Kusheshwar Prasad Singh Vs. State of Bihar & Ors  Insc 296 (19
C.K. THAKKER & LOKESHWAR SINGH PANTA
C.K. THAKKER, J.
The present appeal is filed by the appellant against the judgment and order
passed by the Division Bench of the High Court of Patna on August 13, 1989 by
which it dismissed the Letters Patent Appeal No. 1177 of 1998 and confirmed the
order passed by a Single Judge on September 24, 1998 in Civil Writ Jurisdiction
Case No. 3008 of 1998.
Brief facts of the case leading to the present appeal are that a return was
filed by the landholder under the Bihar Land Reforms (Fixation of Ceiling Area
and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as 'the
Act'). It was alleged that the landholder possessed excess land. A draft
statement under Section 10 was issued by the Collector under the Act. The
landholder objected to the proceedings and asserted that he did not possess
land in excess of ceiling area. An enquiry was made and verification reports
were submitted by the Circle Officers (Anchal Adhikaris). The Deputy Collector,
Land Reforms, (DCLR) Samastipur, vide his order dated January 07, 1976 upheld the objection of the landholder and recorded a finding that the landholder
did not possess surplus land and the proceedings were required to be dropped.
The case was accordingly disposed of. No appeal was filed against the said
decision and it had become final. No 'final statement', as required under
Section 11 of the Act, however, was issued or published by the authority. The
Act was amended in April, 1981 (Bihar Act 55 of 1982) and after Section 32,
Sections 32A & 32B came to be inserted. Whereas Section 32A provided for
abatement of appeal, revision, review and reference, Section 32B permitted
initiation of fresh proceedings in certain cases. In the present case, as
already noted earlier, no final statement under Section 11 was issued. It
appears that one Hridya Narayan Yadav, Secretary, Kisan Sabha
Darbhanga-cum-Member, Darbhanga District Committee, Bhartiya Communist Party
(Marxist), Darbhanga moved an application in the Court of Additional Collector,
Land Ceiling, Darbhanga along with an affidavit alleging therein that the
landholder had more lands than prescribed under the Ceiling Act, but correct
facts were not disclosed when the return was filed under the Act by the
landholder in 1973-74. Fresh proceedings were, therefore, initiated in the year
1993 in Land Ceiling Case No. 65 of 1992-93 and statement of landholder was
recorded. The Additional Collector, after considering the objection of the
landholder and referring to details furnished by Circle Officers held that the
landholder possessed 96.40 acres of land. He was entitled to only one unit.
Thus, he could retain only 25 acres of Category III land and the remaining land
of 71.40 acres was required to be declared surplus. An order was passed to that
effect. A direction was also given to take appropriate steps for issuance of
final statement under Section 11 of the Act.
The appellant preferred an appeal against the said order before the
Collector under Section 30 of the Act. It was, inter alia, contended that the
order dated January 7, 1976 declaring that the landholder did not possess
excess land, had not been challenged and attained finality. The notification
and final statement which was required to be issued under Section 11 of the Act
had not been issued by the authorities. Non-issuance of final statement cannot
adversely affect the landholder. It was also submitted that the Ceiling Case
was of 1973-1974. It was over in 1976 and it cannot now be reopened. It was
also urged that Section 32B came to be inserted only in 1981, but before that
final order was passed in 1976. No fresh proceedings thus could be initiated
under the Amendment Act of 1982. It was, therefore, submitted that the order
passed by the District Collector was liable to be set aside.
The Collector, however, by an order dated June 2, 1997 dismissed the appeal
and confirmed the order passed by the Additional Collector, Darbhanga and
observed that the landholder was in possession of excess land. The landholder
approached the Board of Revenue by filing a Revision Petition under Section 32
of the Act which was also dismissed by the Member, Board of Revenue, Bihar vide
his order dated January 13, 1998.
The aggrieved landholder then instituted a writ petition before the High
Court of Patna. A counter affidavit was filed on behalf of the respondent-State
in which a stand was taken that Land Ceiling Case No. 65 of 1992-93 was in fact
renumbered of the old case and proceedings were started afresh in exercise of
power under Section 32B of the Act and such a course was permissible in the
light of the fact that after the order was passed on January 7, 1976, no final
statement was issued under Section 11 of the Act.
Initiation of fresh proceedings was, therefore, permissible and the order
passed by the Additional Collector, Darbhanga and Collector, Darbhanga could
not be said to be unlawful.
The learned Single Judge noted that though the order was passed in 1976, no
final notification under Section 11(1) of the Act was issued prior to April 9,
1981 when the Act was amended and Sections 32A and 32B were added. In the
circumstances, observed the learned Single Judge, initiation of fresh
proceedings was permissible and the order passed in those proceedings could not
The writ petition was, therefore, dismissed. The Division Bench in Letters
Patent Appeal confirmed the order of the learned Single Judge. The said order
has been challenged in this Court.
On February 4, 2000, notice was issued by this Court and ad-interim relief
was granted. The matter was thereafter adjourned from time to time. On December
11, 2000, leave was granted. The matter has now been placed before us for final
The learned counsel for the appellant contended that the proceedings had
been concluded and final order was passed under the Act as early as on January
7, 1976 and that order had become final. Nobody had challenged it.
