IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.804 of 2010 KRISHNA KANT RAI & ANR Versus THE STATE OF BIHAR & ORS For the Petitioners:- Mr. Sidheshwari Pd. Singh, Sr. Advocate, Mr. Krishna Kishore Sinha, Advocate & Mr. Arun Pd. Ambastha, Advocate For the State:- Mr. Ajay (SC) (C) -3 ----------- 02 04.05.2010 Heard learned counsel for the appellants and learned counsel for the State. The present appeal arises out of the final order dated 29.11.2002 passed re-opening proceedings under Section 45-B of the Bihar Land Reforms (Fixation of Ceiling Areas and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Land Acquisition Act) in Land Ceiling Case No. 2 of 1973-74 and 3 of 1973-74. The Land Ceiling Proceedings are stated to have been concluded in 1986. The order of the State Government, reopening the proceedings dated 29.11.2002 notices that certain units had been allowed to persons, who were minors on 9.9.1970 and the gift deed executed on 5.5.1962, on basis of which independent units were further allowed had been executed after 22.10.1959, and in favour of a 2 minor. The judgment under appeal holds that the power of Superintendence under Section 45-B of the Land Ceiling Act was based on a prima facie satisfaction for reopening and could not be faulted with only because in the ultimate analysis the reasons may be found to be incorrect. The appellants would be given full liberty to contest. It rejects the contention that notice for re- opening had also to be issued to those in favour of whom the units had been allowed earlier holding that in any event they were family members of the original landlord and were therefore duly represented by the latter. Strong reliance has been placed on behalf of appellants on a judgment of the Supreme Court in 2007 (XIII) SCC 583 (DADAN RAM AND OTHERS VERSUS STATE OF BIHAR AND OTHERS) to urge that even at the stage of reopening of the proceedings under Section 45-B of the Land Ceiling Act, separate notices were required to be given not only to the original land holder, but even to those who had been allowed certain units as a vested right had accrued to them which was sought to be reopened and their possession sought to be 3 reconsidered. Learned counsel for the State placed reliance on the same judgment to urge that in the case of DADAN RAM (supra) the reopened proceedings were finally decided without hearing the purcha holders to whom the land had been distributed after being declared surplus, when it was subsequently held after re-opening that the land holder had no surplus lands affecting the purcha holders. In the present case the proceedings have only been reopened and those who had been allowed units earlier sought to be re-examined under Section 45-B shall now be noticed and heard. The order for re-opening the proceedings dated 29.11.2002 is conclusive on the aspect of minority of those to whom the units were allowed in their right. It is not an order of satisfaction of the need to re-examine the units allowed. We are satisfied that at the stage of determination, whether the proceedings need to be reopened or not under Section 45-B, those in favour of whom certain units had been allowed also had a right to be heard to convince the authorities that there was no need to re-open the proceedings jeopardizing their lands. This is considered vital, as 4 ultimately, it was their rights given to them under an earlier concluded proceeding which was sought to be reopened. The mere reopening of the proceeding vis-à-vis the original land holder without calling into question the units allowed does not arise. If the units allowed are the subject of reconsideration in the re-opened proceedings those in whose favour the units were earlier allowed are directly affected. In the case of(DADAN RAM AND OTHERS VERSUS STATE OF BIHAR AND OTHERS (supra) it has been held at paragraph-21 as follows: “21. Section 45-B empowers the State Government to reopen the case which had already been disposed of by the Collector under the Act. After reopening the case, the State Government is to dispose of the matter afresh in accordance with law. It is, therefore, clear that before passing any order in a concluded issue, the authority is expected to satisfy the minimum requirement of principles of natural justice by issuance of notice and hearing. Further, the said power to reopen has to be exercised sparingly and for adequate reasons and the proceeding concluded earlier cannot be reopened merely for verification whether the orders were correctly passed. The order of reopening should be passed after hearing the parties concerned and where an order of reopening the case had been passed without hearing the party against whom it was passed, the order suffers with legal infirmity and is liable to be quashed. The reason behind issuing a show-cause 5 notice is precisely very clear in view of the fact that a proceeding once concluded after a regular hearing should not be ordered to be reopened suo motu by the authorities concerned in a capricious manner and reasonableness requires that parties to be affected by the same should be heard.” In the present case no notice was issued to those whom units had been allowed earlier. They had a right to be heard to persuade the authorities that they were rightly allowed units in their own right and that there was no need to re-open the proceedings. The question is of a fair, reasonable procedure and not a decision taken behind the back. At this stage, what may or may not have been the decision after hearing them is not relevant and shall remain speculative in its nature. The issue is of propriety of procedures of decision making. We accordingly allow the appeal and set aside the judgment under appeal. The order dated 29.11.2002 stands set aside. The State Government shall however be at liberty to issue fresh notice under Section 45-B of the Land Ceiling Act in accordance with the present discussion and after hearing all the concerned parties proceed to re-determine the re-opening 6 afresh. The appeal stands allowed to that extent only. P.K. (Navin Sinha, J.) (Dinesh Kumar Singh, J.)