Ram & Ors. Vs. State of Bihar &
Ors.  Insc 1169 (23
Chatterjee & P. Sathasivam P. Sathasivam, J.
Whether the parcha holders, who are in possession of the land in
question, have any right to be heard in a proceeding arising out of Section
45-B of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of
Surplus Land) Act, 1961 (hereinafter referred to as the Act) is the
only question to be decided in this appeal.
This appeal is directed against the impugned final judgment and order dated
14.9.1999 passed by the Division Bench of the High Court of Judicature at Patna in L.P.A. No. 1545 of 1997 whereby
the High Court dismissed the L.P.A. filed by the appellants herein against the
judgment and order dated 24.11.197 passed by the learned single Judge of the
High Court in C.W.J.C. No. 12036 of 1996 arising from a proceeding under
Section 45-B of the Act.
Ceiling (surplus) proceedings bearing Ceiling Case No. 149 of 1973-74 were
initiated against Nand Kishore Tiwari, respondent No.8 herein and a notice to
the said effect was issued to him under Section 6(1) of the Act in Form LC-1 as
prescribed under Rule 5 under the said Act and respondent No.8 submitted a
return under the said Act in respect of his entire land, total 19 acres 71
decimals. The aforesaid land was found to be owned and possessed by the family
as defined in Section 2(ee) of the said Act i.e. land holder, respondent No.8,
his wife Sumitra Devi and their two minor children as on appointed day i.e.,
9.9.1970 and ultimately the authority concerned by holding 15 acres of class I
lands was permitted to be retained by respondent No.8 under Section 5(1) and
the remaining 4.64 acres of land were declared as surplus. Final publication of
draft statement under Section 11(1) of the said Act was accordingly made and
subsequent to that a notification under Section 15(1) was also issued on
the said notification, respondent No.8 filed an appeal under Section 30(1)(b)
of the Act before the Commissioner, Patna Division, Patna bearing Ceiling Appeal No. 160 of
Commissioner dismissed the appeal on merits.
therewith, a Ceiling Revision was filed before the Member, Board of Revenue, Bihar, Patna which
was also dismissed. Writ Petition filed for quashing the earlier orders was
dismissed by the High Court. Subsequently another writ application which was
filed in the High Court by respondent No.8 herein and the same was disposed of
with a direction to raise the matter before the Collector of the District
within two weeks from the date of the receipt of the order. However, no such
application was filed by respondent No.8 before the District Collector,
therefore, after the expiry of said such period, the High Courts order became
infructuous. The wife of respondent No.8, namely, Sumitra Devi filed an
application before the District Collector for re-opening the case under Section
95-B of the Ceiling Act and the same was dismissed.
the order of the District Collector as well as the orders of the appellate
Court which was passed in the appeal filed by respondent No.8 and the order
passed in Revision application, an application under Section 32 of the Act was
also filed before the Member, Board of Revenue, Bihar and the same was finally
disposed of on 12.7.1995 with a direction that the Collector shall ascertain
the allegation. After final publication under Section 15(1) of the Ceiling Act,
the aforesaid excess land i.e. 4 acres 64 decimals was distributed to 8 down-trodden
people of the village and separate parchas were issued in name of the aforesaid
eight persons and the possession was also delivered to them. The District
Collector transferred the case to the Court of Additional Collector who
re-opened the case, conducted the impugned proceedings in question and held
that the land holder has no excess land.
he set aside the notification issued under Section 15(1) of the Ceiling Act.
Respondent No.5 before disposal of the application under Section 45-B of the
Ceiling Act, did not issue notice nor opportunity was given to the appellants
with whom the aforesaid lands were in possession.
Being aggrieved, the appellants filed C.W.J.C. No. 12036 of 1996 before the
High Court. Learned single Judge of the High Court dismissed the same.
Dissatisfied therewith, L.P.A. was filed before the Division Bench of the High
Court of Patna.
Division Bench of the High Court dismissed the same affirming the order passed
the learned single Judge. Aggrieved by the said order, the appellants filed the
present appeal by way of special leave petition.
heard Mr. S.B. Sanyal, learned senior counsel for the appellants and Mr. P.S. Mishra,
learned senior counsel for the contesting private respondent Nos. 8 and 9 and
Mr. Gopal Singh, learned counsel for the State of Bihar.
