“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  8865   OF 2010 (ARISING OUT OF SLP (C) NO. 6950 OF 2007)

Pitambar Singh & Ors. … Appellants

Versus

State of Bihar & Ors.        … Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. A  judgment  dismissing  the  Letters  Patent  Appeal  

and confirming the order of the Single Judge has fallen  

for consideration in this appeal.  The learned Single  

Judge  of  the  High  Court  had  dismissed  the  Writ  

Petition. By order dated 31.12.1983 passed by the Sub-

Divisional Officer in Ceiling Case No. 15 of 1973, the  

objection filed under Section 10(3) of the Bihar Land  

Reforms (Fixation of Ceiling Area and Acquisition of  

Surplus  Land)  Act,  1961  (hereinafter  referred  to  as  

‘the  Ceiling  Act’)  was  rejected.   This  order  was  

confirmed by the District Collector vide order dated  

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21.5.1984 and was further confirmed in the revision by  

Resolution  dated  22.5.1986  passed  by  the  Additional  

Member,  Board  of  Revenue.   The  appellants  moved  the  

High Court by way of a Writ Petition being C.W.J.C.  

No.3824  of  1986,  which  was  dismissed  by  the  learned  

Single  Judge.   The  appellants  then  filed  a  Letters  

Patent  Appeal  (LPA);  however,  in  the  LPA,  all  the  

aforementioned orders were confirmed.

3. In order to appreciate the contentions raised by  

Shri Nagendra Rai, learned Senior Counsel appearing on  

behalf of the appellants, it is necessary to go into  

the facts of the case.

4. One Bhagwati Singh was the original land holder.  

His son was Pitambar Singh (appellant No. 1 herein) and  

Pitambar  Singh  has  two  sons,  namely,  Rabindra  Kumar  

Singh  (appellant  No.  2  herein)  and  Jitendra  Kumar  

Singh.  Bhagwati Singh was alive on 9.9.1970, which is  

the  relevant  date  under  the  Ceiling  Act.   Pitambar  

Singh  (appellant  No.1)  and  his  wife  and  sons  were  

living with Bhagwati Singh.  They were members of a  

Mitakshara joint family and were having a total family  

holding of 33.95 acres of class-II land.  The ceiling  

fixed by the Ceiling Act is 18 acres in respect of such  

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land.  The proceedings were started vide Ceiling Case  

No. 15 of 1973 against Pitambar Singh (appellant No.  

1); since, by that time, Bhagwati Singh, the father,  

had died.  Still Pitambar Singh (appellant No. 1) also  

had a major son, Ravindra Singh.  A draft statement was  

made  and  published  showing  that  Pitambar  Singh  

(appellant No. 1) was entitled to retain only 18 acres  

of land and thus, the family was holding 15.95 acres of  

land as surplus land.  On the service of the draft  

statement,  Pitambar  Singh  (appellant  No.  1)  filed  

objections under Section 10(3) of the Ceiling Act.  It  

was pointed out that whatever may be the status on the  

relevant  date  under  the  Ceiling  Act,  when  the  

proceedings were taken, Rabindra Kumar Singh (appellant  

No. 2) was major on 9.9.1970 also and as such, he also  

was entitled to his own share and he could not be held  

as  a  member  of  family  of  Pitambar  SIngh.   This  

objection was rejected by the order dated 31.10.1975.  

An appeal was preferred against this order, wherein it  

was decided that the appellants should be treated as  

two families.  However, this order was recalled and the  

appeal filed before the appellate authority came to be  

dismissed by the order dated 30.6.1976.  A revision was  

filed against this order, which stood allowed by the  

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order dated 10.5.1977, whereby the matter was remanded  

to  the  appellate  authority  for  the  purpose  of  

determining the age of Rabindra Kumar Singh (appellant  

No. 2 herein) as on 9.9.1970.  After the remand, the  

appellate  authority,  by  its  order  dated  15.12.1977,  

recorded a finding that Rabindra Kumar Singh (appellant  

No. 2 herein) was major on 9.9.1970 and accordingly, he  

was entitled to be treated as a separate family from  

that of his father Pitambar Singh (appellant No. 1).  

It  is  very  significant  to  note  that  this  order  was  

never challenged by the State by way of a revision and  

the said order attained the finality.  However, a draft  

statement under Section 11(1) of the Ceiling Act was  

finally published and gazetted under Section 15(1) of  

the Ceiling Act, on the basis of the old orders no  

draft  statement  was  published  after  passing  of  the  

order  dated  15.12.1977,  which  ought  to  have  been  

published  noting  the  change  made  by  the  appellate  

authority, whereby Rabindra Kumar Singh (appellant No.  

