IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16450 of 2004 1. JIGYASA DEVI ( WIDOW OF LATE ASHOK KUMAR CHOUDHRY 2. NIKHIL KUMAR CHOUDHRY S/O LATE SATYADEO NARAIN CHOUDHRY R/O VILL BINODPUR, P.S. KORHA ( RAUTARA) AND DIST. KATIHAR ---- PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE MEMBER, BOARD OF REVENUE, BIHAR, PATNA 3. THE COLLECTOR, KATIHAR 4. THE ADDITIONAL COLLECTOR, CEILING, KATIHAR 5. THE SUB-DIVISIONAL OFFICER AT KATIHAR 6. THE DEPUTY COLLECTOR LAND REFORMS AT KATIHAR 7. THE ANCHAL ADHIKARI AT KORHA WITHIN THE DIST. OF KATIHAR. ---- RESPONDENTS. For the Petitioners : Mr. Sidheshwar Prasad Singh, Sr. Advocate. For the State : Mr. Pawan Kumar Mishra & Mr. Shashank Shekhar Jha, G.P. 22. ----------- 15 15.02.2011 The writ petitioners pray for quashing of order dated 05.08.2004 (Annexure-3), passed by respondent Additional Collector Ceiling Katihar, in L.C. case no. 135 of 1973-74, order dated 17.09.2004, passed on appeal by respondent no.3 in Ceiling Appeal no. 926 of 2004 (Annexure-5) and the resolution dated 25.09.2004 (Annexure-6) passed by respondent Member Board of Revenue. They also seek quashing of notification dated 30.10.2004 (Annexure-7), issued by the respondent under Section 15(1) of the Bihar Land Reforms ( Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961 (Hereinafter referred to as the „Act‟). 2 Background facts giving rise to the present writ petition are as under:- On 17.08.1973, a land ceiling proceeding bearing no. L.C. 135 of 1973-74, in terms of the provisions of the Act was initiated against the family of writ petitioner(s) but in the name of Shiv Sharan Choudhry and others. Upon submission of verification report, a draft statement under Section 10(2) was published on 12.05.1976, inviting objection(s). Objection petitions were filed on behalf of the land holder(s)/writ petitioner(s). By order dated 12.11.1976, those objection(s) filed on behalf of land holder(s)/writ petitioner(s) were considered and disposed of. Some of the transfers made by the land holder(s)/ writ petitioner(s) were allowed holding them genuine but other objections were overruled. As per the objection of the landholder(s)/ writ petitioner(s), classifications in respect of the land(s) held by the landholder(s)/ writ petitioner(s) were not in accordance with the provisions of the Act. The land holder(s)/ writ petitioner(s), thus, claimed that part of the land(s) was Class IV land(s) whereas some part of the land(s) was Class-V land(s) which was/were located within the two embankments, and remain under water for major part of the year. The authorities found all the land(s) to be class-IV land(s). Aggrieved by aforesaid order the landholder(s)/ writ petitioner(s) preferred an appeal before the respondent Collector being appeal no. 354 of 1976. During pendency of the appeal, it appears, Act 55 of 1982 came into effect. Finding the said Act effective from 09.04.1981, 3 and in view of the provisions contained therein by order dated 30.12.1981, the appeal was held to have abated. Records of the Ceiling case were transmitted to the Court below for proceeding afresh. On notice requiring the landholder(s)/ writ petitioner(s) appeared. It appears the authority considered the earlier objections preferred by the petitioners/land holder(s) and by fresh order disposed of the same. However, having noticed that the proceeding was to initiate after abatement at the stage of Section 10 of the Act, the matter was again taken up from that stage. In 1983, a draft statement under Section 10(1) of the Act was prepared, copy whereof, was forwarded to the writ petitioner(s) /landholder(s) soliciting objection thereon. Few objection petitions were filed on behalf of the writ petitioner(s)/ land holder(s) which also pertained to the issue of classification. Some of the land(s) claimed to be Class-V land (s) instead of Class-IV land(s) as found in the verification report submitted in the case and accepted by the previous orders of the Ceiling authorities. Objection filed by the writ petitioner(s) /landholder(s) were considered and finally disposed of by order dated 24.10.1983, in terms of the provision contained under Section 10(3) of the Act. The authority by said order found all land(s) of the land holder(s)/writ petitioner(s) as Class-IV land(s). This was followed by a publication of final statement under Section 11(1) of the Act on 13.12.1983. Aggrieved by the aforesaid adjudication and notification/publication of final statement under Section 11(1) of the Act, appeal was preferred by the writ 4 petitioner(s) /land holder(s) vide Appeal no. 292 of 1983-84. Said appeal was considered and dismissed by the appellate Court vide order dated 19.10.1995. During pendency of the appeal, notification under Section 15(1) of the Act was published by the respondents. Aggrieved over the dismissal of their appeal, the land holder(s)/writ petitioner(s) filed