IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8306 of 2007 1. ISHWAR PRASAD RAI son of Kapildeo Rai, dead 2. Krishna Mohan Roy s/o Late Bihari Sharan Rai Both resident of Village Lilawanchh, Police Station Dinara District Rohtas (Sasaram) ……….. Petitioners Versus 1. THE STATE OF BIHAR 2. The Collector of the District Rohtas at Sasaram 3. The Additional Collector of the District Rohtas at Sasaram 4. The Circle Officer/ Anchal Adhikari, Dinara, District Rohtas at Sasaram ………… Respondents ----------- 03- 10.2.2009 Heard Mr. Chandra Shekhar Prasad Singh for the petitioners, and Mr. Om Prakash Upadhyay, learned Standing Counsel II (Ceiling). This writ petition is directed against the order dated 25.8.2006 (Annexure 5) , passed by learned Collector of the district of Rohtas, at Sasaram, in Ceiling Case No. 20 /2001 (Ishwar Prasad Rai vs. State of Bihar), whereby the petitioner’s case has been rejected on the ground of non-prosecution. There is no need to go into the details of the case in view of the nature of the case of the petitioners advanced before us, and in view of the nature of the order proposed to be passed in disposal of the writ petition. 2. The petitioners are land-holders, and land ceiling proceedings under the provisions of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter referred to as `the Act’), has been initiated. Aggrieved by certain orders of the learned authorities under the Act, the petitioners had earlier moved this Court by preferring CWJC No. 9666 of 1993 (Ishwar Prasad & Ors. v State of Bihar & Ors.), which was allowed by judgment dated 25.3.1994 (Annexure 1 series), the order impugned - 2 - therein was set aside, and the matter was remitted back to the learned Collector of the district to dispose of the matter in accordance with law and the observations made therein. The order passed by the learned Collector was again challenged by the petitioners in this Court by preferring CWJC No.6761 of 1998 (Ishwar Prasad Rai & Ors. vs. The State of Bihar & Ors.). The same was allowed by the judgment dated 24.6.99 (Annexure 1 series), whereby the writ petition was allowed, order impugned therein was set aside, and the matter was remitted back to the learned Collector of the district with the observation that he had not carried out the remand order in true spirit of the earlier judgment of this Court. This was followed by further proceedings before the learned Collector of the district. After taking steps as per the two judgments of this Court, the learned Collector of the district passed orders for publication of the draft statement in terms of Section 10(2) of the Act in the official gazette. Before its publication in the official gazette on 6.9.2006 (Annexure 4), enabling the petitioner to submit his objection in terms of Section 10(3) of the Act, the impugned order has been passed terminating the proceeding on the ground of non-prosecution on the part of the petitioners. The impugned order is reproduced hereinbelow for the facility of quick reference :- “ 25.8.06 “ vkosnd dh vksj ls dksbZ iSjoh ugha gSA iwoZ esa fn;s x;s vkns”k dk xtV izdk”ku gsrq izsl esa Hkstk x;kA ;g dkjZokbZ vkosnd dh vkosnu ds vk/kkj ij izkjaHk fd;k x;kA ijUrq vkosnd yxkrkj vuqifLFkr jgus ls Li’V gS fd okn esa budks dksbZ vfHk:fp ugha gSA vr% okn dh dkjZokbZ lekIr dh tkrh gSA ” - 3 - It is evident on a bare reading of sub-sections (2) and (3) of Section 10 of the Act that it is incumbent on the authorities under the Act to serve a copy of the draft statement published in the official gazette on the land holder whereafter he has right to submit his objection which shall be considered by the learned Collector who shall, after giving the parties opportunity of being heard and adducing evidence, pass such orders as he thinks fit. Therefore, the question of taking appropriate steps in accordance with law on the part of the petitioners could have arisen only after publication of the draft statement in the official gazette and after copy of it is served. The impugned order has been passed on 25.8.2006, before the gazette publication on 6.9.2006, which renders the mandatory provisions of sub-section (2) and 3) of Section 10 nugatory. 3. The learned Collector of the district should be mindful of the legal position, as has been held by this Court in Mahanth Brij Narain Das v. State of Bihar, ([2004 (1) PLJR 80], that the provisions of the Act are confiscatory in nature. The land-holder can be deprived of his property inspite of valid right, title and interest because of the provisions of the Act. Therefore, the prescribed procedure has to be meticulously valid. By passing the impugned order, the learned Collector of the district has flouted the mandatory provisions of law and has failed to follow the prescribed procedure. 4. I am in this connection reminded of the judgment of the Supreme Court in Ranjeet Thakur v. The Union of India (AIR 1987 - 4 - SC 2386), the following portion of paragraph 5 of which is relevant and reproduced hereinbelow :- “The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the Court- Martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute. The oft quoted words of Frankfurter, J. in Vitarelli v. Seaton, 359 US 535 are again worth recalling : “……. If dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed…….. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.” “The history of liberty” said the same learned Judge “has largely been the history of observance of procedural safeguards.” (1942) 318 US 332.” 5. The petitioners could have taken steps only after service of the draft statement published in official gazette. The learned Collector of the district by his action has deprived the petitioners of reasonable opportunity in terms of sub-sections (2) and (3) of Section 10 of the Act. The impugned order is unsustainable in law and is accordingly set aside. 6. In the result, the impugned order dated 25.8.2006 (Annexure 5) is hereby set aside. The matter goes back on remand to the learned Collector of the district of Rohtas at Sasaram, who shall proceed in accordance with law and the observations made by this Court in its two judgments indicated hereinabove. In view of the - 5 - position that the petitioners are now in possession of a copy of the gazette notification (Annexure 4), the learned Collector will no longer be required to serve a copy of the same on the petitioners. In order to expedite the proceedings, let the petitioners appear before the learned Collector of the district on 16.3.2009, along with a copy of the present order who shall thereafter proceed in accordance with law. ( S K Katriar ) mrl