After taking us through the entire proceedings including the orders passed by
the authorities under the Act as well as the High Court, Mr. S.B. Sanyal,
learned senior counsel, for the appellants mainly submitted that inasmuch as
the appellants-parcha holders who were in lawful possession of the land in
question and continuing the same even today are entitled to notice and
opportunity of being heard in a proceeding arising out of Section 45 of the
Act. He also contended that in view of abuse of process by the contesting
private respondent Nos. 8 and 9 who are none else than husband and wife, all
the orders are liable to be quashed. On the other hand, Mr. P.S.Mishra, learned
senior counsel for respondent Nos. 8 and 9 submitted that in view of order of
status quo which was passed in the presence of both parties even in the absence
of the separate notice in a proceeding under Section 45-B of the Act in the
facts and circumstances, the rules of natural justice were substantially
complied with and hence there is no ground for interference by this Court under
Article 146 of the Constitution of India.
have carefully perused the annexures and relevant materials and considered the
rival contentions with reference to the pleadings.
we accept the first contention of the learned senior counsel for the
appellants, namely, notice or opportunity of being heard in a proceeding under
Section 45-B of the Act, there is no need to consider the other contentions. It
is seen from the materials placed, after proper notice, the land holder and
respondent No.8, and his wife - Sumitra Devi and their two minor children on
the appointed day, i.e., 09.09.1970 were permitted to retain 15 acres of
Class-I lands and the remaining 4.64 acres of land were declared as surplus.
Based on the same, a notification under Section 15(1) was issued on 15.01.1993.
The appeal as well as the revision filed against the same was dismissed. The
writ petition filed by the 8th respondent was also dismissed. When special
leave petition was filed against the order of the High Court, the same was
disposed of with a permission to the applicant to raise the matter before the
Collector of the concerned District. It is brought to our notice that though no
such petition was filed by the 8th respondent, subsequently his wife - Sumitra Devi
- 9th respondent herein has filed an application before the District Collector,
Bhojpur 4th respondent-herein for re- opening the case under Section 45-B of
the Act. The said application was dismissed by the District Collector and
subsequent to that an application under Section 32 of the said Act was filed
before the Member, Board of Revenue, Bihar
challenging the entire order of the District Collector. The same was finally
disposed of on 12.07.1995 with a direction to the Collector to consider the
grievance of Sumitra Devi. It is further seen that the District Collector, Bhojpur
transferred the case to the Court of Addl. District Collector who re-opened the
case and found that the land holder has no excess land and notification issued
under Section 15(1) of the Act was to be set aside. Questioning the said
proceedings, the appellants filed CWJC No. 12036 of 1996 before the High Court,
Single Judge, who heard the matter, dismissed the same by order dated
24.11.1997. Dissatisfied with the said order, an appeal was filed before the
Division Bench in L.P.A. No. 1545 of 1997 which was also dismissed affirming
the order dated 24.11.1997 passed by the learned Single Judge.
this juncture, it is relevant to mention that based on the earlier proceedings
holding that the 8th respondent herein was having excess land of 4.64 acres,
the authority concerned, after following the procedure, and after proper
verification assigned the excess lands in favour of the appellants.
to them, from that date onwards, they are in possession of the assigned lands
and they are the parcha- holders.
Since initially at the instance of 8th respondent and thereafter his wife - Sumitra
Devi 9th respondent-herein, the case was re-opened and found no excess land
available, it is useful to refer the relevant provision, i.e., Section 45-B of
the Act. The said provision was inserted by Bihar Act 22 of 1976.
Section reads as under:- 45-B. State Government to call for and examine
records.- The State Government *[or the Collector of the district who may be
authorized in this behalf] may, at any time, call for and examine any record of
any proceeding disposed of by a Collector under the Act and may, if it thinks
fit, direct that the case be reopened and disposed of afresh in accordance with
the provisions of the Act. * Deleted by Act 8 of 1997
is not in dispute that prior to the aforesaid amendment, there was no such
power enabling the Collector, Member, Board of Revenue or State Government to
re-open the case for fresh disposal which had been concluded. By the aforesaid
Section 45-B, power has been vested in the State Government or in the Collector
of the District (since deleted by Act 8 of 1997) re-opening of cases which had
been disposed of so that they may be heard afresh in accordance with the
provisions of the Act. Though the amended provision contains very wide and
extra-ordinary power, admittedly no guidelines have been provided as to when
such power is to be exercised.
fact, no period of limitation has been fixed, the result whereof may be that a
proceeding which had been initiated under the provisions of the Act and has
been concluded by final orders passed by the original, appellate and the revisional
authority can be re-opened after lapse of several years. The amended provision
also makes it clear that while exercising powers under the said provision, no
one can act as an appellate or revisional court. It is an extra-ordinary power
which can be invoked only if earlier order is found to have been passed not in
accordance with the Act. The proceedings under the amended section are quasi
judicial, the right to get opportunity of hearing cannot be denied in such
this section initially both the State Government/Collector has the
jurisdiction, but by the amendment Act 8 of 1997, State alone is empowered to
re- open such matters for valid reasons. The proceedings are quasi judicial in
nature. Considering the fact that the State Government and previously the
District Collector were authorized to re-open the issue which was concluded, we
are of the view that prior to re-opening, issue of notice and opportunity of
hearing of the land holder or person in possession of the land are mandatory.