revision before the respondent Board of Revenue vide Rev. no. 126 of 1995 which was dismissed. Writ petitioner(s)/land holder(s) challenged those orders/notifications, before this Court by instituting C.W.J.C. No. 5994 of 1997 (Satyadeo Narain Choudhry and Ors. Vs. State of Bihar & Ors.). Said matter was considered and disposed of by a proceeding dated 07.01.1998 (Annexure-1). From perusal of the aforesaid order, it appears that the writ petitioner(s) were allowed 05 units and, thus, permitted to retain 150 acres of Class-IV land(s). Rest of the land(s) i.e. 320.27 acres were declared surplus and acquired. Only point argued on behalf of the writ petitioner(s) was in respect of classification of the entire land as Class-IV land(s). It was contended that portion/part of the land(s) in question would come in category –V. With regard to the issue of classification, this Court noticed the submission of the State Counsel that from the objection filed by the land holder(s) under Section 10(3) of the Act, it appeared that the petitioner(s)/land holder(s) have themselves admitted that all the land(s) were not class V land(s). After having considered the rival submissions advanced on behalf of the parties, this Court disposed of the writ petition in the following manner:- 5 “….Having regard to the limited relief sought in the writ petition and the fact that the appeal was disposed of i.e. and their back, I am inclined to direct the Collector to consider the matter regarding classification of lands afresh in accordance with law, after giving opportunity of hearing to the petitioners. It will be open to the parties to adduce evidence in this regard. The impugned orders as contained in Annexure:- 2 is set aside. With the setting aside of the appellate order, the revisional order (Annexure:-1) also stand set aside. Till fresh final order is passed by the Collector, the alleged surplus lands of the petitioners will not be distributed.” From the pleadings on record, it appears that the records of Land Ceiling proceeding were made over to the Collector under the Act (D.C.L.R. Katihar), for adjudication with regard to the classification of land(s). Notice was issued to the land holder(s) whereafter they appeared. Prayer for adducing oral evidence made on behalf of the writ petitioner(s) was not acceded to but the alternate submission of the land holder(s) for holding local inspection/enquiry was allowed for which a date was fixed. It appears thereafter the matter, for one reason or the other, remained hibernating for over 06 years. In course of surprise inspection of the ceiling records by the higher Revenue Authority, slackness on the part of the Ceiling Authority in disposal of the matter, as per direction of this Court (Annexure- 1), was detected and the said Revenue Authority found collusiveness of the land holder(s) in keeping the matter pending for all these years. The matter was promptly brought to the notice of the Collector of the District by submission of report whereafter 6 the Collector by an order assigned records of L.C. 135 of 1973- 74 to the Additional Collector for disposal in accordance with the direction issued by this Court on the writ petition preferred by the land holder(s)/writ petitioner(s) (Annexure-1). With the consent of the land holder(s) a date for local inspection was fixed. On the said date i.e. 01.08.2004, the Additional Collector and other local Revenue Authorities visited the site(s) to ascertain status/classification of land(s). Neither the land holder(s) nor his/their counsel showed up on the date and time of inspection of the land(s). The Additional Collector, in course of his local inspection of the land(s) located in Mauzas Binodpur, Dharmaili, Hariharpur, Ramna Rajiganj, found the land(s) belonging to the land holder(s) fertile land inasmuch as crops such as banana was/were found grown thereon having tube- well facility provided by the land owner. Statement of few raiyats/under raiyats present on the site were also recorded, who all stated to the effect that the land(s) of the land holder(s) located in those mauzas were producing at least two crops in a year although part of them were located within the two embankments and/or adjacent to two river beds of Koshi. The matter was thereafter taken up on 05.08.2004 when, after hearing the parties, the Additional Collector disposed of the matter whereby it was found that the land(s) as in their present status were fit to be classified as Class- II or III land(s) but such classification was to be made with reference to 09.09.1970 and as such held that the land(s) of the land holder(s) were rightly classified as Class-IV land(s) 7 based on materials available on record including the statement of the witnesses recorded by him during his local inspection which formed part of the records. By his order dated 05.08.2004 (Annexure-3), respondent Additional Collector also