IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15086 of 2010 1. BOUKU RISHI S/O BHUJANGI RISHI R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 2. SUBELAL RISHI S/O LATE GAYA RISHI R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 3. HARICHARAN RISHI S/O NOKHELAL RISHI R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 4. MOST. JIRA DEVI W/O LATE BORHAN RISHI R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 5. MAHENDRA RISHI S/O LATE LAHRAN RISHI R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 6. LAKHAN RISHI S/O BHARAT RISHI R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 7. MAHENDRA PASWAN S/O LATE FAGU PASWAN R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 8. SITARAM PASWAN S/O NOKHELAL PASWAN R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 9. FAHIM PASWAN S/O BADAR PASWAN R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 10. FULCHAND PASWAN S/O JIWACHHA PASWAN R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 11. YUGO PASWAN S/O KISHUN PASWAN R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 12. DILIP PASWAN S/O LATE UMESH PASWAN R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 13. NARAYAN PASWAN S/O TRIPU PASWAN R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 14. SUDHIR PASWAN S/O LATE SUKHDEO PASWAN R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 15. BHUMI RISHI S/O LATE GAURI RISHI R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 16. MOSTT. BHAMA W/O LATE TANOKI PASWAN R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 17. BHIKHAN PASWAN S/O LATE KISHUN PASWAN R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 18. JIBACHH PASWAN S/O LATE KISHUN PASWAN R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 19. MANGAL PASWAN S/O LATE MAHARAJ PASWAN R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 20. SURO RISHI S/O LATE SAGUNI RISHI R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 21. MAHESH RISHI S/O LATE SUNDAR RISHI R/O VILL.- HASELI, P.S.- FALKA, DISTT.- KATIHAR 22. MANGAN RISHI S/O LATE MAKHAN RISHI @ BHARTHA R/O VILL.- BARETA, P.S.- FALKA, DISTT.- KATIHAR 23. PATHALI RISHI S/O LATE GARBHU RISHI R/O VILL.- BARETA, P.S.- FALKA, DISTT.- KATIHAR Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR, KATIHAR 2 3. ADDL. COLLECTOR, LAND CEILING, KATIHAR 4. DEPUTY COLLECTOR, LAND REFORMS, KATIHAR 5. SUB-DIVISIONAL OFFICER, KATIHAR 6. CIRCLE OFFICER, FALKA, DISTT. - KATIHAR 7. SANAY KUMAR CHOUDHARY S/O SRI NITYANAND CHOUDHARY R/O VILL.- BARETA, P.S.- FALKA, DISTT.- KATIHAR ---------- 4 06.12.2010 Heard learned counsel for the petitioner and the parties. Petitioners herein claim to be the purcha holders in respect of the lands in question on the strength of Annexure-4 series, they are aggrieved by the notice dated 12.08.2009, (Annexure-1) issued by respondent Anchal Adhikari directing them to deposits the documents of settlement (red cards) issued in their favour in respect of the lands claimed by the land holder now represented by his son (respondent no. 7). They have also questioned, the sustainability of order dated 03.03.1997, passed by respondent Collector in Misc. Case no. 383 of 96/97 (Saday Kumar Chaudhary Vs. State of Bihar and others.), whereby the application preferred by respondent no. 7 seeking reopening of the proceeding and for grant of one additional unit to him was considered and allowed as said respondent was found major on 09.09.1970. A land ceiling case was initiated against the father of the petitioner. Adjudication vide land ceiling case no. 42 of 1976- 77, was made, whereby approximately 30 acres of land were declared surplus in the hands of the land holder. It appears a claim was raised for grant of one more unit in favour of his son 3 (respondent no. 7), but the same was not allowed. The matter remained pending and no notification in terms of Section 11(1) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of surplus Land) Act 1961, (for short “the Act”) was made. The matter therefore remained pending and no notification under Section 15(1) of the Act was published. In the meanwhile by reason of provision contained under Section 32(B) of the Act, the proceeding stood abated and was initiated and concluded. No action appears to have been taken and subsequently the notification under Section 15(1) of the Act was made on 01.01.1986, whereby certain lands belonging to the land holder was declared surplus. The petitioners herein were found eligible persons and accordingly part(s) of the land so declared surplus in the proceeding was/were settled with them in terms of Section 27 of the Act. Respondent No. 7 approached this Court against the aforesaid actions by filing writ petition being CWJC No. 6836 of 1994 ( Saday Kr. Chaudhary Vs. State of Bihar). By a proceeding dated 30.03.1995, the said case was permitted to be withdrawn giving him opportunity to approach the authority under the Act for redressal of his grievance(s). Respondent no. 7 thereafter filed an application under Section 45B of the Act, which gave rise to Misc. case no. 508 of 1995-96. Respondent Collector by order dated 11.12.1995, disposed of the same holding that by virtue of amendment brought about in Section 45-B of the Act refer (Ordinance no. 20 of 1995), the petitioner should approach the 4 appropriate authority. It appears the respondent no. 7 again approached the respondent Collector seeking reopening of the proceeding and consideration of the case on merit which gave rise to misc. Case no. 383 of 96-97. Such renewal of prayer before the respondent Collector was made in view of the fact that the application preferred by respondent no. 7 under Section 45B of the Act was pending consideration when Act 8 of 1997 came into force. The submission was that the Ordinance earlier promulgated was prospective in nature/effect and Superior Courts have held that if there is/was