IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9052 of 2004 ====================================================== Amar Nath Choudhary substituted by his heirs:- 1. Shanti Devi w/o Late Amarnath Choudhary, res,, of village Rupas Pur P.O.Khudna Rupaspur, P.S. Routara, Katihar 2. Manju Devi d/o Late Amarnath Choudhary w/o Sri P.N. thakur G-44 Hudeo Palace near Ansal Plaza, New Delhi 3. Veena Devi d/o Late Amarnath Choudhary w/o Sri A.K. Thakur at present res,, of Bahadur Ganj, Kishanganj 4. Viajy Kumar Choudhary 5. Pankaj Kumar Chouadhy 6. Randhir Kumar Choudahry @ Randhir Kumar all son of Late Amarnath Choudhary residents of village Rupas Pur P.O.Khudna Rupaspur, P.S. Routara, Katihar 7. Shushma Devi d/o Late Amarnath Choudhary w/o Sri S.S. Jha General Manager Telecommunication Solapur Maharshtra 8. Vidya Kumari d/o late Amarnath Choudhary w/o Professor Purnendu Kr. Jha C/o Prof. M.K. Jha R/o Millan Palli Kishanganj Versus 1. The State Of Bihar 2. The Land Reforms Commissioner, Old Secretariat, Patna 3. The District Collector Katihar 4. The Additional Collector In charge ceiling Katihar 5. The Anchal Adhikari Korha, Katihar .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Choubey with Mr. Shobha Nath Jha For the State Mr. Hare Ram Singh A.C. to G.P.23 ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 10 14-08-2012 The original writ petitioner has been substituted by his heirs and legal representatives vide order dated 6.8.2012 passed in interlocutory application bearing I. A. No. 6725 of 2007. For the sake of convenience, the petitioners would be referred to as the original writ petitioner. Present writ application under Article 226 of the Constitution of India has been filed for issuance of appropriate writ/order/direction for quashing the notice dated 15.6.2004 Patna High Court CWJC No.9052 of 2004 (10) dt.14-08-2012 2 / 8 2 (Annexure-7) issued by the Respondent-Additional Collector in relation to Ceiling Case No. 71/73-74 informing the petitioner that the aforesaid ceiling case would be initiated afresh as the proceeding stood abated under section 32A of the Land Ceiling Act ( for short the ‘Act’) and the original writ petitioner was directed to appear along with the details of the land held by him as well as the genealogy of the family as on 7.7.1970. The original writ petitioner also sought quashing of the order dated 14.6.2004 (Annexure-8) in pursuance whereof Land Ceiling Case No. 71/73-74 was directed to be initiated afresh under section 32B of the Act which earlier stood disposed of vide order dated 29.01.1988 (Annexure-1). Let it be recorded that the notice (Annexure-7) impugned in the application is in pursuance of the order dated 14.6.2004 (Annexure-8). Matrix of facts leading to the writ application may be summarized as under:- A land ceiling proceeding bearing L. C. Case No. 71/73-74 was initiated against the father of the original writ petitioner and draft publication under section 10(2) of the Act was issued and served showing total area of 434.35 acres of different categories of land(on conversion to Class IV). He was found entitled to only 26.26 acres of land. The father of the original writ petitioner filed his objection under section 10(3) of the Act. Before the matter could be concluded the father of the original writ petitioner died on 14.6.1982. A fresh draft application under section 10(2) of the Act was served upon the original writ petitioner who was substituted in place of his deceased father. The original writ petitioner filed objection under section 10(3) of the Act. The Respondent-Addl. Collector Patna High Court CWJC No.9052 of 2004 (10) dt.14-08-2012 3 / 8 3 (Collector under the Act) by an order dated 13.7.1976 disposed of the objection filed by the father of the original writ petitioner. It is the case of the petitioner that an appeal thereagainst was also preferred but in the meantime gazette notification under section 15(1) of the Ceiling Act was published on 27.8.1976 although the appeal was pending. The appeal preferred by the father of the petitioner before the Divisional Commissioner was ultimately presented before the Respondent-Collector as due to change in the Act the Collector became the appellate authority. Accordingly, Ceiling Appeal No. 456/1977 was filed on 8.01.1977 which was admitted on 26.7.1979. During the pendency of the aforesaid ceiling appeal No.456/1977, the Act was amended and all the pending appeals were held to have abated. In such circumstance, the matter was again taken up by the Addl. Collector and during the pendency thereof the father of the original writ petitioner died on 14.6.1982 whereafter the