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REPORTABLE

           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)

                          JUDGMENT 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

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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

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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.

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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

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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

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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

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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

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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

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    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

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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.

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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.

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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

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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

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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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