IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2088 of 1984 1. Mundrika Singh, son of late Surajdeo Singh 2. Devendra Singh, son of late Surajdeo Singh 3. Sheo Prasad Singh, son of Devendra Singh 4. Ramji Singh, son of Devendra Singh 5. Singhasan Singh, son of Devendra Singh 6. Ram Suchit Singh, son of Devendra Singh 7. Kapildeo Singh, son of late Chandradeo Singh 8. Udheshwar Singh, son of Kapildeo Singh 9. Balindar Singh, son of Kapildeo Singh 10. Bhola Singh, All residents of village Chiraila, P.S. Rafiganj, District Aurangabad 11. Bauni Devi, wife of Ram Pravesh Singh, resident of village Lathua, P.S. Barachati, District Gaya 12. Shiyaram, wife of Sita Ram Singh, resident of village Bishambharpur, P.S. Rafiganj, District Aurangabad 13. Sheolochan Devi, wife of bhola Singh, resident of village Lathna, P.S. Barachati, District Gaya … Petitioners Versus 1. The State of Bihar 2. The Additional Collector, Gaya 3. The Collector, Gaya … Respondents -------------------- For the Petitioners: Mr. Surendra Kumar Singh, Sr.Adv. & Mr. Praveen Prakash, Adv. For the Respondents:Mr. Lalit Kishore, AAGI. --------------------- P R E S E N T THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kumar Jha,J. Heard counsel for the parties. 2. In this writ application the petitioners have prayed for quashing of the entire proceedings of Land Ceiling Case No. 70 of 1973-74/ 85 of 1976-77 initiated by the Additional Collector, Gaya including the draft statement dated 31.3.1982 published under section 10(2) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter referred to as „the Act‟) as also final publication of draft statement under section 11(1) of the Act and finally the notification dated 2 28.1.1984 published in Gazette on 30.1.1984 for acquisition of 163.88½ acres the land of the petitioners under section 15(1) of the Act. 3. Learned counsel for the petitioners has submitted that the entire land ceiling proceedings against the petitioners emanating from the draft statement dated 31.3.1982 under section 10(2) of the Act and culminating in the Gazette notification dated 30.1.1984 under section 15(1) of the Act is unsustainable, inasmuch as the same land which has been made subject matter of the aforesaid land ceiling case in Gaya District had already been made subject matter of Land Ceiling Case No. 276 of 1973-74/ 173 of 1975-76 in Aurangabad District, wherein a draft statement under section 10(2) of the Act was published on 16.8.1976 and had ultimately ended with the Gazette notification dated 27.11.1976 under section 15(1) of the Act declaring only 10.92 acres of the petitioners to be surplus. He has accordingly submitted that once a finality was arrived at way back on 27.11.1976 as with regard to the entire 235.98 acres of land situated in Gaya and Aurangabad District, the Collector of Gaya District had no power to initiate a fresh proceeding for the same land and consequently the orders passed by the revenues authorities of Gaya District as also consequential notification dated 30.1.1984 declaring 163.88½ acres of land of the petitioners as surplus cannot be sustained. 4. In this regard learned counsel for the petitioners has also explained that the solitary ground taken by the respondent authorities of Gaya District to initiate a fresh proceeding on the 3 strength of Ordinance No. 62 dated 9.4.1981 was itself misconceived, inasmuch as the said Ordinance had clearly contemplated initiation of a fresh proceeding from the stage of section 10 only in respect of such of the pending proceedings where a final publication under section 11 of the Act had not been made but in the case of the petitioners where the entire ceiling proceedings had already been completed in Aurangabad District way back in the year 1976 by way of publication of final gazette publication under section 15(1) of the Act, the Collector and other officials of Gaya District had no power to reopen and conclude such proceedings afresh as has been done by them while passing the impugned orders and issuing the consequential notifications. 5. Counsel for the State, on the other hand, has submitted that the entire exercise of power by the revenue authorities of Aurangabad district was meaningless and futile, inasmuch as, it is an admitted fact that the petitioners had 145.87 acres of land in Paraiya Anchal in the District of Gaya and only 86.11 acres of land in Rafiganj Anchal in the District of Aurangabad and as such, the land ceiling proceeding had to be conducted and concluded by the authorities in Gaya District in terms of Rule 6(2) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963 (hereinafter referred to as „the Rules). Learned counsel for the State has also submitted that as the authorities of Aurangabad District had acted in contravention of the aforementioned provision of the Rules, any order passed by the authorities of Aurangabad District allowing all 4 the claims of the petitioners for holding of 9 units in respect of 225.06 and leaving only 10.92 acres of land as surplus must be held to be nullity in the eye of law. He has also sought to justify the impugned orders and the notifications issued by the authorities of Gaya District on merit by impressing upon this Court that the petitioners were entitled for grant of only 4 units and the order of D.C.L.R., Aurangabad allowing nine units to them being a non- speaking order should not be approved by this Court. 