CIVIL WRIT JURISDICTION CASE No.15000 of 2004 In the matter of an application under Article 226 of the Constitution of India. **** DURGA PRASAD BHAGAT, son of late Harakh Chand Bhagat, resident of village Bhotia, PS Dhamdaha, District Purnia …Petitioner Versus 1. THE STATE OF BIHAR 2. The Collector, Purnia 3. The Deputy Collector Land Reforms Sadar, Purnia 4. The Block Development Officer, Dhamdaha, PS Dhamdaha, District Purnia…. …. Respondents ***** For the Petitioner : Mr.Jagdish Prasad Bhagat, Advocate For the Respondents : Ms. Kumari Amrita Standing Counsel (Ceiling) P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S K Katriar & K K Mandal, J.J. This writ petition is preferred for issuance of a writ of certiorari for quashing the order dated 9.1.2004, passed by the respondent Collector in Misc. Ceiling no. 192 of 1992, whereby the district Collector invoking the powers conferred upon him under Section 45B of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961 (hereinafter referred to as `the Act’), has re-opened the land ceiling proceeding and transmitted the record to the court below him for re- examination /re-adjudication of the validity of the grant of two units to the land-holder (the petitioner). A bare perusal of impugned order would show that the respondent Collector has taken a view that the two reports submitted in the proceeding by the revenue authority so far as the age of the son of the land-holder (writ petitioner), Pradip Kumar Bhagat, was seemingly at variance. It is to be noted here that the land-holder was allowed two ceiling units as his son Pradip Kumar Bhagat was held to be major on 9.9.70. 2. Facts relevant for disposal of the present writ petition may be indicated. Land ceiling proceeding was initiated against the petitioner vide 2 Land Ceiling Case no.1720 of 1973-74 in respect of close to 76 acres of land reportedly held by him. A notice to file return under Section 8 of the Act was accordingly served on the petitioner to which the petitioner filed objection. It appears that the claim for grant of two units besides exclusion of certain lands gifted to his daughter within the permissible statutory period (sometime in the year 1963) was allowed. Verification report submitted in the case did indicate that the son of the petitioner was 21 years of age on 9.9.70. It appears that subsequently a second report was also called for. The same was submitted. The two verification reports are on record as Annexures 1/2 and 1/3. In the second report also which was submitted in the year 1989 the son of the petitioner was shown aged about 38 years. On a consideration of the materials on record, the ceiling case was finally disposed of by the Collector under the Act by order dated 30.7.99. There is no dispute that subsequent thereto notification under Section 11(1) of the Act was also published on 16.8.90. The land-holder was allowed two ceiling units and no surplus land was found with the land-holder. The State did not prefer any appeal. About two years thereafter, a notice was issued on the petitioner calling him upon to show-cause as to why the land ceiling proceeding earlier concluded be not re-opened. The petitioner challenged the same before this Court in CWJC No.6400 of 1992. This Court by order dated 16.2.93 (Annexure 3/1) disposed of the same. The operative portion of the order reads thus:- “This matter is, therefore, remanded back to the Collector in order to enable him to apply his kind and pass a fresh order in accordance with law after giving an opportunity of hearing to them. “The petitioners may appear before the Collector within three weeks and file his show cause whereafter the Collector may dispose of the same in accordance with law.” The matter was thereafter heard by the respondent Collector and by the impugned order the proceeding has been re-opened to readjudicate the correctness of grant of two ceiling units to the land-holder. 3. While assailing the impugned order, learned counsel for the petitioner contended that the reasons assigned by the respondent Collector 3 for re-opening of the proceeding is/are not sustainable in law. Respondent Collector has taken a view that there was/were seemingly difference in the two verification reports already on record with respect to the age of the son of the petitioner, which necessitates reopening of the case. It is thus contended that the concluded ceiling case has been re-opened only to take a possible different view based on the materials already on record of the case (in the present case, two verification reports). 4. Learned counsel appearing on behalf of the State, however, supported the impugned action. 5. It appears to us that re-opening of a proceeding concluded earlier, after a long time is not an appropriate exercise of powers. To have a second view on the materials already on record and appraised by the court cannot be said to be a ground for re-opening of the proceeding. Learned counsel for petitioner has rightly relied on the judgment of a Full Bench of this court in Praveen Shankar v State of Bihar [1987 BBCJ (FB) 231], in order to highlight the limited scope of the powers conferred on the authority under Section 45B of the Act. This is what the Full Bench has to say in paragraph -17 of the said judgment :- “17. Now the question as to whether the authority can decide to reopen the proceeding on a re-consideration of the materials which had earlier been considered. In my view, it is not permissible to do so and this interpretation of the section would be consistent with the age old principles mentioned above and would be reasonable, just and consistent with fair play. It will save not only the land- holder but also the State from a perpetual threat of uncertainty and consequent harassment; for, it is a power which the land-holder may also invite to be exercised in his favour and not only once but repeatedly. If the section is construed in its widest amplitude implying unbridled and unlimited power, the Collector when asked by an aggrieved land-holder to exercise the same, cannot, without applying his mind, refused to entertain the prayer as that would amount to abdication of power. I, therefore, hold that if the materials on the records of a case are taken into consideration by the authorities concerned and a conclusion is reached which becomes final (on appeal and revision or in absence thereof), its finality has to be respected and the proceeding cannot be reopened for giving a second thought. If, however, any material or matter has been omitted from consideration which may be so substantial as to lead to a different conclusion, the power under the section may be exercised. As the observations of Mr. Justice B P Jha in paragraph 7 of the judgment in Yamuna Rai v State of Bihar (supra) are consistent with this view, I hold that the case was correctly decided.” 4 One of us (S K Katriar,J.) had the occasion to consider this aspect of the matter in the case of Mahanth Brij Narain Das v State of Bihar [2004(1) BBCJ 432]. Having referred to several judgments of the court it was held that while re-opening the case the revenue authority cannot revive an order and take a different view of the matter on the same material. Powers conferred under Section 45B of the Act is extra-ordinary power which has to be exercised sparingly and for certain valid and compelling reasons. It is not the State’s case that the materials already on record was/were so substantial in nature so as to necessarily lead to a different conclusion. We are, therefore, convinced that the impugned order dated 9.1.2004, passed by the respondent Collector re-opening the proceeding is wholly bad in law. 6. In the result, this writ petition is allowed. The order dated 9.1.2004 passed in Misc. Ceiling No.192 of 1992, passed by the respondent Collector is quashed. There shall be no order as to costs. ( S K Katriar ) ( Kishore K Mandal ) Patna High Court, Patna The 5th of March 2010 NAFR/mrl