any application pending before the Collector under Section 45B of the Act, the same were required to be considered and disposed of in accordance with law by the said authority. Such proposition of law found enunciated by judgment of this Court rendered in the case of Bhagwan Singh and others Vs. State of Bihar (1996(2) PLJR 61). Respondent Collector having found that the matter was pending before it from before entertained the said application and ordered for reopening of the proceeding and thereafter perused the entire material on record and came to the conclusion that in view of the amendment of Section 32(B) of the Act. The whole proceeding was to be initiated afresh wherein the objection of the respondent no. 7 was to be considered which was not done in the proceeding and as such after having appreciated the material brought on record by the respondent no. 7, allowed one unit to him by the impugned order. It is admitted position that subsequent thereto a notification 5 dated 30.11.1999 was published in the district gazette (District Gazette No. 7) whereby 30 and odd acres of land which was earlier acquired by reason of notification under Section 15(1) of the Act ( published on 1.1.1986) was released from the ceiling proceeding. A copy of the notification has been produced by learned counsel for the respondent which is kept on record. In the light of said order (Annexure-2) notice contained in Memo No. 292 Ka dated 12.08.2009 (Annexure-1) has been issued by the respondent Circle Officer directing the writ petitioners to deposit the settlement documents ( red cards) issued in their favour respecting the land claimed by the land holder (respondent no. 7). Learned counsel for the petitioner relying on judgment of Supreme Court in the case of Dadan Ram and others Vs. State of Bihar since reported in PLJR 2008(1) SC 215, submits that before proceeding in terms of Section 45B of the Act respondent Collector ought to have granted opportunity of hearing to purcha holders as the Collector was exercising a quasi judicial authority. In such matter the right to get an opportunity of hearing cannot be denied and is mandatory. Para 12 of the report is extracted hereinbelow:- In view of the same, we are unable to agree with the observation of the Division Bench since the appellants had the knowledge of the order of status quo passed by the District Collector on 24.08.2005, the rules of natural justice were substantially complied with. We have already held that prior to re- opening, notice to all the parties including person(s) in possession was mandatory. It 6 is not in dispute that the case was re- opened and earlier decision was reversed holding that there was no excess land without issuing notice to the appellants. Section 45-B empowers the State Government to re-open the case which was 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 hearing. Further, the said power to re-open has to be exercised sparingly and for adequate reasons and the proceeding concluded earlier cannot be re-opened merely for verification whether the orders were correctly passed. The order of re-opening should be passed after hearing the parties concerned and where an order of re- opening the case had been passed without hearing the party against whom it was passed, the order suffers with legal infirmity and liable to be quashed. The reason behind in issuing a show cause 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 re- opened suo motu by the authorities concerned in a capricious manner and reasonableness requires that parties to be affected by the same should be heard. Learned counsel for the respondent as well as the State are not in a position to satisfy the Court that before passing the order dated 03.03/1997 (Annexure-2) the petitioners herein (purcha holders) were given an opportunity of hearing. On this limited issue the matter therefore, requires to be remitted back to the respondent Collector for affording the parties, opportunity of hearing and thereafter to decide the case afresh in accordance with law as admittedly the petitioners herein were not afforded 7 any opportunity of hearing before reopening the proceeding although they had acquired some interest over the land in question by reason of actions of the State. Agreeing with the view expressed by Hon’ble Supreme Court in the matters of Dadan Ram and others vs. State of Bihar (supra), this court is of the view that the matter be remitted back to the Collector for passing a fresh order in accordance with law after affording opportunity of hearing to the writ petitioners. At this stage learned counsel for the petitioners assure the Court that they shall be appearing before the Collector within five weeks along with the copy of the present order. The application is accordingly allowed in the following terms:- The impugned notice (Annexure-1) is quashed and set aside. Impugned order dated 03.03.1997 (Annexure-2) is also qhashed and set aside. The petitioners will appear before the respondent Collector and file their appearances/Vakalatnama in misc. case no. 383 of 1996-97. The private respondent herein shall also appear before the said Court within five weeks from today. Where after the Collector shall afford opportunity of hearing to both the parties and decide the matter afresh in accordance with law. This Court however, is not interfering with the notification dated 30.11.1999 published under Section 15(1) of the Act, which shall remain in abeyance and shall abide by the final adjudication to be made by the respondent Collector after 8 hearing the parties. The matter appears to be old one and as such this Court expects that the respondent Collector shall dispose of the same preferably within a period of five months from the date of receipt/production of copy of the present order before him by the parties. Amrendra ( Kishore K. Mandal, J. )