IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5553 of 2003 1. MOSTT.SOFIA BEGUM @ SOFIA KHATOON, and 2. Mostt. Asmatun Nissa, both wives of Late Md. Ishaq Alam, and 3. Ishtiyaque Alam, S/o Late Md. Ishaq Alam, All are residents of Jahangirpur, Baisi, P.S. Gopalpur, Distt. Bhagalpur ……………………. Petitioners Versus 1. THE STATE OF BIHAR, 2. The Hon’ble Minister, Revenue and Land Reforms, Bihar, Patna, 3. Addl. Member, Board of Revenue, Bihar, Patna 4. The Commissioner, Bhagalpur Division, Bhagalpur, 5. The Collector, Bhagalpur and 6. The Addl. Collector (Ceiling), Bhagalpur …………….. Respondents ----------- For the Petitioners:- Mr. Sita Ram Yadav, Advocate. For the State:- Ms. Kumari Amrita, S.C. © I. ------------ 4. 06.08.2009. Heard learned counsel for the petitioners and learned counsel appearing for the State. The writ petitioners, who are heirs of the deceased land holder, Md. Ishaq Alam, are aggrieved by the order dated 12.9.2000 passed by the Respondent No. 2. Learned counsel for the petitioners submitted that a land ceiling proceeding was initiated against late Md. Ishaq Alam. It is stated that the lands under the proceedings belonged to late Md. Musa, who had four sons and daughters including Md. Ishaq Alam, against whom a land ceiling proceeding had been initiated. It is further stated that during his life time, Md. Musa made 2 oral gifts in favour of his sons and daughters and put them in exclusive possession of the gifted lands. The ceiling proceeding was, thereafter, initiated only against Md. Ishaq Alam showing him to be the land holder of the entire land. It is the case of the petitioner that for the time being, aforesaid Md. Ishaq Alam became mentally ill and, thus, could not file any objection. However, he was granted one unit but he could not exercise his option. After notification under Section 15(1) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be referred as `the Act’) declaring the lands belonging to him, as per the gift by his father, were declared surplus whereas the lands belonging to the others were shown into the land allowed to be held by him. Thereafter, he along with other brothers and sisters agitated the matter before the Collector and the Members, Board of Revenue. The Collector dismissed the case on account of the fact that after final notification under Section 15(1) of the Act, he does not have any power of rehearing whereas the Board of Revenue rejected the revision on the ground of limitation. The aforesaid late 3 Md. Ishaq Alam along with others preferred writ petition before this Court and by order, contained in Annexure- 12, passed in the aforesaid writ petition, this Court remanded the matter back with a direction to hear the revision once again. Eventually, the matter was heard by the Member, Board of Revenue and he disposed of the same by resolution dated 17.1.1996 whereby he had held that after final publication under Section 15(1) of the Act, the remedy available to the revisionist was to file an appropriate application under Section 45-B of the Act for reopening the case. Subsequently, such an application was filed and the same was disposed of by the respondent no. 2 by the order, as contained in Annexure-1 to this application, which is under challenge. It is contended on behalf of the petitioners that the respondent no. 2 has not recorded any finding upon his application and simply held that the petitioners’ claim is baseless and, thus, has rejected the prayer, which is fit to be set aside on that score itself. Learned counsel for the State submitted that the petitioners did not file any appeal against the original order and final publication of draft under Section 11(1) 4 of the Act, hence, Respondent No. 2 has correctly held that since no objection was filed, there is no ground for reopening the matter. Learned counsel further submitted in reply that the petitioner no. 1 had been taking the ground all along before all the authorities as well as before this Court, that due to mental illness, such objection could not be raised at time concerned and after considering everything, this Court had remitted back the matter to the revisional authority. The revisional authority did not decide the case on merit rather it had stated that the proper course available to the petitioner would be to file a petition for reopening of the case under Section 45B of the Act. It is further submitted that even the Respondent No. 2 did not consider the matter on merit and had passed unreasoned order. In view of the aforesaid, I am constrained to hold that since the matter was twice remitted back to the authorities concerned and since the revisional authority had also not decided the matter on merit because the proper course, according to it, was to file a petition for reopening of the case under Section 45B of the act, the 5 Respondent no. 2 should have considered all the objections raised on behalf of the petitioners and should have recorded reasons for not accepting those. The second contention raised on behalf of the learned counsel for the State was that the petitioners had been given one unit and he could have opted for the lands to be retained by him. However, it was submitted on behalf of the petitioners that since the petitioners could not file an objection, for the aforesaid reasons, they could not even exercise their right of option under Section 9(2) of the Act as well. As a result of which, the petitioners had been compelled to retain the lands which are in possession of the brothers and sisters of Md. Ishaq Alam. In view of the above, I set aside the order as contained in Annexure-2 and remand the matter back to the respondent no. 2 to be decided afresh. Since this order is being passed in the presence of the learned counsel for the petitioners, it is expected that the petitioners will appear before the respondent no. 2 within two months from today along with a copy of this order and the documents in support of 6 their claim. Thereafter, the respondent no. 2 is expected to pass order in accordance with law within three months thereafter. Accordingly, this writ application stands allowed. dk ( Dr. Ravi Ranjan, J. )