6. In the light of the aforementioned rival contentions the first and foremost question would be as with regard to the jurisdiction of the authorities of Aurangabad District to initiate, continue and conclude land ceiling proceedings in relation to the lands of the petitioners both for Aurangabad District and Gaya District. As noted above, the fact asserted by the petitioners in the writ application to the effect that the petitioners were called upon by the Collector of Aurangabad District to submit return containing total area and description of land held by them and submission of such return by the petitioners on 19.12.1973 has not been controverted. As a matter of fact the respondents in their counter affidavit also do not dispute the fact that when a land ceiling proceeding in Aurangabad District was initiated against the petitioners, numbered as Case No. 276 of 1973-74/ 173 of 1975- 76, the L.R.D.C., Aurangabad, who had been entrusted to conduct the proceeding in capacity of the Collector under the Act by the Collector of the District of Aurangabad, had also called for a report from Anchal Adhikari, Paraiya in the District of Gaya and 5 the land of both Aurangabad District and Gaya District were made subject matter of the aforementioned ceiling case before the L.R.D.C., Aurangabad. 7. From the notification under section 10 of the Act dated 19.6.1976, it also becomes clear that lands measuring 235.98 acres of land of the petitioners falling in the jurisdiction of both Gaya and Aurangabad district was made subject matter of the land ceiling proceeding in Aurangabad District in Case No. 276/1973- 74 and after considering the objection filed by the petitioners under section 10(3) of the Act on 22.6.1976 nine units were allowed after considering the verification report submitted by the Anchal Adhikari, Rafiganj in Aurangabad district dated 7.8.1976 and Anchal Adhikari, Paraiya in Gaya district dated 11.7.1976 and the claim of the petitioners of their land being classified as Class IV was rejected by an order dated 24.9.1976 in the light of the report submitted by the Anchal Adhikari, Paraiya of Gaya District. Similarly, the claim for exemption of 11 acres of land on account of its having been sold prior to cut off date i.e. 9.9.1970 was also rejected in the same order dated 24.9.1976 and the petitioners were allowed to retain only 225.06 acres of Class III land as against 235.98 acres of their total land in Gaya and Aurangabad District. 8. As a matter of fact when the notification under Section 11 of the Act allowing the petitioners to retain 225.06 acres of land and seeking to acquire 10.92 acres of land was also made in or around 11.11.1976 which was also followed by the notification dated 27.11.1976 under Section 15(1) of the Act 6 which was also published in the Gazette, such a concluded proceeding was not capable of being reopened by the authorities of Gaya District including its Collector on any ground whatsoever much less on the basis of promulgation of Bihar Ordinance No. 62 of 1981 dated 9.4.1981, later made as an Act 55 of 1982, because the amended provisions also did not envisage issuance of a fresh draft statement under section 10 of the Act in respect of even a concluded proceedings. 9. Section 32B of the Act which was initially brought into force by the Ordinance 62 of 1981 on 9.4.1981, later made Act 55 of 1982, in this regard had clearly provided that: “32B. Initiation of fresh proceeding.- All those proceedings, other than appeal, revision, review or reference referred to in Section 32-A pending on the date of the commencement of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1982, and in which final publication under sub-section (1) of Section 11 of the Act as it stood before the amendment by aforesaid act, had not been made, shall be disposed of afresh in accordance with the provisions of Section 10 of the Act.” (underling for emphasis) 10. From the aforementioned underlined portion of the Act it would be clear that in the case of the petitioners no fresh proceeding could be initiated by the Revenue authorities of Gaya district in terms of Section 32B of the Act, inasmuch as in case of the petitioners not only a final publication under subsection (1) of Section 11 of the Act for the same land situated in Gaya and 7 Aurangabad district had already been made by the Additional Collector of Aurangabad District in or around 11.11.1976 but even the final Gazette publication for acquisition of surplus land under section 15(1) of the Act had already been made on 27.11.1976 duly authenticated by Mr. P.S. Mukhopadhya, Additional Secretary to the Government of Bihar in the name of Governor of Bihar for acquiring 10.92 acres of surplus land of the petitioners as would be evident from Annexure 8 to the writ application. 