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CASE NO.: Appeal (civil)  26 of 2001

PETITIONER: Dadan Ram & Ors.

RESPONDENT: State of Bihar & Ors.

DATE OF JUDGMENT: 23/11/2007

BENCH: Tarun Chatterjee & P. Sathasivam

JUDGMENT: JUDGMENT

P. Sathasivam, J.

1)      Whether the \023parcha holders\024, 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 \021Act\022) is the only  question to be decided in this appeal.   

2)      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.    

3)      The 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 \026 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 15.1.1993.   Against 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 1994.   The Commissioner dismissed the appeal on merits.   Dissatisfied 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

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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 Court\022s 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.   Challenging 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.    Accordingly, 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.         4)      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.   The 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.

5)      We 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.  

6)      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.  

7)      We have carefully perused the annexures and relevant  materials and considered the rival contentions with reference  to the pleadings.

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8)      If 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 \026 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, Patna.   Learned 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.  

9)      At 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.   According to them, from that date onwards, they are in  possession of the assigned lands and they are the \021parcha- holders\022.  

10)     Since initially at the instance of 8th respondent and  thereafter his wife - Sumitra Devi \026 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.   The Section reads as under:- \02345-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.\024

       * Deleted by Act 8 of 1997

11)     It is not in dispute that prior to the aforesaid

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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.   In 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 proceedings.  Under 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.   Thereafter, 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

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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: \0235. 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.\024   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 the Act.  12)     In 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.   13)     In this view of the matter, we are of the view that the

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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 aside.   Under these circumstances, the order of the High Court both  learned Single Judge and the Division Bench are set aside.   However, 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.   Civil appeal is allowed to this extent.  No costs.