2) was treated to be a major and that there was no  

surplus  land  in  between  two  families,  namely,  of  

Pitambar  Singh  (appellant  No.  1)  and  of  his  son  

Rabindra Kumar Singh (appellant No. 2).

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5. It is apparent that on 9.4.1981, the amended Act  

came into force being Bihar Land Reforms (Fixation of  

Ceiling  Area  and  Acquisition  of  Surplus  Land)  

(Amendment)  Act,  1982  (hereinafter  called  ‘the  

Amendment  Act’).   Two  new  Sections  were  introduced,  

they being 32A and 32B.  They were as under:-

32A. Abatement  of  appeal,  revision,  review  or  

reference:

An  appeal,  revision,  review  or  reference  other  than  

those arising out of orders 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  further  that  such  appeal,  review  or  

reference arising out of orders passed under Section 8  

or sub-Section (3) of Section 16 as has abated under  

Section 13 of 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.

32B. Initiation of fresh proceeding:

All  those  proceedings,  other  than  appeal,  revision,  

review or reference referred to in Section 32A pending  

on the date of commencement of the Bihar Land Reforms  

(Fixation of Ceiling Area and Acquisition of Surplus  

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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 aforesaid Act,  

had  not  been  made,  shall  be  disposed  of  afresh  in  

accordance  with  the  provisions  of  Section  10  of  the  

Act.

Very surprisingly, after coming into force of the  

Amendment Act, a fresh draft statement was issued.  The  

objection was raised that such draft statement should  

never have been issued.  However, a re-determination  

was  taken  under  Section  4A  of  the  Ceiling  Act  as  

inserted  by  the  Amendment  Act  and  as  such,  a  whole  

exercise was taken and it was enquired whether there  

was any transfer of land made in between 22.10.1959 and  

9.9.1970  or  thereafter.   In  fact,  in  case  of  the  

appellants, no such transfer was effective in between  

those two dates.  However, the objection filed to the  

said draft statement was rejected by the order dated  

31.12.1983, whereby again the ceiling was re-determined  

holding the family of the appellants to be one family.  

This order was confirmed up to the Tribunal’s order.  

These orders were challenged before the learned Single  

Judge, who, though noted that there was a final order  

passed on 15.12.1977 holding that the appellants were  

entitled to be counted as two families, yet held that  

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because  of  the  language  of  Section  32B,  the  State  

Government  was  entitled  to  reopen  the  case.   The  

learned  Single  Judge  took  the  view  that  there  was  

already a final publication made under Section 11(1) of  

the Ceiling Act prior to the passing of the order of  

remand by the revisional authority and the same was not  

quashed by the appellate authority.  The learned Judge,  

therefore,  took  the  view  that  the  said  old  

notification/publication  would  be  deemed  to  be  

operative  on  the  date  of  coming  into  force  of  the  

provisions of Section 32B of the Amendment Act.  The  

learned Judge went on to compare the matter with the  

civil cases relating to partition.  The learned Judge  

also  took  a  view  that  in  view  of  the  unequivocal  

language  of  Section  11(1)  of  the  Ceiling  Act,  the  

authority  was  required  to  make  final  publication  of  

draft statement in accordance with the order passed by  

it  upon  the  objections,  irrespective  of  the  fact  

whether, according to the said order, the land holder  

was holding any surplus land or holding land within the  

ceiling limit specified under law.  The authority in  

such case where the objection by the land holder is  

upheld  has  to  make  the  draft  statement  and  final  

publication has to be made to the effect that the land  

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holder  does  not  possess  surplus  land.   However,  in  

those  cases,  where  objection  is  either  partially  

allowed  or  it  is  found  that  the  land  holder  is  

possessing  surplus  land,  it  is  incumbent  upon  the  

concerned authority to make final publication of the  

draft  statement  by  making  alteration  therein  and  

showing  that  the  land  holder  was  not  possessing  any  

surplus land.  The learned Single Judge noted that no  

such step was taken for the final publication inspite  

of passing of the order dated 15.12.1977.  The learned  

Judge, therefore, took the view that since there was no  

final  publication  of  draft  statement  under  Section  

11(1) of the Ceiling Act prior to coming into force of  

the provisions of Section 32B of the Amendment Act, the  

authority was justified in disposing of the proceeding  

afresh in accordance with the provisions of Section 10  

of the Ceiling Act and passing final order upon the  

objection filed under Section 10(3) of the Ceiling Act  

filed  on  behalf  of  the  appellants.   It  is  very  

significant to note that the learned Single Judge did  

not, in any manner, go into the merits of the matter  

nor did he give effect to the order dated 15.12.1977,  

where it was unequivocally held that the land holders  

were entitled to be treated as two families.  It was  

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pointed out during the letters patent appeal that the  