observed that if two of the unit holder(s) in the family of the land holder(s) had died then the land(s) so allotted to them required to be distributed equally amongst his/their sons. This was followed by a notification under Section 11(1) of the Act. Since the land holder(s) did not exercise option and as such a draft notification under Section 15(1) of the Act was also prepared and forwarded to the Collector for approval and publication. Respondent Additional Collector also considered a petition filed by one Indu Devi claiming exclusion of 16.26 ½ acres of land as purchaser from the land holder under registered deed(s) executed after 09.09.1970. Such claim was made on the strength of a decree of the Court. The same was got verified. It was found that the land holder(s) in their objection did not disclose these alienations which were made after 09.09.1970. These lands were thus directed to be retained by the writ petitioner(s) within their lands allowed to be held by them after adjudication. Land holder(s)/writ petitioner(s) filed an appeal before the respondent Collector which was rejected by proceeding dated 17.09.2004 (Annexure-5) which gave rise to Revision case no. 29 of 2004 before the Respondent Board of Revenue. The Board of Revenue by its resolution dated 25.09.2004 found that so far as 8 the findings recorded by the two Courts below in respect of the classification of land(s) is/are concerned, the same did not require interference in view of materials available on record. As about the direction/observation of the Additional Collector that in the event of death of two of the land holder(s) who were earlier granted two separate ceiling units it has been found and held that the same does not hold good in view of the fact that adjudication in ceiling proceeding has to be made with reference to the appointed date i.e. 09.09.1970. The Board of Revenue, therefore, clarified that the land holder(s) shall continue to hold 05 ceiling units and if there is any death resulting devolution of interest on the other members of the family of the land holder(s) then the same is required to be dealt with in accordance with the provisions contained in Section 18 of the Act. It appears that on 30.10.2004, a final notification under Section 15(1) of the Act was issued keeping in view the direction(s) contained in the revisional order dated 25.09.2004. Aggrieved by those actions/orders, the present writ petition has been preferred. Several sets of affidavits and counter affidavits have been filed by the parties. Learned counsel for the petitioners has contended that the orders impugned suffered from vice of non carrying out the direction of this Court issued in C.W.J.C. No. 5994 of 1997(Annexure-1) inasmuch as local inspection for adjudging the classification of land(s) was not done in accordance with laid down procedure. No memo of inspection was prepared and 9 thereafter the land holder(s)/writ petitioner(s) was/were given opportunity to make submissions thereon pointing out defects, if any, therein. According to the writ petitioner(s), lands lie near the beds of river and part of which are located within the two embankments is admitted position. It is contended that the Authority under the Act erred in referring to and relying upon materials collected in course of such local inspection particularly statements recorded by the raiyats/adjoining raiyats Annexure R/3 to the Counter affidavit in the light of affidavits of some of those persons/raiyats brought on record (Annexure-9 series) stating therein that land(s) of the landholder(s)/writ petitioner(s) was/were not capable of growing any crop much less two crops and or presence of banana trees thereon having tube -well facility provided by the land holder(s) for irrigation. It is contended that Authority failed to take into account the order dated 15.02.1972 passed by the Assistant Settlement Officer, Purnia in suit no. 59 of 1971-72 (Annexure-4), passed in the matter of some other raiyats having land(s) in contiguous areas seeking fixation of land rent wherein it has been noted that river koshi had ravaged those areas diminishing their productivity. It is highlighted that as per provision of the Act classification of land(s) is to be made with reference to the appointed day i.e. 09.09.1970, and not with reference to the date of inspection. Learned counsel next submits that by order dated 05.08.2004, passed by the Additional Collector (Annexure-3), on remand, 02 units earlier granted to the land holder(s) was disallowed/slashed followed by issuance 10 of final statement under Section 11(1) of the Act which was, however, restored by the Board of Revenue vide order dated 25.09.2004 (Annexure-6), and directed for fresh issuance of final statement under Section 11(1) followed by notification under Section 15(1) of the Act which has not been done and the same vitiate the order and subsequent