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CASE NO.: Appeal (civil)  1263 of 2001

PETITIONER: Santosh Kumar Singh and Ors.

RESPONDENT: The State of Bihar and Ors.

DATE OF JUDGMENT: 01/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment of a Division  Bench of the Patna High Court dismissing the Letters Patent  Appeal filed by the appellants.   

2.      The factual controversy lies in a very narrow compass.                                                                   Proceedings under the Bihar Land Reforms (Fixation of   Ceiling Area and Acquisition of Surplus Land) Act, 1961 (in  short the \021Act\022) were initiated against the landholder family of  Budh Prakash Singh.  Smt. Kamla Devi was daughter in law  and Smt. Bageshwari Devi was grand daughter of aforesaid  Budh Prakash Singh.  In the said Land Ceiling Case No.  23/73-74 after draft publication and on consideration of the  objection made by Budh Prakash Singh, orders were passed  by the L.R.D.C., Aurangabad against which the aforesaid  persons filed an application for revision before the revisional  authority.  By order dated 7.4.1977 the revisional authority in  revision case No.1986/76 accepted some of the objections of  Budh Prakash Singh, but parts of the objections were rejected.   However, as final publication was not made, after the  amendment of the Act by Bihar Land Reforms (Fixation of  Ceiling Area and Acquisition of Surplus Land) Amendment Act,  1982 (hereinafter referred to as the \021Amendment Act\022), the  matter was taken afresh from the stage of Section 10 of the  Act.  At the stage of fresh proceedings following objections  were raised: (a)     The classification of lands was not properly made. (b)     The lands which belonged to the son Chittaranjan  Prasad Singh (now deceased) should not have been  included.  (c)     The lands gifted to Smt. Kamla Devi, daughter-in- law; lands gifted to Smt. Bageshwari Devi, grand  daughter and lands gifted to two daughters, namely,  Nirmala Kumari and Sashibala within the grace  period should be excluded.\024

3.      L.R.D.C. by order dated 14.5.1984 accepted part of the  objection and ordered for exclusion of the land gifted during  grace period in favour of two daughters, namely, Nirmala  Kumari and Sashibala.  However, rest of the objections  including the objection relating to classification of land was  rejected.  A Ceiling Appeal was preferred and the appellate

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authority by order dated 10.9.1985 accepted part of the  objection.  Certain lands which were earlier classified as Class- I land were held not properly to have been done.  However, the  other part of the classification was held to be valid.  The gift  made in favour of the two daughters was confirmed but the  claim relating to deletion of land gifted in favour of daughter- in-law, Kamla Devi and grand daughter Bageshwari Devi was  rejected.  Thereafter revision case No.387/85 was preferred.   The revisional authority by revisional order dated 28.4.1987,  rejected the same.  A writ petition was filed before the High  Court and the primary stand was relating to classification  made to declare certain lands as surplus.  Similarly, non- exclusion of the gifts in favour of Kamla Devi and Bageshwari  Devi were questioned.  The State\022s stand was that the  amended definition of \023landholder\024 as amended in 1973 was  applicable.  It was pointed out that the land ceiling  proceedings were not initiated against any \023individual\024 but  against the family.  In view of the definition of the expression  \023family\024, Kamla Devi, Bagehswari Devi and Chittaranjan  Prasad Singh come within the definition of \023family\024 and their  land stood included.  So far as the classification is concerned,  it was submitted that after due verification and with reference  to irrigational facility available the classification was made.                                                                                               4.      Learned Single Judge of the High Court did not find any  substance in the stand taken in the writ petition.  It was noted  that gift was made in favour of Bageshwari Devi when she was  child of about 8 months and even after such alleged gift rent  was paid to Budh Parkash Singh and the lands purportedly to  be gifted to Kamla Devi and Bageshwari Devi were, in fact, in  the possession of Budh Parkash Singh. The writ petition was  dismissed.  In the writ appeal, the stand taken was that the  effect of the amended provisions i.e.  Sections 32A and 32B  had not been kept in view.  It was submitted that there was no  de novo  enquiry and that having been not done, the judgment  of the learned Single Judge was unsustainable.  The Division  Bench did not find any substance in the plea and with  reference to Section 10 of the Act,  writ appeal was dismissed.                                                                               

5.      In support of the appeal, learned counsel for the  appellant submitted that the true effect of the amendment has  not been kept in view.  If the draft statement was repeated  there was no need for inserting Sections 32A and 32B.   According to him, there was need for enquiry and the  procedures contemplated under Sections 6, 8 and 9 were to be  adopted.        

6.      Learned counsel for the respondents on the other hand  supported the orders.  

7.      At this juncture, it would be appropriate to take note of  Sections10, 11, 32A and 32B of the Act.  They read as follows:

\02310. Preparation of draft statement,--(1) On the  basis of the information given by or on behalf of  the land holder under Section 6, 8, 9 or the  information obtained by the Collector under  Section. 7, checked in the prescribed manner, the  Collector shall cause a draft statement to be  prepared showing the following particulars

(a) the area and description of- (i)     each class of land held by the land- holder and the land selected by him

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which he desires to be included within  his ceiling area ; (ii)    orchards held by him and the orchards  in compact blocks he desires to retain ;

(iii)   homestead land and the pucca  structures including the land necessary  for the use and enjoyment of such  structures, held by him on the date of  commencement of this Act, and such  land pucca structures including land  necessary for the use and enjoyment of  the pucca structures which he desires  to retain ;