original writ petitioner was substituted in his place and a fresh draft publication was served upon him in which some more lands of other persons were included in the land of the land holder. The original writ petitioner filed his objection under section 10(3) of the Act raising diverse objections. The said matter was ultimately disposed of by order dated 29.01.1988 (Annexure-1) allowing the land holder to hold 7 1/10 units and no surplus land was held by him. Thereafter a notification under section 11(1) of the Act was made on 3.5.1989 (Annexure-2) which was published in the gazette on 16.5.1989 (Annexure-3). A notice dated 31.01.1991 (Annexure-4) thereafter was issued in the name of the late father of the original writ petitioner. The original writ petitioner in response thereto appeared before the Respondent-Collector and informed that the Patna High Court CWJC No.9052 of 2004 (10) dt.14-08-2012 4 / 8 4 noticee namely Hari Mohan Choudhary, father of the original writ petitioner, had already died. The matter was thereafter adjourned. On enquiry, the original writ petitioner learnt that the authorities had instituted a proceeding vide Ceiling Case No. 585/90-91 for re-opening of the case which was being pursued against the deceased father of the original writ petitioner. In such circumstance, the original writ petitioner filed a writ petition bearing CWJC No. 1719 of 1991 for quashing of the said proceeding including the notice whereby the authorities sought re- opening of the ceiling proceeding bearing Ceiling Case No. 71- 73-74. This Court by order dated 28.07.1999 (Annexure-6) allowed the writ application and the notice of re-opening of the ceiling case was quashed. The petitioner thereafter was again served the impugned notice dated 15.6.2004 (Annexure-7) stating therein that the ceiling proceeding is being initiated afresh on the ground of the same stood abated under section 32B of the Act. Petitioners have challenged the notice (Annexure-7) and the order (Annexure-8) on the ground that they are illegal, perverse and without jurisdiction. I have heard Mr. Choubey for the petitioner and A.C. to G.P.23 for the State. A counter affidavit has been filed on behalf of the Respondent State . Learned counsel for the petitioner contended that the ceiling proceeding after re-initiation was finally concluded by order dated 29.01.1988 (Annexure-1) followed by a notification published under section 11(1) of the Act (Annexure-2). No appeal thereagainst was filed. As there was no proceeding pending in the eye of law, the authorities were not entitled to re-initiate the ceiling proceeding (L.C. Case No.71/73-74) taking recourse to the Patna High Court CWJC No.9052 of 2004 (10) dt.14-08-2012 5 / 8 5 provisions under section 32B of the Act as no lis was pending in the year 2004 after issuance of notification and publication thereof under section 11(1) of the Act. Re-initiation of the proceeding under section 32B of the Act is, therefore, ex facie illegal and arbitrary. He submits that prior to this the Respondent had initiated a proceeding under section 45B of the Act which was challenged by the original writ petitioner and the same was set aside by this court vide order dated 28.7.1999 passed in CWJC No. 1719 of 1999. It has, thus, been argued that, in the facts and circumstances of the case, section 32B of the Act cannot be invoked. Mr. Choubey, however, takes a stand that in the order dated 29.01.1988 (Annexure-1) certain exclusions of land have been allowed subject to taking up proceeding(s) under section 29 of the Act against the deity as also against the beneficiaries of deeds of gift but while doing so the entire proceeding cannot be re-opened/re-enquired and re-judged. If the proceeding(s) which were required to be taken up as per the order dated 29.01.1988 (Annexure-1) have hitherto not initiated then the respondents were free to initiate those proceeding(s) as per the Act and bring them to their logical conclusion. The petitioners shall have no objection in doing so by the respondents in the light of the order dated 29.01.1988 (Annexure-1) A counter affidavit has been filed on behalf of the State Respondent. Learned counsel for the State explaining the reasons for taking steps for re-opening and re-initiation of the proceeding under section 32B of the Act has relied on AnnexureD/1 which is the order of the Addl. Collector dated 8.7.2004. This Court, for better appreciation, extracts the relevant part/portion of the aforesaid order:- Þ------ fnukad 2-5-89 ds vkns”k Qyd esa Patna High Court CWJC No.9052 of 2004 (10) dt.14-08-2012 6 / 8 6 rRdkyhu ihBklhu inkf/kdkjh ds }kjk ;g fu.kZ; ikfjr