CIVIL WRIT JURISDICTION CASE No.7936 OF 1991 In the matter of an application under Articles 226 and 227 of the Constitution of India. 1. ABDUL QUAYUM, SON OF ABDUL MAJEED. 2(i) JAIGAN NISSA, WIFE OF ABDUL QUAYUM 2(ii) MD. ISLAM, SON OF ABDUL QUAYUM 2(iii) SAIRA KHATOON ALIAS PAGLI 2(iv) RABIYA BIBI 2(iii) AND 2(iv) ARE DAUGHTERS OF ABDUL QUAYUM ALL RESIDENTS OF VILLAGE KASHIPUR ILUABARI, P.O. SINGHIA, P.S. KISHANGANJ, DISTRICT KISHANGANJ. 3. ABDUL LATEEF, SON OF MD. HANEEF 4(i) FARZAND ALI 4(ii) SHOIB ALI 4(iii) MD. YUNUS ALL SONS OF TAJUDDIN 4(iv) RABIYA KHATOON 4(v) MOHBA KHATOON 4(vi) VALESHA KHATOON ALL DAUGHTERS OF LATE TAJUDDIN ALL RESIDENTS OF VILLAGE KASHIPUR, ILUABARI, P.S. KISHANGANJ, DISTRICT KISHANGANJ. 5. AYUB ALI, SON OF HAMJU MUNNA 6. YUSUF ALI 7. HABIBUR RAHMAN 8. FAIJUDDIN 9. DOST. MOHAMMAD SONS OF LATE USMAN ALI 10. SOHRAB ALI 11. SAJJAD ALI 12. AMJAD ALI SONS OF LATE MAHARULLAH 13. AKMAL HUSSAIN, SON OF MAQBOOL HUSSAIN ALL RESIDENTS OF VILLAGE KASHIPUR, ILUABARI, P.S. KISHANGANJ, DISTRICT KISHANGANJ. 14. ABDUL WAHAB, SON OF LATE ABDUL JABBAR 15. MOST. MEHMOODA KHATOON, WIFE OF ABDUL WAHAB 16(i) ABDUL RAZZAK RESIDENT OF VILLAGE KULAMANI, P.O. SINGHIA, P.S. & DISTRICT KISHANGANJ 17. MOST. SHAMAUN NEHAR, WIFE OF ISA MOHAMMAD 18. ISA MOHAMMAD, SON OF LATE SHER ALI 19(i) AZEEMAN BIBI 19(ii) ISHAQUE ALI 19(iii) ISMAIL ALI 19(iv) NEHRUN NISSA 19(v) MAIJUN NISSA ALL RESIDENTS OF VILLAGE KULAMANI, P.O. SINGHIA, P.S. KISHANGANJ, DISTRICT KISHANGANJ 20. ABDUL KHALIQUE, SON OF LATE ILAMUDDIN Sl. NO. 14 TO 20 RESIDENTS OF VILLAGE KULAMANI, P.S. KISHANGANJ, DISTRICT KISHANGANJ. 2 21. HABIBUR RAHMAN, SON OF MD. ISMAIL RESIDENT OF VILLAGE KASHIPUR ILUWABARI, P.S. KISHANGANJ, DISTRICT KISHANGANJ. ---------------------------------------------------------------------------------------------- PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR, KISHANGANJ 3. THE DEPUTY COLLECTOR LAND REFORMS, KISHANGANJ, DISTRICT KISHANGANJ. 4(i) HAYATUN NISSA 4(ii) MAHTAB ALI 4(iii) AINUL HAQUE 4(iv) MAZHARUL HAQUE 4(v) AKHTAR HUSSAIN 4(vi) SAMAUN BIBI 4(vii) NOORESHA BIBI 4(i) TO 4(vii) RESIDENT OF VILLAGE KULAMANI, P.O. SINGHIA, P.S. KISHANGANJ, DISTRICT KISHANGANJ. 5. RAM PRASAD RAM, SON OF NATHUNI RAM 6. CHALITTAR RAM, SON OF GENA RAM 7(i) KUSSAR RAM 7(ii) GOPAL RAM 7(iii) BINOD RAM 7(iv) MEENA KUMARI 7(v) KUPPI KUMARI ALL RESIDENTS OF VILLAGE KULAMANI, P.O. SINGHIA, P.S. KISHANGANJ, DISTRICT KISHANGANJ. 8. MACHCHHU RAM, SON OF DADIR RAM 9. GANESH RAM 10(i) KARTIK RAM, MINOR SON UNDER THE GUARDIANSHIP OF DURGA RAM, UNCLE AND NATURAL GUARDIAN WITH WHOM HE HAS NO ADVERSE INTEREST. RESIDENT OF VILLAGE KULAMANI, P.O. SINGHIA, P.S. KISHANGANJ, DISTRICT KISHANGANJ. 11. SHRI CHARAN RAM, SON OF LAKHAN RAM 12. DHANUKHI RAM, SON OF CHALITTAR RAM NOS. 4 TO 12 RESIDENTS OF VILLATE KULMANI, P.S. KISHANGANJ, P.O. SINGHIA, DISTRICT KISHANGANJ -------------------------------------------------------------------------------------------- RESPONDENTS For The Petitioners : Mr. N. HODA, Advocate Mr. Arjun Prasad, Advocate For the State : s. Juhi Kumari, A.C. to S.C. 3 P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN 3 S.A. Khan, J. This matter was heard by the Collector, Kishanganj after an order passed by this Court on 5.10.1988 in CWJC No. 7597 of 1988 with respect to Ceiling Case No. 6/Ceiling-Swe-1045/76 instituted against the land holder Riyasat Hussain. 2. Petitioners’ claim that they had purchased land from Riyasat Hussain respondent no. 4, vide sale deeds executed between 1959 to 1975. The sale deeds have been described at paragraph 3 of the writ application. It has also been stated at paragraph 4 that the petitioners or their ancestors have purchased certain lands from the co-sharers of Riyasat Hussain whose names find place in the Khatiyan. It is submitted that the lands which were belonging to the co-sharers of Riyasat Hussain, have been surrendered by him although he was not the owner or recorded tenant of the land. With respect to the purchase from Riyasat Hussain and his co- sharer the petitioners submit that the Collector ought to have made an enquiry under Sub-Clause 3 of Section 5(1) of the Bihar Land Reforms (Fixation of Ceiling Area 4 and Acquisition of Surplus Land) Act,1971 (hereinafter referred to as ‘the Ceiling Act’). 3. This Court directed that the petitioners should file an application under Section 45B before the Collector. Accordingly the petitioners filed the said application. The Collector has rejected the application under Section 45B on the ground that it has been filed after a delay, inasmuch, the lands have been acquired under Section 15(1) of the Ceiling Act and has been distributed to the Purchadharis. The case of the petitioners for reopening the ceiling proceeding has thus been rejected. 