IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4299 of 2011 1. MD.AJAJ AKHTAR @ MD.AIJAZ AKHTAR S/O LATE MD. SIDDIK ANSARI @ SIDDIQUE ANSARI. 2. MD. SHAKIL AKHTAR S/O LATE MD. SIDDIK ANSARI @ SIDDIQUE ANSARI. 3. MD. IMRAN AKHTAR S/O LATE MD. SIDDIK ANSARI @ SIDDIQUE ANSARI. 4. MD. JAMIL AKHTAR S/O LATE MD. IDRISH ANSARI. 5. MD. SOHAIL AKHTAR S/O LATE MD. IDRISH ANSARI. 6. MD. PARBEJ AKHTAR S/O LATE MD. IDRISH ANSARI. All Residents of Village Kharaiya, Police Station-Amour, District-Purnia. …………Petitioners Versus 1. THE STATE OF BIHAR. 2. THE COLLECTOR, PURNIA. 3. THE SUB DIVISIONAL OFFICER AT BAISI WITHIN THE DISTRICT OF PURNIA. 4. THE DEPUTY COLLECTOR LAND REFORMS AT BAISI WITHIN THE DISTRICT OF PURNIA. 5. THE ANCHAL ADHIKARI AT AMOUR WITHIN THE DISTRICT OF PURNIA. ……………Respondents ----------- 02 08.03.2011 Heard both sides. Petitioners are landholders within the meaning of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (for short the ‘Act’). They raise a grievance with respect to order dated 19.05.2009 passed by the respondent- Collector, Purnia in Ceiling Appeal No. 25 of 2007, whereby the appeal was dismissed for non prosecution. They also question the sustainability of order dated 15.06.2009 (Annexure-4) passed by the said respondent, whereby the restoration application filed for restoration of Appeal no. 25 of 2007 was rejected by endorsement on the petition dated 15.06.2009. Background facts leading to the present application are/is as under:- L.C. Case No. 1529 of 1973-74 was initiated against 2 the grand father of the petitioners, namely, Haji Yakub Ansari. On 05.07.1976 the objections filed by the landholders were considered and disposed of. Thereafter no action in terms of the provisions of the Act appears to have been taken, as a result whereof the case stood abated in terms of Bihar Act 55 of 1982. Again the said ceiling case was taken up, wherein objections were filed and orders were passed thereon. The landholders preferred appeal being L.C. Appeal No. 196 of 1989-90. It is the case of the petitioners that by proceeding dated 17.07.1990 the said appeal was disposed of and the case was remanded back to the original authority. Thereafter, notification under Section 11 (1) of the Act was made on 19.08.1992, whereby one unit was allowed to be retained by the original landholder. This was followed by notification issued under Section 15 (1) of the Act. Aggrieved by these actions and orders/notification(s), writ petitioners the descendants of Haji Yakub Ansari preferred writ petition being C.W.J.C. No. 11710 of 1992 (Mr. Siddique Ansari and Ors. Vrs. The State of Bihar and Ors.). The said writ petition was disposed of by a proceeding dated 28.01.1994 (Annexure 1/A), whereby petitioners were granted liberty to file appeal against the final notification made under Section 11 (1) of the Act. It appears, thereafter two appeals were filed by the landholders/owners being Appeal Nos. 16 of 1994 and 61 of 1994. It is the case of the petitioners that by order dated 01.09.1995, those appeals were disposed of and the matter was again 3 remanded back to the original court. Thereafter, some order was passed adjudicating on the claim(s) of the petitioners, whereby the landholder was allowed to retain only one unit. It appears, the landholder found that the lands which were allowed to be retained by them were not in accordance with the option furnished by the landholder in terms of Section 9 (2) of the Act. This prompted them to file appeal being C.A. No. 25 of 2007 before the respondent- Collector, Purnia. The said appeal stood rejected by order dated 19.05.2009 (Annexure-3), whereafter a restoration application was filed (Annexure-4) which was also rejected by an order passed on the margin of the application leading to the present writ petition. Learned counsel for the petitioners referring to averments made in paragraph Nos. 18 and 19 of the present writ proceeding as well as few paragraphs of the restoration application (Annexure-4), submits that in the attending facts of the case, the respondent-Collector ought to have allowed the restoration application and permitted the petitioners to argue his appeal on merit. It is submitted that the appeal preferred by the petitioners only involves the issue of option as provided under Section 9 (2) of the Act, which can be exercised at any stage of the ceiling proceeding. Mr. Arjun Prasad Ambasths, learned counsel has assured the court that if the appeal is directed to be heard on merit then the petitioners shall not take any adjournment and use the said opportunity to argue the appeal on merit. It is submitted that in the ends of justice the aforesaid prayer of the petitioners should be allowed by this court. 4 Learned counsel for the State, in view of the said submission, does not object to the stand taken by the petitioners. I have considered the submissions made on behalf of the parties and perused the materials on record. In paragraph Nos. 16 and 17 of the writ petition, the petitioners have asserted as under:- “16. That the Sub Divisional Officer, Baisi by order dated 11.2.2006 disposed of the objections of the petitioners. The petitioners also exercised their option with regard to the lands which they wanted to retain within one unit allowed to the family. A list of lands which are fit to be kept in the column of surplus was also filed. Most of the lands which were allotted within the said one unit are beyond the lands opted for. Land belonging to and recorded in the names of others have been included within the allotted lands. The result is that even the residential homestead lands of the petitioners were included in the column of surplus for distribution. 17. That in the aforementioned circumstances the petitioners were compelled to file Ceiling Appeal No. 25 of 2007 before the Collector, Purnia. A fresh list of lands exercising option for retention within unit was also attached alongwith the memo of appeal.” It, therefore, appears that only the issue of option is 5 now left to be decided in the appeal preferred by the petitioners. It further appears that some of the lands on which residential premises are constructed have not been allowed to be retained by the petitioners. In view of the aforesaid fact apparent from record and the submissions made on behalf of the parties this court is inclined to grant one more opportunity to the petitioners to make submissions on merit of the appeal before the appellate authority. This is deemed equitable and subservient to cause of justice. For the reasons discussed above, the application is allowed. Appeal being Ceiling Appeal No. 25 of 2007 is restored on the file of the respondent-Collector, Purnia. Petitioners are directed to appear before the said court in the said proceeding within four weeks from today alongwith a copy of the present order whereafter the respondent-Collector shall fix a date on which date the petitioners shall appear and argue the appeal. If the Collector finds that unnecessary adjournments are being sought again on behalf of the appellants (writ petitioners), he would be free to pass appropriate order(s) in accordance with law. No costs. Safik ( Kishore K. Mandal, J. )