whole  course  undertaken  was  completely  illogical  and  

unjust.  Relying on Section 11(1) of the Ceiling Act,  

it was reiterated before the Division Bench in LPA that  

there  ought  to  have  been  the  finalization  of  draft  

statement and the publication thereof after passing of  

the  order  dated  15.12.1977  altering  the  earlier  

published final statement.   

6. In  our  opinion,  this  contention  was  absolutely  

right in view of the language of Section 11(1) of the  

Ceiling Act, which runs as under:-

11. Final publication of draft statement:

(1) When  the  objection  under  sub-Section  (3)  of  

Section  10,  appeal  and  revision,  if  any,  relating  

thereto  have  been  disposed  of,  the  Collector  shall  

subject to the provision of Section 15A(5) make such  

alteration in the draft statement as may be necessary  

to give effect to any order passed on the objection or  

on  appeal  or  revision  and  shall  cause  the  said  

statement with the alteration, if any, to be finally  

published at such places and in such manner, as may be  

prescribed under sub-Section (2) of Section 10 and a  

copy  thereof  duly  certified  by  the  Collector  in  the  

prescribed  manner  shall  be  given  to  the  land  holder  

concerned.

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Now, in this case, as has been noted by the High  

Court  in  the  LPA,  it  was  the  old  draft  statement  

published when in fact even the matter was not finally  

decided in between the State and the land holders.  A  

specific contention was, therefore, raised that unless  

the controversy between the State and the land holders  

was completed, there could be no draft statement, much  

less, publication thereof.  Such draft statement which  

was published prematurely, could not be treated as a  

proper  draft  statement  and  there  could  be  no  

publication thereof also.  In fact, when we see the  

order  passed  by  the  Division  Bench,  it  is  correctly  

noted therein that the publication, as contemplated, is  

to be made only after the disposal of the objection,  

appeal  and  revision  and  if  the  publication  is  made  

before  the  disposal  of  the  objection  or  appeal  or  

revision  and  no  change  is  brought  in  the  draft  

statement by the disposal of the objection, the appeal  

or the revision, the publication will hold good, but if  

any orders in such objection, appeal or revision bring  

about  a  change,  the  publication  will  not  hold  good  

because the sub-Section mandates publication of a draft  

statement as changed while disposing of the objection  

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or appeal or revision.  The Division Bench has also  

drawn a correct conclusion holding:-

“The logical conclusion, therefore, would be that by  reason of the appellate order dated 15.12.1977 final  publication of the draft statement as was made prior  thereto stood obliterated with the order passed on the  objection,  on  the  basis  whereof  the  same  had  been  published.”

The Division Bench, however, noted that no such draft  

statement was ever published altering the earlier draft  

statement.   Taking  this  in  view,  the  Court  then  

proceeded  to  hold  that  since  there  was  no  final  

publication  made  on  the  basis  of  the  order  dated  

15.12.1977,  Section  32B  came  into  operation  and,  

therefore, there could be the initiation of the fresh  

proceedings in terms of that Section.  In our opinion,  

this is a completely erroneous view.  In fact, after  

the order dated 15.12.1977 was passed, it was not for  

the appellants to do anything, but it was the duty of  

the State Government to issue a final draft statement  

on the basis of that order and then to publish it in  

the  light  of  the  order  dated  15.12.1977,  which  duty  

emanated from the positive language of Section 11(1) of  

the Ceiling Act.  It is not at all the fault of the  

land holders/appellants if the State Government did not  

do anything for four years i.e. between 16.12.1977 and  

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9.4.1981  when  the  Amendment  Act  came  into  force.  

Though the inaction on the part of the State Government  

is noted by the High Court, the Division Bench refused  

to act upon it and went on to observe:-

“Thus  although  there  is  no  just  reason  for  the  collector  not  finally  publishing  the  draft  statement  immediately after the appellate order dated 15.12.1977  was  passed,  but  still  then  in  view  of  the  mandate  contained in Section 32B of the Act, fresh proceeding  became necessary in respect of the land in question.”