(b) area and description of land of each of the  categories in clause (a) which is allowed by the  Collector to be held and retained by the land  holder under Section 5; (c) the area and description of the land which is  in excess of the limit permissible under Section 5  and which the land holder is not entitled to hold  or retain under this Act (hereinafter to be called_  the ‘surplus’ lead);

2[(c-1) the area and description of land  transferred by the land-holder in accordance with  or in contravention of the provisions of clause (ii)  of sub-section (1) of Section 5 ;

(c-2) the substance of the findings of the Collector  under clause (iii) of sub-section (1) of Section 5;  

(c-3) the substance of the recommendation and  order regarding exemption under Section 29; and]

(d) any other particular which may be prescribed.       [(2) The draft statement shall be published in the  Official Gazette of the district and at such places,  and in such manner, as may be prescribed:

    Provided that a copy of the draft statement  shall be served on the landholders concerned or  on their guardian or guardians, as the case may  be, by registered post with acknowledgment due  which shall be conclusive evidence of the service  of such notice.]

[(3) Any objection to the draft statement in respect  of the matters specified in clause (a), (b), (c) and  (d) of subsection (1) received within 30 days of the  publication of the draft statement or service  thereof under sub-section (2), whichever is latter.  preferred by any person having any claim or  interest in said matters shall be considered by the  Collector who shall, after giving the parties a  "reasonable opportunity of being heard and  adducing evidence, pass such order as he thinks  fit.

    Provided that the Collector may on an  application made by the land-holder or a person  having claim or interest in the land extend the  period of filing objection by another fifteen days.]

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11.     Final publication of draft statement--((1)  When the objection or claim if any, preferred  under sub-section (3) of Section 10 has been  disposed of, the Collector shall, whether there is  any surplus land or not, make such alteration in  the draft statement as may be necessary to give  effect to any order passed on the objection or  claim and shall cause the said statement with the  alteration, if any, to be finally published in the  official Gazette of the district and in such place  and in such manner as may be prescribed and a  copy thereof duly certified by the Collector in the  prescribed manner, shall be sent to the land- holder by registered post with acknowledgment  due.]

((2) Copies of such statement duly authenticated  in the prescribed manner shall by the Collector  within such period and to such authority or  authorities, as may be proscribed.] 32-A.   Abatement of appeal, revision, review or  reference.-An appeal, revision, review or reference  other than those arising out of order passed  under Section 8 or sub-section (3) of Section 16  pending before any authority on the date of  commencement of the Bihar Land Reforms  (Fixation of Ceiling Area and Acquisition of  Surplus Land) (Amendment) Act, 1982 shall abate      Provided that on such abatement, the  Collector shall proceed with the case afresh in  accordance with the provisions of Section 10:

    Provided further that such appeal, revision,  review or reference arising out of orders passed  under Section 8 of sub-section (3) of Section 16 as  has abated under Section 13 of the Bihar Land  Reforms (Fixation of Ceiling Area and Acquisition  of Surplus Land) (Amendment) Ordinance, 1981  (Bihar Ordinance No. 66 of 1981) shall stand  automatically restored before the proper authority  on the commencement of this Act.

32-B     Initiation of fresh proceeding.--All those  proceedings other than appeal, revision, review  or reference referred to in Section 32-A  pending on the date of commencement of the  Bihar Land Reforms (Fixation of Ceiling Area  and Acquisition of Surplus Land) (Amendment)  Act, 1982 and in which final publication under  sub-section (1) of Section 11 of the Act as it  stood before the amendment by the aforesaid  Act, had not been made, shall be disposed of  afresh in accordance with the provisions of  Section 10 of the Act".]

8.      A bare reading of Section 32-A shows that where an  appeal, revision, review or reference other than those arising  out of order passed under Section 8 or sub-section (3) of  Section 16 is pending before any authority on the date of  commencement of the Act, the same shall abate.  The proviso  is of significance.  It stipulates that the Collector shall proceed  with the case afresh in accordance with provisions of Section

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10.   The interpretation given by the learned counsel for the  appellants is that the use of the expression \023afresh\024 means  that whatever was done earlier has to be totally obliterated  and there has to be a fresh look on all aspects including  classification and status of the parties involved.  Sub-section  (1) of Section 10 deals with preparation of draft statement.   Sub-section (3) is of considerable importance.  It provides that  when there is any objection to the draft statement in respect of  the matters specified in clause (a), (b), (c) and (d) of sub- section (1) received within 30 days of the publication of the  draft statement or service thereof under sub-section (2), which  ever is latter, when preferred by any person having claim or  interest in the matters shall be considered by the Collector  and after giving reasonable opportunity of adducing evidence  the Collector shall pass such orders as it deems fit.  Even  though there is repetition of the draft statement which was  prepared earlier, the scope for making objection as provided  under sub-section (3) of Section 10 still exists.  If the noticee  has any objection to any part of the draft statement in respect  of the specified matters, the same can be taken within the  stipulated period and the authorities are required to consider  them. There is also provision for adducing evidence.  9.      That being so, the stand that the person who wants to  prefer the objection is deprived of adequate opportunity is  without substance.                                       

10.     In view of the above position, there is no merit in this  appeal which is accordingly dismissed.  There will be no order  as to costs.