Kamal Krishan Rastogi
& Ors. Vs. State of Bihar & ANR. [2008] INSC 1496 (3 September 2008)
Judgment
REPORTABLE IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.5771-5772
OF 2002 Kamal Krishan Rastogi & Ors. ... Appellants Versus State of Bihar
& Anr. ... Respondents
AFTAB ALAM,J.
1.
These
two analogous appeals arise from a land ceiling proceeding that was reopened
under 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').
2.
In
the first round a proceeding was held against the land-holder Sarju Madhav
Rastogi in Case No. 868 of 1973-74. In that proceeding he was shown entitled to
only two ceiling units but having 205.83 acres of different classes of land in
his possession. The land holder raised many objections against the draft
statement. He disputed the classification of lands and claimed three more units
for his three sons who, according to him, were already major on the appointed date,
9 September, 1970 and further claimed an additional unit for his two minor
grand-sons. He stated that by gift deeds dated 28 September, 1962 he had given
21.98 acres and 21.43 acres respectively to his two married daughters: 2.56
acres were taken in acquisition by the State Government for construction of an
irrigation canal and 9.69 acres was voluntarily surrendered by him. He
contended that all these lands (adding to a total of 55.56 acres) were wrongly
shown in the draft statement made in his name. The revenue authorities
disallowed his objections and the matter finally came to the Patna High Court
in two writ petitions, C.W.J.C.No.1393 of 1977 (filed by Sarju Madhav Rastogi
and his sons) and C.W.J.C.No.1816 of 1977 (filed by the two daughters who claimed
the lands gifted by their father and objected to their inclusion in the land
ceiling proceeding against their father). The two writ petitions were allowed
by judgment and order dated 7 November, 1977 and the matter was 3 remitted to
the Sub-Divisional Officer, Bhabua, for reconsideration of the matter and to
re-examine the land-holder's objections in light of the observations made by
the court. In the fresh round following the remand by the High Court
practically all the objections raised by the land-holder were accepted and the
proceeding was dropped by order dated 25 October, 1978 passed by the Additional
Collector, L.R., Rohtas, Sasaram. The order held and found that the land-holder
possessed 8 acres of class II and 132.01 = acres of class IV lands; he was held
entitled to five units that added up to 156 acres and thus there was no surplus
land in his hands.
3.
The
matter rested thus when the Collector, Rohtas passed an order on 8 September,
1982 reopening the proceeding in exercise of the powers under Section 45-B of
the Act. (Under Section 45-B, as it stood at that time, the Collector of the
district was equally empowered to reopen a proceeding on going through the
records of the case). It is, however, the admitted position that the order to
reopen the proceeding was passed by the Collector without giving any notice or
an opportunity of hearing to the land-holder, Sarju Madhav Rastogi.
4.
After
being reopened the proceeding was renumbered as Land Ceiling Case No. 64 of
1982. A fresh draft statement under Section 10(2) of the Act was issued to the
land-holder in which he was shown to hold 200.51 acres of class I land and 0.11
acre of class IV land. In the draft statement he was 4 allowed four units and
two additional units for the minors and the rest of the land was declared
surplus.
5.
What
happened from this stage is important for the purpose of the case and we
accordingly state the facts exactly as they appear in the order of the High
Court coming under appeal. The proceeding was transferred before the Additional
Collector for disposal. On a notice issued to him the land-holder, Sarju Madhav
Rastogi appeared before the additional Collector on 30 April, 1984 and filed a
petition praying for time to file objections.
Thereafter, he
neither filed any objection nor ever appeared before the court till his death
on 27 January, 1985. It is undeniable that after the death of the land-holder
no steps were taken for substitution of his heirs in the proceeding nor any
notice was sent to the heirs of the deceased Sarju Madhav Rastogi. On 6
February, 1986, the Additional Collector sent a registered notice in the name
of Sarju Madhav Rastogi (who was by then dead) fixing the hearing of the case
on 5 February, 1986. No one appeared in response to the notice and apparently no
hearing was done on that date.
Then on receipt of
the Circle Officer's report on 25 August, 1987, the Additional Collector sent
another registered notice fixing the hearing of the case on 2 November, 1987.
This notice too was addressed to Sarju Madhav Rastogi. Finally, on 14 January,
1988 the Additional Collector passed orders holding that the land holder was
entitled to 78 acres of class I land and the 5 balance 130.56 acres of class I
land was declared as surplus. The order found and held that no gift was
executed within the period permitted under the Act and that in the earlier
proceeding 43.41 acres of land was wrongly excluded on the plea of having been
given in gift by the land-holder to his daughters.
6.
The
sons of Sarju Madhav Rastogi took the order of the Additional Collector in
appeal and revision and being unsuccessful before the revenue authorities
brought the matter to the High Court in C.W.J.C. No.7439 of 1989. Before the
High Court it was inter alia contended that the Collector's order reopening the
proceeding was incurably bad and illegal because it was passed without any
notice to the land-holder. Consequently, all the subsequent orders passed by
the revenue authorities were equally illegal and unsustainable. The High Court
rejected the submission. One of the Judges on the Division Bench, hearing the
case, took the view that having participated in the proceeding before the
Additional Collector and then having taken the matter in appeal and revision it
was no longer open to the writ petitioners to question the validity of the
Collector's order reopening the proceeding. In paragraph 13 of the judgment the
learned judge observed and held as follows:
"Mr. Rastogi,
counsel for the petitioners submitted that no notice was given to the
petitioners in connection with reopening of the land ceiling proceeding under
Section 45-B of 6 the Act and as such the same was illegal and without
jurisdiction. Consequently all the orders passed thereafter are also illegal
and not binding on the petitioners. I do not find any merit in this submission.
