeal or revision is preferred after the period of limitation and the same is entertained after condonation of delay, the final publication of the draft statement made after the expiry of the period of limitation is subject to the result of the appeal or revision and the final publication under Sec.11 and the Publication in the official gazette under sec. 15 (1) shall stand modified as a result of the decision in appeal or revision. Held further that the order of commissioner and the Board of revenue is therefore bad and suffer from the error of law apparent on the fact of the record - (Paras 10 & 15)
Held further that no reasonable opportunity was given to the petitioner to present their case and the order is bad being in violation of Principles of Natural Justice. (Para 17)
Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, Sec. 15-Publication of the notice in the official gazette on the person Concerned-No notice served on the person claiming interest in the land-Objection raised by such person under Sub sec. (3) will succeed-Interest of the successful claimant can not be publication under Sub section (1)-Provision of publication in the official gazette may not in many cases mean real notice to the interested person-Authorities should condone the delay in late filing of claims in suitable cases for advancing cause of real justice-State Government directed to make suitable provisions for publication of the notice in the villages concerned along with the publication in the Gazette. (Para 11 & 12)
Bihar Land Reforms Act, (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961, Sec. 15 (6)-Possession when can be taken-Collector whether to wait till the result of the appeal or revision.
Held that the power of the collector to take possession of the land specified in the notification under sub sec. 1 of sec. 15 is subject to the provisions of sub-sec. 4 & 5 and any order passed in appeal or revision. When therefore a claim has been filed, the Collector should stay his hand in respect of taking of possession, pending appeal or revision. He has to wait till the expiry of the period of filing appeal or revision before taking further steps. Where the appeal or revision has been filed, the Collector has to wait till the decision of the appeal or revision possession taken during the pendency of appeal or revision will be subject to the result there of and the right of the person ultimately succeeding in his claim can not be defeated by the mere fact that possession has been taken of the land in question. (Para 14)
Constitution of India-Art 226-Natural Justice-Petitioner filing petition for adjournment on the ground of non availability of lawyer of account of Bihar Bund-Adjournment refused and case decided - Order is bad and in violation of Principals of natural Justice. (Relied on 1970 (1) WLR 1061 & 1974 (2) ALL. ER 1219) (Para 17)
In this writ application the legality of certain orders passed, and the procedure adopted, in purported exercise of the powers conferred by the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act, XII of 1962) (hereinafter referred to as 'the Act') have been questioned. But before dealing with the contentions raised in this case, some preliminary observations are called for.
2. When the people of India gave to themselves the Constitution they declared, in unequivocal terms, their solemn resolves to secure to all the citizens: Justice, social, economic and political. This is so stated in the preamble to the Constitution: and the preamble is "a-key to open the mind of the makers." The positive 'duties set out in the preamble to the Constitution are incorporated in Part IV of the Constitution dealing with Directive Principles of the State Policy. The Directive Principles are 'fundamental in the governance of the country' and two of such principles are (i) that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good, and (ii) that the operative of the economic system does not result in the concentration to the common detriment. It was but obvious that steps will have to be taken to bring about economic justice in the agriculture sector which supports the bulk of the population of this country. The first step in this direction, even before the coming into force of the Constitution, was the abolition of intermediary interest in agricultural lands and matters connected therewith. Leaving aside the various intermediate beneficial agrarian legislations in almost all the States, the next big step was the fixation of the ceiling on agricultural holdings and disposal of surplus land thus acquired to the landless and poorer section of the community. These legislations are plainly legislations of economic and social import aimed to achieve the objects enumerated in the Directive Principles of State Policy under our Constitution. To set at rest any doubt or dispute in the orbit round the legislations and their validity, they were all included in the Ninth Schedule to the Constitution. Later, amendments were introduced lowering down the ceiling area - as originally fixed.
3. It is, however, obvious that all laws, even vital and important legislations as the Act, have to be implemented according to the provisions of the statute. In the process of implementation of a law, where the provisions thereof are disregarded or misconstrued; where what had been given or left to the citizen by the very provisions of the statute is being encroached upon; where the citizen can legitimately complain that he does not come within the purview of the statute; it is the legal and constitutional duty of the Court to see that the limit put by the law are not transgressed. And, finally, in implementation of the law, procedural safeguards and rules of natural justice have to be observed. It is only on these and other well recognised grounds and within the limitations inherent in the exercise of writ jurisdiction, that this Court will be entitled to interfere. In thus interfering the Court is only securing the compliance of law and advancing the very scheme of legislation and the true intention of the legislature. Realising, however, the need for early implementation of the legislation, this court is prepared and is indeed giving special priority to the disposal of the cases arising under the Act.
4. I shall now deal with the relevant facts giving rise to this writ application. A draft statement under section 10 of the Act, was served on petitioner no. 1 (hereinafter referred to as 'the petitioner). The objection as envisaged under section 10 (3) of the Act, was filed before the Collector. The gist of the objection was that, for the reasons mentioned in the application the petitioner was not holding land beyond the ceiling area. 6th November
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