4. On perusal of the order of the Collector, Kishanganj, it appears that the Collector has taken into consideration the fact that the land holder has surrendered the lands voluntarily under Section 9 of the Ceiling Act. This Court finds that the approach of the Collector is erroneous inasmuch, in a proceeding under Section 45B, the Collector has to examine the records of the ceiling proceeding, specifically the records which relate to the enquiry made by 5 the State, with respect to the lands in question. The enquiry made during the ceiling proceeding necessarily means that the Collector/Additional Collector has to get the report with respect to the status, ownership of the land from the revenue records. It has been specifically stated and also indirectly accepted by the Collector that the petitioners or their ancestors have got their names mutated in the revenue records with respect to the lands which have been purchased by them. Apart from which Chaks have also been carved out in their names during the consolidation proceedings. All these facts would be available in the office of the Circle Officer. Therefore, it appear strange, that without ascertaining or without referring to this aspect of the matter, the Collector has rejected the application under Section 45B. 5. Taking into account specific case of the petitioners that his vendor Riyasat Hussain and the co-sharers are recorded land owners in the Khatiyan prepared with respect to the lands in question, subsequent to which the lands were transferred and mutated 6 in their names, this aspect of the matter had to be considered by the Collector. 6. The other aspect of the matter is that once there is a finding or a report regarding the transfer of land made by a land holder then the provisions of Section 5(1)(3) and Section 9 of the Ceiling Act come into play. Section 5(1)(3) of the Ceiling Act envisage that the Collector shall have the power to make an enquiry in respect of any transfer of land by a land holder, whether by a registered instrument or otherwise made after 22.10.1959. The purpose is to determine whether the transfer was made with the object of defeating or incontravention of the provisions of the Ceiling Act. It is also required that the Collector may give a reasonable notice to the parties concerned to appear and be heard in the matter. This Court has no way of knowing whether these procedures were followed in the land ceiling proceeding. Counter affidavit filed on behalf of the State also does not indicate whether the provisions of Section 5(1)(3) were followed by the Collector during the Ceiling 7 Proceeding instituted against Riyasat Hussain. 7. The language of Section 9 of the Ceiling Act provides that if the Collector has come to the conclusion during the enquiry under Section 5(1)(3) that the lands transferred by the land holder beyond the cut off date, against whom a Ceiling Proceeding is pending has been made to defeat the provisions of the Act, it is incumbent that the lands so transferred should be deemed to have been selected by the landlord and would be allotted to him during the Ceiling Proceedings. The fact that the land holder while exercising his right under Section 9 of the Act to select the lands which he wishes to retain, gives in writing that the lands transferred should be declared as surplus land would not absolve the State from conducting an enquiry regarding transfers made by the landlord, and thereafter allotting the lands, so transferred to the unit of the landlord. 8. I, therefore, find that the order refusing to interfere or reopen the case under Section 45B is defective as, it does 8 not deal with the main issues raised by the petitioners that the lands in question were duly mutated and recorded in their names and some of the lands which have been declared as surplus lands (paragraph 4) do not belong to the land holder. It is essential that the Collector should consider these two aspects of the matter, after examining the records of the Ceiling case in question, and noticing the concerned parties including the landlord. 9. The order contained in Annexure-5 series is thus quashed and the matter is sent back to the Collector to examine the case in the light of the observations of this Court. The Collector may decide the issues aforesaid within a period of four months after valid services of notices on the concerned parties. The petitioners are directed to produce a copy of this order within a period of six weeks on receipt of the order before the Collector of the District. 10. This Court by order dated 12.2.1993 had ordered that the status quo should be maintained with respect to the 9 lands. In the result, this Court is also passing an order of status quo with respect to the lands as mentioned in Schedule A of the writ application until final disposal of the matter by the Collector, Kishanganj. 11. This writ application is thus, allowed. Patna High Court, 9th of November, 2010 N.A.F.R./Sanjay ( Sheema Ali Khan, J.)