Ashok Kumar Pandey & Ors. Vs. State of
Bihar [2008] INSC
869 (9 May 2008)
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO. 7770 OF 2001 Ashok Kumar Pandey & Ors. ....
Appellant (s) Versus State of Bihar .... Respondent(s)
P. Sathasivam, J.
1) Challenge in this appeal is the
final judgment and order dated 29.1.1999 passed by the Division Bench of the
High Court of Judicature at Patna in L.P.A. No. 1173 of 1998 whereby the High Court
dismissed the said appeal of the appellants herein.
2) The brief facts in a nutshell
are:
The appellants are the
land-holders. On 11.2.1966, Ram Nandan Pandey, the father of the appellants,
mortgaged 6 Bigha 15 Katha of land to one Md. Kuddus and subsequently on
4.8.1972, he transferred the said land along with some other land to the same
mortgagee. On 11.02.1966, one Rajendra Pandey, the brother of Ram Nandan Pandey
mortgaged 6 Bigha 4 Katha 10 Dhur land to one Md. Alam.
After the death of Rajendra
Pandey, his widow Chandrakala Devi transferred the said land to Md. Alam.
3) On 27.12.1975, a proceeding
being Land Ceiling Case No.40 of 1975 was initiated against Ram Nandan Pandey
under the provisions of the Bihar Land Reforms (Fixation of Ceiling Area and
Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as "the
Act"). In the draft statement published under Section 10(2) of the Act,
the land holders were shown in possession of 126.38 acres of Class IV land and
after allowing three units for Ram Nandan Pandey, Smt.
Chandrakala Devi - the widow of
Rajendra Pandey and Ashok Kumar Pandey, 36.38 acres was shown as surplus land.
The land holders filed objections against the said claiming, inter alia, one
more separate unit for Arun Kumar Pandey and exemption of 12 Bigha 19 Katha 10
Dhur of land which were sold to the mortgagees - Md. Kuddus and Md. Alam 2
respectively. An enquiry was contemplated under section 5(iii) of the Act and
the transfers found to be genuine and valid as the transferees were found in
actual physical and cultivating possession of the lands transferred and their
names were also mutated in the revenue records of the Government. The transfers
were also effected through registered documents and for a valuable
consideration. They were also paying land revenue to the Government. After the
enquiry on 24.4.1981, the Additional Collector, Sitamarhi held that the land
holders were entitled to four units including one separate unit for Arun Kumar
Pandey and the transfer of land in favour of Md.
Kuddus and Md. Alam were genuine
and valid transfers.
Accordingly, on 5.5.1981, the
Additional Collector having found no surplus lands in possession of the land
holders, dropped the proceeding. The State of Bihar did not prefer any appeal,
revision or review against the order dated 24.4.1981 or against the order dated
5.5.1981 and those orders were allowed to become final. After dropping of the
proceeding, the Ram Nandan Pandey and his sons transferred 31.41 = acres of
land to different persons for their legal necessity. Smt.
3 Chandrakala Devi and her
daughters namely Usha Devi and Manju Devi transferred 29.24 acres of land to
different persons for their legal necessity. In December, 1983, Ram Nandan
Pandey died and by that time his third son Dhruv Kumar was a major. On
22.4.1993, a notice under Section 45 B of the Act was sent by the Collector,
Sitamarhi to show cause as to why the case be not re-opened on the ground that
12 Bigha 19 Katha 10 Dhur of land transferred to Md. Kuddus and Md. Alam were
illegally exempted as no previous permission in writing of the Collector was
obtained and thus the transfers have been made with mala fide intention of
defeating the object of the Act. On 16.8.1993, the land holders replied to the
notice contending that the lands were rightly excluded after conducting proper
enquiry and that order of exemption had become final as no appeal, revision or
review was preferred by the State against those orders before any higher forum
as prescribed under the provisions of the Act and that the matter cannot be
re-opened. On 26.6.1995, the Collector, Sitamarhi re-opened the case in
exercise of his power conferred under Section 45 B of the Act after more than 4
14 years. On reconsideration of the materials, the Collector transferred the
same for disposal to the Court of Additional Collector, Sitamarhi. On
10.10.1995, the Additional Collector, Sitamarhi in Land Ceiling case No.
46/76/78/93 did not accept the two transfers made in favour of the
mortgages-Md.
