IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.13062 OF 2002 1. MD.AZAD ALI, SON OF HAJI MD. MUSLIM 2. SHEIKH NAUSHAD ALI, SON OF MD. SULTAN 3. SHEIKH JEHANGIR, SON OF MD. SULTAN 4. MD. ALAMGIR, SON OF MD. SULTAN ALL RESIDENT OF VILLAGE UCHITPUR, POST OFFICE RAUTARA, POLICE STATION AND DISTRICT PURNEA ………………………………………………………………………….PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. THE COLLECTOR, PURNEA 3. THE ADDITIONAL COLLECTOR (CEILING), PURNEA 4. THE SUB DIVISIONAL OFFICER, SADAR, PURNEA …………………………………………………………………………RESPONDENTS ********* 7 02/08/2010 Heard Counsel for the petitioners and the Counsel appearing on behalf of the State. The petitioners had filed an application for reopening of a ceiling case with respect to 4.11 acres of land stating that an option has been filed on their behalf although the petitioners claim that it was not authorized by them or signed by them. In any event, the matter was reopened on 14.06.1993 and sent to the Sub Divisional Officer, Sadar, Purnea for reconsideration. During the proceeding before the Sub Divisional Officer, Sadar, Purnea, the petitioners claimed that lands relating to Khata No. 39, Khesra Nos. 437, 438, 439, 440, 1091 and 455 measuring 0.67 acres, 0.38 acres, 0.4 acres, 0.35 acres, 0.67 acres and 1.64 acres respectively should be exempted from the ceiling proceedings. It was also argued 2 on behalf of the petitioners that they had donated 2.64 acres of lands and as such those lands should also be exempted from the ceiling proceedings. There was a categorical statement made on behalf of the petitioners that in exchange of 2.64 acres of land, they were ready to surrender 9.95 acres of land. The Sub Divisional Officer found that the proposal of the petitioners was to the benefit of the State inasmuch as the petitioners were ready to surrender a larger chunk of land, for a smaller piece of land. It is said that some of the lands out of 2.64 acres is being used as a graveyard. The order passed by the Sub Divisional Officer is dated 25.09.1997. The petitioners filed this writ applications claiming that a notification should be issued denotifying 6.75 acres of land which include 4.11 acres exempted by way of option offered by the petitioners and 2.64 acres, as it has been donated by the petitioners. The Collector, Purnea woke up in this case when the writ application was filed and passed an order stating that the reopening was restricted to 4.11 acres of land. The order rejecting the application for denotification of 2.64 acres of land was passed sometime in the year 2003 to 2005 which has been produced by the State Counsel, but it appears that no formal order has been issued by the Collector. 3 The fact that the Collector has rejected the proposal of the Sub Divisional Officer has not been annexed to the counter affidavit. The order of the High Court passed in CWJC No. 12662 of 1992 dated 11.02.1993 was disposed of with a direction to the Collector to consider the application filed on behalf of the petitioners with respect to the options regarding the land which the petitioners wanted to retain under Section 9. The petitioners accordingly filed an application which was allowed on 14.06.1993. The question before this Court is whether the Sub Divisional Officer could have considered exemptions of land apart from those which were mentioned in the order dated 14.06.1993. The answer is obviously in the negative. However, while doing so, the Sub Divisional Officer has given good reasons. It has been stated in the order contained in Annexure-6 that the petitioners had offered the larger chunk of land measuring 9.95 acres. It has further been stated that 2.64 acres of land has been donated by the petitioners. Counsel for the petitioners submits that part of 2.64 acres of land is being used as a graveyard. The question is, therefore, whether it would be proper for the Collector who has not considered the reasons given by the Sub Divisional Officer for allowing the application of 4 the petitioners to declare the graveyard as surplus lands of the petitioners. No reasons whatsoever has been given by the Collector except to say that the Sub Divisional Officer has gone beyond the scope of the order of reopening. Even if it is to be held that the Sub Divisional Officer has gone beyond the scope of the order of reopening, it would, in any event become incumbent for the Collector to consider whether the said 2.64 acres is graveyard or not. Needless to say, if the Collector finds that it is graveyard or it is utilized by the general public at large, for any common purpose such as graveyard or is not in the exclusive possession of the petitioners, as claimed by them, it could certainly cannot be acquired, is well known to the Collector, as such places are protected and it would be of no use for the State to acquire graveyard. This aspect of the matter ought to have been considered by the Collector. I, therefore, direct as far as 4.11 acres of lands as described above, should be denotified immediately. With respect to 2.64 acres of land which appertains to Khata No. 39, plot nos. 501, 440/1088, 466, 436/1087, 436/1086 & 1069/1095 measuring 0.49 acres, 0.37 acres, 0.74 acres, 0.43 acres, 0.31 acres and 0.3 acres respectively, the Collector, Purnea should make an enquiry within a period of three months from the date of 5 receipt/production of a copy of this order and if it is found that it is a graveyard or is being used as a Idgah or any other religious purpose, as mentioned above, he will place proposal for the exemption of this 2.64 acres of land before the Principal Secretary (State) of the Department. The Principal Secretary, Land Reforms should consider the report of the Collector, Purnea and pass appropriate order within a period of three months from the date of the receipt of the report. In the interim period, while the enquiry is being made by the Collector, Purnea status quo, with respect to 2.64 acres of the lands in question, should be maintained. This application is thus disposed of with the aforesaid observations and directions. Anand ( Sheema Ali Khan, J. )