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CASE NO.: Appeal (civil)  7351 of 2000

PETITIONER: KUSHESHWAR PRASAD SINGH

RESPONDENT: STATE OF BIHAR & ORS

DATE OF JUDGMENT: 19/03/2007

BENCH: C.K. THAKKER & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

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

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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 be objected.  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 hearing. 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

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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 exercised.  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

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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;   "\005it 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 wrong". 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 return.   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 costs.