Alam and Md. Kuddus respectively
and after granting two units for Ashok Kumar Pandey and Arun Kumar Pandey and
20 acres of land for Dhruv Kumar Pandey, third son of Ram Nandan Pandey,
declared 46.39 acres of land as surplus on the ground that the sale deed were
executed after 9.9.1970 without obtaining prior permission of the Collector and
therefore, the transferred lands have to be included within the ceiling area to
be retained by the land-holders and ordered for draft publication of land. The
appellants-land holders filed objections under Section 10(3) of the Act stating
that the draft publication was not in conformity with the order of re-opening
of the case and that the fishing enquiry is not permissible in law, that 31.42
= acres of land transferred after dropping of the proceeding out to have been
excluded from the land of land holders, that Dhruv Kumar Pandey was entitled to
a 5 separate unit, that 5.91 = acres of land acquired by the State ought to be
excluded from the land of the land holders, that 39.61 acres of land lying
between two bundhs ought to be classified as Class V land and land belonging to
other ought to be excluded from the land of the land holders. On 22.12.1995,
the Additional Collector, Sitamarhi in Land Ceiling Case No. 40/75 78-93 came
to the conclusion that it is not competent to examine the authority,
jurisdiction and decision of the Collector to re-open the proceeding and that
once the case is re-opened, the entire exercise has to be carried afresh and de
novo. However, he exempted 0.90 acres of homestead land and 1.37 acres of land
transferred before 9.9.1970 from the land of land holders. All other objections
of land-holders were rejected and 24.11 acres of land was declared as surplus
and the office was directed to take steps for publishing the final statement as
contemplated under Section 11(1) of the Act. On 5.1.1996, final statement was
published. Aggrieved by the order dated 22.12.1995, the appellants filed an
appeal being Land Ceiling Appeal No.2 of 1996 and the same was rejected by the
Collector, Sitamarhi 6 on 3.6.1996. Being aggrieved by the said order, the
appellants filed Revision No. 50 of 1996 before the Board of Revenue, Bihar,
Patna and the same was also dismissed on 26.12.1997.
Against that order, the appellants
approached a single Judge of the Patna High Court by way of writ petition being
C.W.J.C.
No. 2912 of 1998 and the same was
also dismissed on 10.9.1998. Again the appellants filed L.P.A. No. 1173 of 1998
before the Division Bench of the High Court and the same was also dismissed on
29.1.1999. Against the said order, the appellants preferred the above appeal
before this Court.
4) Heard Mr. Lakshmi Raman Singh,
learned counsel for the appellants and Mr. Gopal Singh, learned counsel
appearing for the respondent-State.
5) The only point for
consideration in this appeal is whether the appellants have made out a case for
interference in the impugned order of the Division Bench of the High Court and
earlier orders of Revenue Authorities? 6) Learned counsel appearing for the
appellants mainly contended that after inordinate delay of 14 years, the
Collector 7 was not justified in re-opening a concluded proceeding in exercise
of power under Section 45-B of the Act. He also contended that even if the
transfers made by the land holders in the year 1972 in favour of the mortgagees
are to be ignored on the ground that the same was without obtaining prior
approval of the Collector in writing as required under Section 5(ii) of the
Act, still the mortgaged lands, the possession of which has been handed over to
the mortgagees by the mortgagor-land holders, cannot be included within the
lands of the land holders in view of the definition of "land holder"
as defined in Section 2(g) of the Act.
7) In order to appreciate the
above contentions, it is useful to refer certain provisions from the Act:
"Section 2(ee) -
"Family" means and includes a person, his or her spouse and minor
children;
Explanation I.- In this clause the
word "person" includes any company, institution, trust, association,
or body of individuals whether incorporated or not.
Explanation II.- The personal law
shall not be relevant or be taken into consideration in determining the
composition of the family for the purposes of the Act;
"Section 2(g) - `land holder'
means a family as defined in clause (ee) holding land as raiyat or as under-raiyat
or a mortgagee of land in possession or holding land permanently 8 settled by
Government or lessee of land not resumable by Government."
"Section 9(2) - Where the
land held by the land-holder includes land transferred by him in accordance
with or in contravention of the provisions of clause (ii) of sub-section (1) of
section 5, the land so transferred in accordance with or in contravention of
clause (ii) of sub-section (1) of Section 5 shall, to the extent of the ceiling
area admissible to the land holder, be deemed to have been selected by him for
retention within the ceiling area, and where the total area of such land is
less than the ceiling area admissible to him, the land holders shall select the
balance of ceiling area from his remaining land:
Provided that where the land so
transferred in accordance with or in contravention of clause (ii) of sub-
section (1) of Section 3 is equal to or more than the ceiling area admissible
to him and if because of the selection under sub-section (2) the land holder's
homestead cannot be trained within his ceiling area, the land holder may be
permitted to hold his homestead subject to a maximum limit of two acres
only."
"Section 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.
* Omitted by Act 8/97."