In the instant case, from the materials it is clear that the appellants as parcha
holders, though the issue was re-opened they were not issued notice or given an
opportunity to put-forth their case. Though the High Court has concluded that
in view of the order of status quo which was passed in the presence of both
parties including the present appellants, the rules of natural justice were
substantially complied with in view of the power conferred on the State Government
to re-open a case that too even after final notification, the person/persons
who are in possession of the land in question or parcha holders are entitled
opportunity of notice and they must be heard before final decision being taken.
In this regard, it is useful to refer to the decision of this Court in Baban Paswan
and Another vs. Pratima Devi and Others, (2003) 10 SCC 239. The case relates to
determination of the ceiling area in respect of the family of Prabal Pratap
Singh and Dinesh Prasad Singh and it was then worked out that 43.26 acres was
excess land. The Respondent 1 - Pratima Devi being the sister of the aforesaid
two persons raised some dispute stating that she was not heard in the matter.
In the meanwhile the surplus land was distributed to different persons and the
appellants came into possession of some areas of that surplus land pursuant to
the allotment made in their favour in 1985. Thereafter, Prabal Pratap Singh and
Dinesh Prasad Singh filed a writ petition challenging the aforesaid determination
of the excess land and also the distribution in favour of the appellants.
Though the appellants were made parties in the said writ petition, the High
Court ultimately dismissed their writ petition and the LPA filed by those two
persons was withdrawn subsequently.
the 1st respondent Pratima Devi filed CWJC No. 323 of 1999 before the High
Court contending that she was not heard and she was vitally interested in the
matter before determining the ceiling area applicable to the family of Pratima Devi,
Prabal Pratap Singh and Dinesh Prasad Singh. In that writ petition, the
appellants in this Court were not made parties though the land was in the
lawful possession of the appellants. The writ petition was allowed by the High
Court by ordering certain areas claimed by the 1st respondent to be excluded
from the ceiling limit of the aforesaid two persons (Prabal Pratap Singh and Dinesh
Prasad Singh). When the appellants came to know about the said verdict of the
High Court in the writ petition they filed LPA by obtaining permission. But the
LPA was dismissed by a Division Bench of the High Court holding that the
appellants/parcha-holders cannot acquire any right merely because parcha has
been issued in their favour and since the acquisition has been held to be
invalid they have no option but to walk out. Questioning the said order, the
appellants have filed special leave petition before this Court. Considering the
issue which is similar to our case, this Court held as under:
We are not inclined to take the view that the appellants are not entitled to be
heard in the writ petition filed by the 1st respondent Pratima Devi merely
because the determination of the ceiling area had taken place at a time when
the appellants had no right in the land. The appellants have been put in
possession of the land way back in 1985 by holding that it was a surplus area
pertaining to the family. They being in the enjoyment of the land on the
strength of the said allotment, they must have the right to substantiate that
the allotment has been rightly made in their favour and the area was rightfully
held to be surplus area. After holding so, this Court set aside the
judgment passed by the learned Single Judge and the Division Bench of the High
Court and remitted to the High Court for disposal after affording opportunity
to the appellants. The decision therein is directly applicable to the case on
hand particularly in the light of the language used in amended Section45-B of
view of the same, we are unable to agree with the observation of the Division
Bench since the appellants had the knowledge of the order of status quo passed
by the District Collector on 24.08.2005, the rules of natural justice were
substantially complied with. We have already held that prior to re-opening,
notice to all the parties including person(s) in possession was mandatory. It
is not in dispute that the case was re-opened and earlier decision was reversed
holding that there was no excess land without issuing notice to the appellants.
Section45-B empowers the State Government to re-open the case which was already
been disposed of by the Collector under the Act. After re-opening the case, the
State Government is to dispose of the matter afresh in accordance with law. It
is, therefore, clear that before passing any order in a concluded issue, the
authority is expected to satisfy the minimum requirement of principles of
natural justice by issuance of notice and hearing. Further, the said power to
re- open has to be exercised sparingly and for adequate reasons and the
proceeding concluded earlier cannot be re-opened merely for verification
whether the orders were correctly passed. The order of re-opening should be
passed after hearing the parties concerned and where an order of re- opening
the case had been passed without hearing the party against whom it was passed,
the order suffers with legal infirmity and liable to be quashed. The reason
behind in issuing a show cause notice is precisely very clear in view of the
fact that a proceeding once concluded after a regular hearing should not be
ordered to be re-opened suo motu by the authorities concerned in a capricious
manner and reasonableness requires that parties to be affected by the same
should be heard.
this view of the matter, we are of the view that the orders impugned suffer
from the infirmity of not giving reasonable opportunity to the appellants
before reopening the proceedings. The order, therefore, is liable to be set
these circumstances, the order of the High Court both learned Single Judge and
the Division Bench are set aside.
the State Government is free to pass fresh order if they so desire under
Section 45-B of the Act after affording opportunity to all the parties
including the appellants herein.
appeal is allowed to this extent. No costs.