Legality of that order could not be subsequently considered by initiating
fresh proceedings. It was incumbent on the authority to take consequential
action of issuance of final statement under sub-section (1) of Section 11 of
the Act immediately after the order was passed, but it was not done. There was
thus failure to discharge statutory duty by the authorities which cannot
adversely or prejudicially affect the interest of the landholder. It was also
submitted that there was no question of application of Section 32B of the Act
which was added only in April, 1981. Fresh proceedings initiated in 1992-93,
therefore, were without jurisdiction and all actions taken in those proceedings
are liable to be set aside. It was further submitted that it was due to mala
fide act by Hridya Narain Yadav that proceedings were started in 1992-93.
According to the learned counsel, neither the authorities nor the High Court
considered the provisions of law and the orders are contrary to law.
The learned counsel for the respondent-authorities supported the orders and
submitted that they were right in holding that since no final notification
under Section 11(1) was issued, the proceedings could not be said to have been
concluded and in view of amendment in 1981, action could be taken under Section
32B of the Act and appellant had no right to make grievance against it.
Having considered the rival submissions of the learned counsel for the
parties, in our opinion, the appeal deserves to be partly allowed. So far as
the contention of the appellant that the proceedings had been initiated in
1973- 74 and final order was passed on January 7, 1976 is not disputed and
cannot be disputed. If it is so, submission of the appellant is well founded
that final statement as required by sub-section (1) of Section 11 ought to have
been issued and effect ought to have been given to the final order. Admittedly,
no appeal was filed. Nor the order was challenged by any party. The appellant
is right in contending that final statement ought to have been issued
immediately or in any case within 'reasonable time'. The authority cannot
neglect to do that which the law mandates and requires doing. By not issuing
consequential final statement under Section 11(1) of the Act, the authority had
failed to discharge its statutory duty. Obviously, therefore, the appellant is
justified in urging that such default in discharge of statutory duty by the
respondents under the Act cannot prejudice him. To that extent, therefore, the
grievance of the appellant is well-founded.
The appellant is also right in contending before this Court that the power
under Section 32B of the Act to initiate fresh proceedings could not have been
Admittedly, Section 32B came on the statute book by Bihar Act 55 of 1982.
The case of the appellant was over much prior to the amendment of the Act and
insertion of Section 32B. The appellant, therefore, is right in contending that
the authorities cannot be allowed to take undue advantage of its own default in
failure to act in accordance with law and initiate fresh proceedings.
In this connection, our attention has been invited by the learned counsel
for the appellant to a decision of this Court in Mrutunjay Pani & Another
v. Narmada Bala Sasmal & Another, AIR 1961 SC 1353, wherein it was held by
this Court that where an obligation is cast on a party and he commits a breach
of such obligation, he cannot be permitted to take advantage of such situation.
This is based on the Latin maxim 'Commodum ex injuria sua nemo habere debet'
(No party can take undue advantage of his own wrong).
In Union of India & Ors. v. Major General Madan Lal Yadav (Retd.),
(1996) 4 SCC 127, the accused-army personnel himself was responsible for delay
as he escaped from detention. Then he raised an objection against initiation of
proceedings on the ground that such proceedings ought to have been initiated
within six months under the Army Act, 1950.
Referring to the above maxim, this Court held that the accused could not take
undue advantage of his own wrong. Considering the relevant provisions of the
Act, the Court held that presence of the accused was an essential condition for
the commencement of trial and when the accused did not make himself available,
he could not be allowed to raise a contention that proceedings were
time-barred. This Court referred to Broom's Legal Maxims (10th Edn.) p. 191
wherein it was stated;
"it is a maxim of law, recognised and established, that no man shall
take advantage of his own wrong; and this maxim, which is based on elementary
principles, is fully recognised in Courts of law and of equity, and, indeed,
admits of illustration from every branch of legal procedure".
It is settled principle of law that a man cannot be permitted to take undue
and unfair advantage of his own wrong to gain favourable interpretation of law.
It is sound principle that he who prevents a thing from being done shall not
avail himself of the non-performance he has occasioned. To put it differently,
"a wrong doer ought not to be permitted to make a profit out of his own
In view of the findings recorded by us hereinabove, we would have allowed
the appeal in its entirety and would have quashed the proceedings initiated in
1992-93 by setting aside all orders passed in such proceedings. It, however,
appears that an application was made by Hridya Narain Yadav, in which it was
stated that the landholder had not disclosed full and correct facts in his
Certain lands belonged to him and located in District of Darbhanga were not
shown in the earlier proceedings. In other words, the allegation was that the
landholder had played fraud upon the authorities and on the statute by not
furnishing true and full facts as to the land possessed by him. If it is so,
irrespective of statutory provisions, an appropriate action can be taken.
Though the question was raised before the statutory authorities under the Act,
the High Court (learned Single Judge as also the Division Bench) had decided
the case only on the basis of Section 32B of the Act which could not have been
done. In view of our findings as to non-applicability of Section 32B to the
case on hand, we consider it appropriate to remit the matter to the Division
Bench of the High Court to decide it afresh under the law as it stood prior to
amendment by Bihar Act 55 of 1982. At the same time, however, the High Court
will consider the case as to whether all requisite facts had been disclosed by
the landholder when he filed return in 1973-74 or there was non-disclosure of
certain lands. The Division Bench of the High Court will finally decide the
matter after affording opportunity to all the parties. Let such a decision be
taken as expeditiously as possible, preferably within six months from the
receipt of the order of this Court.
For the foregoing reasons, the appeal is partly allowed to the extent
indicated hereinabove. The matter is remitted to the High Court to decide it
afresh in accordance with law.
In the facts and circumstances of the case, there shall be no order as to