fd;k x;k gS fd Lo0 ewy Hkw&/kkjh ds lR;kiu izfrosnu esa Jh y{eh ukjk;.k th] Jh jkes”oj th ds uke 65-13 ,dM+ Hkwfe n”kkZ;h xbZ gS tks ,d bdkbZ ls vf/kd gSA vr% ikfjr vkns”kkuqlkj Jh y{eh uk0 th ,oa Jh jkes”oj th ds uke /kkjk &29 ds v/khu vfHkys[k [kksy dj izLrqr djsa lkFk gh Hkw&/kkjh ds cguksa ,oa mudh larkuksa ds uke vUrfjr Hkwfe dk O;ksjk fudky dj ;fn lhek ls vf/kd Hkwfe ik;h tk; rks muds uke Hkh vyx vfHkys[kk [kksysaA 11¼1½ ds vUrxZr vf/klwpuk dk izdk”ku fd;k x;k ijUrq 29 ds vurxZr vyx ls vfHkys[kk la/kkfjr ugha fd;k x;k ,oa Hkw&/kkjh ds }kjk tks nku i= fn;k x;k mldh oS/krk ds lEcU/k esa vyx ls lays[kk la/kkfjr ugha fd;k x;kA fnukad 8-1-91 dks rRdkyhu vij lekgRrkZ ds }kjk ;g vfHkys[kk 45 ¼ch0½ iqu% izkjEHk djus ds fy, lekgRrkZ dks Hkstk x;kA D;ksafd rRdkyhu viju lekgRrkZ dk ;g dguk Fkk fd bl esa dqN rF; NqV x;k gSA------Þ On perusal of the order dated 8.7.2004 (Annexure-D/1) it is more than evident that while disposing of the L.C. Case No. 71/73-74 finally after re-initiation by order dated 29.01.1988 (Annexure-1), the respondents were obliged to initiate fresh proceeding under section 29 of the Act against the deity in whose favour the land holder had claimed to have donated 65.13 acres of land and accordingly the same was excluded from the aforesaid ceiling proceeding. Alienation of land in favour of female members of the family as well as their wards were also accepted subject to taking up proceedings against them in accordance with the Act if they held land in excess of the permissible ceiling unit. The respondents, it appears, slept over the said order and no proceeding was taken although required to be taken up as per the Patna High Court CWJC No.9052 of 2004 (10) dt.14-08-2012 7 / 8 7 order dated 29.01.1988 (Annexure-1). Such proceedings if at all merits fresh initiation in the light of the direction/observation made in the order dated 29.01.1988 (Annexure-1) then the respondents are free to initiate and bring them to their logical conclusion as no land holder can be allowed to hold land in excess of the ceiling unit(s) they are entitled to hold as per the Act. Counsel for the petitioner has fairly taken a stand that the petitioners shall have no objection if fresh proceeding(s) is/are initiated against the deity and other family members of the land holder in whose favour alienations were made and allowed with conditions. Petitioners have, however, taken strong exception to taking recourse tore-initiation and re-consideration of the claim of the land holder raised in L.C. Case No. 71/73-74 which finally stood concluded by order dated 29.01.1988 (Annexure-1) followed by notification under section 11(1) of the Act (Annexure-2). From the submissions of the parties and the facts noticed hereinabove, it is evident that the original writ petitioner is not raising any objection to the jurisdiction of the authority to take up the proceeding(s) as per the order dated 29.01.1988 which hitherto could not be initiated and to bring those proceeding(s) to their logical conclusions in accordance with law. Petitioner has objection only to the extent that the order dated 29.01.1988 (Annexure-1) cannot be re-appraised taking recourse to the provisions under section 32B of the Act as the said ceiling proceeding finally concluded after notification under section 11(1) of the Act crystallizing the rights of the parties. The stand of the respondents as seen from the counter affidavit is that the ceiling authority were required to take up the proceedings as per the order dated 29.01.1988 (Annexure-1) against the deity and Patna High Court CWJC No.9052 of 2004 (10) dt.14-08-2012 8 / 8 8 others beneficiaries of the deeds of gift made in favour of the family members of the land holder and for one reason or the other those proceeding could not be initiated against them as per the order dated 29.01.1988 (Annexure-1) and, as such, the only way out was to re-initiate the proceeding taking refuge under section 32B of the Act. . Considering the facts and circumstances of the case, this Court while interfering with and setting aside the impugned notice dated 15.6.2004(Annexure-7) and the order dated 14.06.2004 (Annexure-8) would permit the respondents to initiate proceeding(s) against the deity and other members of the family of the land holder in whose favour alienation(s) were made by the land holder which were accepted with condition by the order dated 29.01.1988 (Annexure-1) as no land holder has a vested legal right to hold lands in excess of the land ceiling unit provided under the Act. The application is allowed in the aforesaid terms. No order as to cost(s) HR/- (Kishore Kumar Mandal, J)