The power of a Collector of the District under Section 45B of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961, to reopen land proceedings is not arbitrary and must be exercised sparingly, based on new material or a finding that the Collector's previous orders were passed in violation of the law, resulting in prejudice to the State, land-holder, or third party.

S.B. Sinha, J. - In this application the petitioners have prayed for issuance of a writ of certiorari for quashing an order dated 11th August, 1992 passed by the Respondent No.1, in Land Ceiling Case No. 275 of 1992 whereby the land proceedings have been opened purported to he under Section 45B of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the said Act).

2. The fact of the matter lies in a very narrow compass.

In order to appreciate the point involved in his case, the Genealogical table of the family of the petitioners as stated in the writ application may be reproduced:

3. A proceeding under the said Act being L.C. Case No. 1160 of 1973-74 was initiated against Sk. Saidur Rahman, Sk. Mazidur Rahman and Sk. Hamidur Rahman. The family is said to be possessed of 429.65 acres of land in, K.Nagar Anchal and 78.88 acres of land in Purnea East Anchal, totalling an area of 508.53 acres of land.

4. According to the petitioners all the brothers have equal shares in the said 508.53 acres of land. The petitioner has contended that all the three brothers are separate in mess and properties.

5. The petitioner has contended that according to the check slip 429.65 acres of land have been found in possession of the petitioners in K.Nagar Anchal and 78.88 acres of land in Purnea East Anchal.

6. A draft publication was made under, Section 10(2) of the Act. In the final order 5 units have been given to the family as the fat her of the petitioners No.1 to 4 and the husband of the petitioner No.5 died and all the sons was found to be major on 9.9.1970 by an order dated 30th September, 1983.

7. However, by an order as contained in Annexure-3 to the writ application the proceeding has been 'reopened which according to the petitioners was dropped in the year 1983. Accordingly Respondent No.2 has directed for issuance of notice in draft statement under section 10(2) of the Act to all the parties.

8. Mr. Jagdish Prasad Bhagat, learned counsel appearing on behalf of the petitioner has raised a short question in support of this application.

The learned counsel submitted that as no appeal or revision was filed by the State against the order dropping the proceedings, assuming that the some units had wrongly been allotted to the petitioners, the said proceedings itself could not have been reopened after a lapse of about 9 years.

9. The learned counsel in support of this contention has relied upon a decision of this court in Shyama Nand Vs. State of Bihar reported in 1980 BBCJ .47 and Choudhary Sah Vs. State of Bihar reported in 1982 BBCJ 130 (SC).

11. Mr. Ragheb Ahsan, learned counsel appearing on behalf of the State, however, submitted that the aforementioned decisions have no application in the facts of this case, inasmuch as it is not a case where Order 41 Rules 22 or Rule 33 of the Code of Civil Procedure is applicable.

The learned counsel pointed out that an apparent mistake has been committed insofar as the petitioners have been shown to be in possession of 268.99 acres of land in place of 384.89 acres of land and thus 115.90 acres of lamb have been left out.

12. It has further been found that the Collector under the Act has accepted the purported gin of 149.88 acres of land without making any enquiry in this regard.

13. It has further been pointed out that the land-holder was alive on 9.9.1980 and as such no unit could have been allotted in favour of his son.

14. From a perusal of the impugned order, it appears that the contention of the petitioners before the Collector inter alia was that the deeds of gift has been executed within the statutory period and further at the relevant period of time all the major sons were entitled to separate unit.

15. It has further been contended that if any land was left out by the respondents, they should not be penalized for the said purpose.

16. The Collector has pointed out that apparently there arc errors with regard to the extent of lands held