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

J U D G M E N T

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’).

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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

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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 ½

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

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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

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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

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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

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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:

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“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

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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.   

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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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