proceedings. Learned counsel next argued that from perusal of order of respondent Additional Collector it would appear that after signing the final statement under Section 11(1) of the Act claim of exclusion of land(s) made by one Indu Devi based on decree of a Civil Court was allowed and land(s) covered by the said decree were directed to be included within the land ceiling unit(s) of the land holder(s) by order dated 28.10.2004 which stood affirmed in revision. It is submitted that such order was passed after final statement made /issued under Section 11(1) of the Act and without any notice to the land holder(s) affording them an opportunity of hearing. It is also contended that after amendments effected in the Act, the whole proceeding was not taken up from the stage of Section 10 of the Act which would vitiate all subsequent orders/proceedings. Reliance in this regard is placed on 1990(1) PLJR 66 (Smt. Kunti Sharma & Ors. vs. State of Bihar & ors.) and 2006(2) PLJR 223 (Kashi Nath Singh & Anr. Vs. State of Bihar & ors.) Per contra, learned Assistant Counsel to Government Pleader no. 22 submits that from the materials on record, it would appear that more than adequate opportunity was allowed to the land holder(s)/writ petitioners to demonstrate that all land(s) 11 belonging to them were not class IV lands. It is submitted that even as per the case of the writ petitioner(s) not all land(s) covered in the proceeding were Class-V land(s) as they had themselves stated in their objection(s) that part of their land(s) were class-V land(s) whereas other land(s) were class-IV land(s). It is thus contended that findings based on materials on record that land(s) of the land holder(s) were class-IV land(s) do not call for any interference particularly when writ petitioner(s) were defaulter in not cooperating in the proceeding and absenting themselves on the date of local inspection fixed with the consent of the parties. Referring to Section 4 of the Act and relying on ratio decided by Apex Court in K.N.Farms Industries Private Limited vs. State of Bihar & ors. (2009(3) BBCJ 500 SC), it has been submitted that a wide connotation is to be accorded to the terms land occurring in the Act. It is the contention of the respondent that Apex Court having noticed the provision of the Act has held in paragraph no. 12 of the said case K.N. Farm industries Pvt. Ltd. that even a tank/pond appurtenant to the agricultural/horticultural land(s) used to irrigate or water will be land within the meaning of the Act. It is next argued that except the issue of classification no other fresh issue can be allowed to be raised by the land holder(s) in view of the order of this Court at Annexure-1. Heard learned counsel for the petitioners and the State. Perused the materials on record. This Court proposes to first deal with the issue with 12 regard to classification of land(s) raised by the writ petitioner(s). Writ petitioner(s) aggrieved by final adjudication made in the first round of litigation approached this Court in C.W.J.C. No. 5994 of 1997. By order dated 07.01.1998 (Annexure-1), the case was remanded to the Court below to consider the said matter afresh in accordance with law. Appellate order (Annexure-2 of the said writ case) and revisional order (Annexure-1 to the said writ case) were set aside and quashed. Records of Ceiling case L.C. no. 135 of 1973-74 were made over to the Deputy Collector Land Reforms, Katihar (Collector under the Act) for carrying out the direction of this Court. Said matter remained pending for close to 06 years, in which several dates were fixed but the writ petitioner(s) did not take effective steps to demonstrate either by filing documents or getting the land(s) inspected, that entire land located in different mouzas were lands lying close to river beds and not capable of growing crops for want of irrigational facilities provided either by the Government or its agencies and /or by the land holder(s). Section 4 of the Act provides as under:- “4. Fixation of ceiling area of land.- [On the appointed day the following shall be the ceiling area of land for one family consisting of not more than five members for the purposes of this Act:] (a) fifteen acres, that is, equivalent to 7.0705 hectares of land, irrigated or capable of being irrigated by flow irrigation work or tube wells or lift irrigation which are constructed , maintained, improved or controlled by the Central or the State Government or by a body corporate constituted under any law and which provide or are capable of providing water for more than one season ( hereinafter referred to as Class I land.) (b) eighteen acres, equivalent to 6.2846 13 hectares of land irrigated by such private lift irrigation or private tube-wells as are operated by electric or diesel power, and provide or are capable of providing water for more than one season ( hereinafter referred to as Class II land). (c ) twenty five acres, equivalent to 10.1175 hectares of land, irrigated or capable of being irrigated by works which provide or are capable of providing water for only one season ( hereinafter referred to as Class III land); or (d) thirty acres, equivalent to 12.141 hectares of land, other than those referred to in clauses ( a), (b), ( c), (e) and (f) or land which is an orchard or used for any other horticultural purpose ( hereinafter referred to as Class IV land); or (e) thirty-seven and a half acres, equivalent to 15.368 hectares of Diara land, or chaur ( hereinafter referred to as Class V land); or (f) forty-five acres equivalent to 18.211 hectares of hilly, sandy, forest land, even land perennially submerged under water or other kind of land none of which yield paddy, rabi or cash crops( hereinafter referred to as Class VI land)]”. Seen, thus, the writ petitioner(s) was required to demonstrate that classification of land(s) reflected in the verification report submitted at the initial stage of the proceeding was contrary to the said provision of the Act by demonstrating that entire land(s) was/were “Diara” or “Chaur”. They were required to demonstrate that the entire lands were not capable of yield paddy, rabi or cash crops. It is seen from those provisions that the land(s) that can be used for horticulture shall be classified as IV land(s). Let it not be forgotten that even as per the case of the writ petitioner(s), their entire land was/is not Class-V land(s). They admit from very beginning that part of their land(s) 14 was/were rightly found, on verification, as Class IV land(s). From the order of respondent Additional Collector dated 05.08.2004,(Annexure-3), it would appear that writ petitioner(s), on notice, appeared and proposed for a local inspection by the Authority which was accepted and allowed. The Additional Collector fixed a firm date (01.08.2004) for such inspection. The Additional Collector along with concerned Revenue functionaries went to the land(s) located in different mauzas and carried out inspection in which it was found that land(s) belonging to the writ petitioner(s) was/were having standing crops(banana). Irrigational facility by tube- well provided by the writ petitioner(s) were found present. Statement of some of the raiyats/under raiyats of those mouzas was/were taken which were made part of the records. Writ petitioner(s) or their counsel did not appear during the local inspection without their being any explanation whatsoever. Respondent Additional Collector, in course of such inspection, also found that State tube- well was also provided but seemed to be of recent origin. Having found so, respondent Additional Collector held in the impugned order that the classification of land(s) as class IV land(s) found in course of verification did not require any change/modification. In appeal respondent Collector found and held as under: “it is established from the record that on 17.07.2004 the learned counsel for the appellants appeared as a consensus was arrived at spot enquiry with regard to classification of land in question. Ist August 2004 was fixed as the date of enquiry but learned counsel for the appellants or appellants failed to appear for on the spot 15 enquiry on classification of land. After agreeing to file enquiry it was mandatory on their part to participate in the same. The appellant did not even bother to communicate his difficulty or reason for their absence. Hence the classification cannot be questioned now enquiry officer took evidence from independent and adjoining raiytas which is a part of lower Court record.” Respondent Board of Revenue in its resolution dated 25.09.2004 (Annexure-6), while dealing with the said issue, found as under in para 4 of the order:- “4- Hkw/kkjh }kjk /kkfjr Hkwfe ds oxhZdj.k ds fookfnr fcUnq ij vij lekgÙkkZ Hkwgncanh ds fnukad 5-8-2004 ds iz’ufpfUgr vkns’k vkSj ftyk lekgÙkkZ ds fnukad 17-9-2004 ds vkns’k ds voyksdu ifj’khyu ls Li"V gksrk gS fd fiNys N% o"kkZs ls iwoZorhZ vf/kfu;e lekgÙkkZ }kjk bl ij frfFk;ksa ij frfFk;ksa esa fopkj gksrk jgk vkSj oknhx.k muds le{k viuh mifLFkfr nsrs jgsA vr,o ;g U;k;ky; ;g rFk;xr vfHkfu’p; djrk gS fd oxhZdj.k ds fcUnq ij oknhx.k dks viuk i{k@lk{; j[kus dk i;kZIr volj izkIr gksrk jgkA nwljs] tc oknhx.k dh lgefr ls izfrLFkkuh vf/kfu;e lekgÙkkZ (vij lekgÙkkZ] Hkwgncanh) }kjk iz’uxr ekStksa esa Hkw/kkjh }kjk /kkfjr Hkwfe ds LFkyh; fujh{k.k dh frfFk fu/kkZfjr dh x;h rks oknhx.k vuqifLFkr jgs vkSj viuh vuqifLFkfr dk mUgksus dksbZ Li"Vhdj.k Hkh ugha fd;kA rhljs vij lekgÙkkZ ds LFkyh; fujh{k.k esa vkt ds le; esa /kkfjr Hkwfe ij oknhx.k }kjk eqgS;k djkbZ x;h futh cksfjax dh lqfo/kk ik;h x;h ftlls nks Qlyksa dh dVkbZ gksrh gS fdUrq] pq¡fd fu;r frfFk 9-9-70 dks iz’uxr tehuksa dh okLrfod fLFkfr gh bl izdj.k esa fu.kkZ;d gksxk] vr,o vij lekgÙkkZ }kjk mldk Li"V mYys[k djrs gq, of.kZr rF;ksa ds ifjisz{; esa /kkfjr Hkwfe dk muds }kjk oxZ 4 esa