8) Insofar as the first contention
regarding re-opening of the case under Section 45-B of the Act is concerned, it
is seen that the District Collector, finding fault with the disposal of the
case, re-opened the case after issuance of show cause notice and after hearing
the objection of the land holders. A 9 reading of the above provisions, mainly
Section 45-B, makes it clear that after affording an opportunity to the land holder,
the Collector of the District (since omitted by Act No.8/97) or the State
Government call for and examine any proceeding and direct the case to be
re-opened and dispose of afresh. In absence of any time limit, the action taken
by the Collector in order to ascertain the actual/eligible land holdings,
cannot be faulted with. However, the said provision mandates that aggrieved
person must be afforded an opportunity by way of show cause notice. It is seen
from the order of the Additional Collector, the show cause notice was issued to
the land holder and they were heard on the point of draft publication prior to
passing of the order. The order further shows that the enquiry report was
received from the Circle Officer, Belsand, regarding the partition taken place
between the members of the family of the land holders. The order further shows
that after taking into consideration all the relevant facts, the order
regarding the draft publication was passed on 10.10.1995. Accordingly, we
reject the contention of the appellants.
10 9) Coming to the other
contention, it is seen from the materials that Ram Nandan Pandey and Rajendra
Pandey on 11.2.1966 had mortgaged 6 Bigha 15 Katha and 6 Bigha 4 Katha 10 Dhur
to Md. Kuddus and Md. Alam respectively and both the land holders executed
registered sale deeds in favour of the mortgagees on 4.8.1972 and 2.8.1972
respectively. It further shows that at the time of passing of the order of
draft publication, the issue had already been discussed at length and the title
of the land was not transferred. The mortgaged land is essentially considered
as the land of the land holder.
In those circumstances, the
mortgage of the land in 1966 cannot be considered as a transfer prior to
9.9.1970.
Admittedly, the lands were
transferred by registered sale deed after 9.9.1970 and the title has passed
only thereafter.
10) As per the provisions of
Section 18 read with Section 2 (eee) of the Act, Ashok Kumar Pandey and Arun
Kumar Pandey were allowed to retain 30 acres of Class IV land each by treating
them major on 9.9.1970 and both the land holders have inherited 10 acres each
after the death of their father.
11 After coming into force of the
Act, no person can hold the land beyond the ceiling limit after the appointed
day i.e., 9.9.1970.
It is further seen that Ashok
Kumar Pandey has inherited 10 acres of land from his father and after the death
of his father he was holding 40 acres of land. Similar situation was there in
the case of Arun Kumar Pandey. Taking note of all these relevant materials, the
Additional Collector, by proceedings dated 22.12.1995, arrived at a conclusion
that an extent of 24.11 acres of land is left as surplus and declared the same
as surplus land.
11) The abovementioned order of
the Additional Collector was duly considered by the Collector and by order
dated 3.6.1996 after finding no error, he refused to interfere and dismissed
the appeal. The revision filed against the order of the Collector was heard by
the Board of Revenue. The Additional Member of the Board also considered the
relevant materials including the orders passed by the Additional Collector,
Collector and other documents and concurred with the decision. In fact, the
Board has permitted the appellants 12 herein to approach the Collector for
exercise of option for retaining the land of their choice in accordance with
law.
12) Dissatisfied with the order of
the Revenue Authority, the appellants took the matter to the High Court. The
learned single Judge correctly concluded that transfers made on 2.8.1972 and 4.8.1972
having been made after 9.9.1970 with or without permission be treated as lands
selected by the land holders for the purpose of retention of their lands within
their ceiling units in terms of Section 9(2) of the Act and dismissed their
writ petition. The said order of the learned single Judge was confirmed by the
Division Bench.
13) As pointed out earlier, in
view of Section 45-B of the Act and the fact that the transfers of land in
favour of mortgagees on 2.8.1972 and 4.8.1972 having been made after the
notified date, i.e., 9.9.1970 without prior permission from the authority
concerned, the same are to be treated as lands selected by the land holders for
the purpose of retention of their lands within their ceiling units and
consequently, the orders of Revenue Authorities cannot be faulted with. It is
13 also not in dispute that the show cause notice was issued to the appellants
and thereafter after affording a further opportunity, an order was passed
determining their surplus land.
14) In view of the statutory
provisions and of the fact that the appellants were afforded adequate
opportunity before passing the order declaring certain lands as surplus lands
and all the relevant aspects having been duly considered by the hierarchy of
revenue authorities as well as the High Court, we do not find any valid ground
for interference. Consequently, the appeal fails and the same is dismissed.
There shall be no order as to costs.
........................................J.
(Dr. Arijit Pasayat)
.........................................J.
(P. Sathasivam)
.........................................J.
New Delhi; (Dr. Mukundakam Sharma) May 9, 2008.
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