After proceeding was reopened, the petitioners instead of challenging the same
appeared and submitted to the jurisdiction of the court and participated in the
proceedings and as such they are estopped from challenging the same at a later
stage."
(emphasis added) The
other learned Judge constituting the bench agreed with the view taken by the
first Judge but found the issue sufficiently important to give his own reasons
for rejecting the submission of the writ petitioners. The second Judge accepted
the legal position that the reopening order was quite illegal since it was
passed without any notice to the land holder. In paragraph 17 of the judgment,
the other Judge observed as follows:
"The precise
question is whether the order of reopening of the proceeding dated 8.9.82 being
illegal, about which there can be little doubt as this was done without issuing
notice to the landholder, the subsequent orders passed by the Additional
Collector are also illegal and without jurisdiction."
(emphasis added)
Nevertheless, the learned Judge held, the illegality of the reopening order
would not affect the subsequent orders passed by the revenue authorities.
The learned Judge
observed that even though an order might be without jurisdiction the court
would decline to interfere in case the setting aside of that order should lead
to reviving another bad and illegal order. In support 7 of the principle he
relied upon a decision of this Court in Maharaja Chintamani Saran Nath Shahdeo
vs. State of Bihar, (1999) 8 SCC 16. We fail to see the application of the
Supreme Court decision or the principles invoked by the learned Judge as it is
not clear to us what other illegal order might have been revived as a result of
setting aside the reopening order passed by the Collector. It surely cannot be
the order by which the proceeding was earlier dropped because the law mandates
that before that is held to be bad and reopening is ordered the land-holder
must be given an opportunity to defend that order. In other words, the earlier
order dropping the proceeding cannot be said to be bad prima facie and declared
as such unilaterally. That being the position there is no question of an
illegal order getting revived as a result of setting aside the order to reopen
the proceeding that was admittedly passed in an illegal manner.
7.
The
learned judge then proceeded to examine the different natures and shades of
jurisdiction and cited a number of decisions to elaborate the point. But at the
end an erudite discussion he also, like the first Judge, fell back on the
argument that it was no longer open to the writ petitioners to question the
validity of the reopening order since they had fully participated in the
proceeding after it was reopened. In paragraph 22 of the judgment the learned
judge observed as follows:
8.
8
"Section 45-B empowers the State Government or the Collector of the
district authorized in that behalf at any time to call for and examine any
record of any proceeding disposed of by Collector under the Act and, if it
thinks fit, to direct that the case be reopened and disposed of afresh in
accordance with the provisions of the Act. As held by this Court, it is
mandatory to issue notice and give an opportunity of hearing to the landholder
before any order for reopening a concluded proceeding is passed. Thus, where
notice is not given the order has to be treated as illegal and, within the
extended meaning of the term, as per the aforequoted observation of the Supreme
Court, also without jurisdiction. But that does not mean that on that ground
alone the subsequent orders would also become illegal, particularly when the
petitioner participated in the proceedings, thus, acquiescing in the
jurisdiction of the Additional Collector which he undisputedly possessed."
(emphasis added) 8.
We are unable to agree with the view taken by the High Court.
Whether or not the
land holder's participation in the proceeding before the Additional Collector
would cure the illegality of the reopening order passed by the Collector is a
debatable issue but we see that on admitted facts that larger issue does not
even arise in the case. It would be hardly fair and just to hold that the
land-holder took any part in the proceeding after it was reopened by the
Collector's order. As seen above, on notice being issued by the Additional
Collector, Sarju Madhav Rastogi appeared before him on 30 April, 1984 and
prayed for time for filing objections. He then never appeared and a few months
later died on 27 January, 1985. He did not file any objection before the
Additional Collector. Had he filed one, he might 9 have taken the precise
objection that the proceeding was without jurisdiction because the reopening
order was itself illegal and without jurisdiction. Admittedly, after the death
of Sarju Madhav Rastogi his heirs were neither substituted nor they were given
any notice by the Additional Collector. They did not appear before the
Additional Collector. What is significant here is to note that the order of the
Additional Collector was made against a dead person and for that reason alone
it was unsustainable. It was only after the order of the Additional Collector
that the heirs of Sarju Madhav Rastogi came into picture when they tried to
challenge the order on many grounds including the one that the order was passed
in a proceeding that was held on the basis of the Collector's order that was
illegal and without jurisdiction. It is, therefore, quite wrong to say that it
was not open to the land holders to question the validity of the reopening order
since they had participated in the proceeding after its reopening.
9.
As
noted above, the order of the Additional Collector was also unsustainable for
the additional reason that it was passed against a dead person.
10.
For
all these reasons we are satisfied that the judgment and order passed by the
High Court as well as the orders of the revenue authorities are unsustainable
in law. The appeals are allowed and the orders of the High Court and the
revenue authorities are set aside.
11.
This
order, however, shall not stand in the way of the State Government in calling
and examining the records of the case and on being satisfied that the materials
so warrant to pass appropriate orders under Section 45-B of the Act.
....................................J.
[Tarun Chatterjee]
...................................J.
[Aftab Alam]
New
Delhi,
September
3, 2008.
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