We do not approve of such approach as it would be  

patently  unjust  to  give  a  premium  to  the  State  

Government  on  its  inaction.   We  reiterate  that  the  

appellants  had  nothing  to  do  with  the  creating  or  

publishing of the draft statement.  It was the duty of  

the State Government.  If the State Government did not  

follow its duty, it has to suffer and the appellants  

cannot be made to suffer on account of the inaction  

shown by the State Government either deliberately or  

otherwise.   We,  therefore,  under  the  circumstances,  

hold that Section 32B could not have been relied upon  

by  the  State  Government  and  both  the  learned  Single  

Judge  as  well  as  the  Division  Bench  have  erred  in  

legalizing the subsequent reopening of the proceedings,  

which had come to a dead end on 15.12.1977.

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7. This  is  apart  from  the  fact  that  even  on  the  

merits, the Division Bench has committed a patent error  

in treating the family as one family and proceeding to  

limit  the  entitlement  of  the  family  holding  to  18  

acres.  It was an admitted position that the father of  

Pitambar Singh (appellant No. 1 herein) was alive on  

9.9.1970.  There is further no dispute that Pitambar  

Singh  (appellant  No.  1  herein)  was  a  major  at  that  

time.  Further, there can be no dispute again that the  

major sons are not part of the family.  The definition  

of the ‘family’ runs as under:-

“’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”

Therefore, the language clearly suggests that the  

major son would be outside the definition of ‘family’.  

In this case, on 9.9.1970, Bhagwati Singh was alive and  

so  was  Pitambar  Singh  (appellant  No.  1  herein)  was  

major.  Even otherwise, Rabindra Kumar Singh (appellant  

No. 2 herein) was also a major person in the family on  

09.09.1970,  as  held  by  the  appellate  authority  vide  

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order  dated  15.12.1977.   Thus  under  no  circumstance  

could it be held to be a single family.  The Division  

Bench has tried to get over this by saying that there  

was no pleading that on or before 9.9.1970, there was  

any partition effected under the joint family and that  

Pitambar  Singh  (appellant  No.  1  herein)  became  

individually entitled to holding any land Raiyat.  Now,  

there  is  no  question  of  treating  Pitambar  Singh  

(appellant  No.  1  herein)  not  to  be  a  Raiyat,  

particularly,  when  Pitambar  Singh  (appellant  No.  1  

herein)  and  his  father  were  the  coparceners  of  a  

Mitakshara joint family holding the land in question  

and as such, each of them were entitled to the land to  

the  extent  of  their  share.   The  Division  Bench  has  

strangely held that they were only entitled to enforce  

their right by seeking disruption of the joint family  

by claiming and obtaining partition of the joint family  

properties; however, that having not been done their  

individual rights did not crystallize.  The Division  

Bench  also  mentioned  further  that  though  they  had  

“floating right” in the land in question, but having  

regard to the explanation inserted to the definition of  

the  word  ‘family’,  such  floating  right  could  not  be  

taken  into  consideration  for  determining  the  

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composition of the family for the purpose of the Act.  

We  disapprove  of  this  approach.   The  right  of  a  

coparcener  comes  in  his  favour  with  his  birth  and  

considering the definition of ‘family’, which includes  

only a person, his/her spouse and minor children the  

logic of the Division Bench is erroneous.  Explanation  

II makes the matters clear when it says that personal  

law  shall  not  be  relevant  or  be  taken  into  

consideration  in  determining  the  composition  of  the  

family for the purposes of the Act. Therefore, it will  

be clear that though it was a joint family of Bhagwati  

Singh  and  Pitambar  Singh  (appellant  No.  1)  and  

thereafter of Ravindra Singh, the rights of Pitambar  

Singh  (appellant  No.1)  and  Ravindra  Singh  as  

coparceners would be intact.  Further, since they were  

major on the relevant date, they could not have been  

held as member of one family and were entitled to be  

treated as independent families with the result that  

there would be two families and the total land being  

only 33.95 acres, there could be no surplus, as has  

been wrongly held by the Courts below, particularly,  

after the reopening of the proceedings under Section  

32B of the Amendment Act.  On both counts, therefore,  

the High Court has erred.  We, therefore, allow this  

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appeal,  set  aside  all  the  orders  starting  from  the  

order dated 31.12.1983 and hold that since the order  

dated 15.12.1977 has attained finality, there would be  

no question of any further proceedings.

8. The appeal is allowed in terms of what is stated  

above.

……………………….J.    [V.S. Sirpurkar]

 ...………………….….J.

   [Cyriac Joseph] New Delhi; October 8, 2010.

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