11. In this regard it is also significant to refer to the pleadings on record, inasmuch as, in paragraph no.9 & 10, the petitioners have with regard to the proceedings concluded in Aurangabad district had stated as follows:- “9. That the learned L.R.D.C., Aurangabad, without properly considering the objection petition filed under section 10(3) of the Act rejected the same by his order dated 24.9.76 and directed for taking action under section 11(1) of the Act. 10. That in compliance with order dated 24.9.76 the statement under section 11(1) of the Act was finally published and therefore a Gazette Notification dated Patna the 27.11.76 was published under section 15(1) of the Act for acquisition of 10.92 acres of lands of the petitioners.” 12. The aforesaid categorical averments as with regard to the publication of Section 11(1) notification and Section 15(1) notification concluding the proceedings as a whole in respect of land of the petitioners situated both in Gaya and Aurangabad district have not been controverted by the respondents in their counter affidavit who in paragraph no.15 while dealing 8 with the aforementioned averments of paragraph nos. 9 & 10 in the writ application have stated as follows:- “15. That with regard to statement made in paragraphs 6,7,8,9,10 and 11 are matters of record.” 13. Thus strictly speaking when the respondents in their counter affidavit have also not controverted the aforesaid specific and categorical averment of the petitioner, there would be no difficulty for this Court in holding that the proceedings under the Act for the entire land held by the petitioners both in Gaya and Aurangabad District against the petitioners had stood concluded way back in the month of November, 1976 leaving nothing for the Collector of Gaya District after more than five years to initiate a fresh proceeding from the stage of Section 10 of the Act on 31.3.1982 as has been sought to be done by him under the impugned order contained in Annexure-1 to this writ application. 14. This Court, however, in order to be doubly sure as with regard to issuance publication of the notification under section 11 of the Act in the District of Aurangabad which is the lone repository of power to initiate a fresh proceeding in terms of section 32B of the Act had directed the learned counsel for the State by an order dated 12.9.2011 to produce the original record of the land ceiling case relating to the petitioners both in Aurangabad and Gaya District. Mr. Lalit Kishore, learned AAGI, appearing on behalf of the State, had also assured that such records of the land ceiling case of the petitioners, Ceiling Case No. 70 of 1973-74/ 85 of 1976-77 and Case No. 276 of 1975-76/ 173 of 1975-76 would 9 be produced within a period of one week in keeping with the stand taken by the respondents in paragraph 23 of the counter affidavit, wherein it was said as follows: “That the deponent craves leave of this Hon‟ble Court to refer and produce the original records of the land ceiling case of Aurangabad as well as Gaya District at the time of final hearing.” 15. The case thereafter was again placed for production of such records on 20.9.2011 on which day learned AAGI again had sought an adjournment of 15 days assuring that the records would be produced before this Court on 26.9.2011. The records of the ceiling case were, however, not produced even on 26.9.2011 and when a prayer was made for giving a last indulgence for the purposes of production of records this Court by an order dated 26.9.2011 had allowed such prayer but on 17.10.2011, the ultimate answer which has come from the authorities of the State particularly the Collector of Gaya and Aurangabad District is quite baffling. A stand has now been taken that the entire original records of both the ceiling cases of Gaya and Aurangabad District were sent by the Collectors of Gaya and Aurangabad District to the concerned Law Officer in the office of the learned Advocate General for preparation of the counter affidavit and the same had never been returned back to them. Mr. Lalit Kishore, learned AAGI, in fact also had informed this Court that there was no photo copy or shadow records of the ceiling case available in the office of the Collector of Gaya District and/or Aurangabad District. 10 16. In absence of production of the relevant records an adverse inference has to be drawn against the respondents in terms of Section 114(g) of the Evidence Act. It matters little as to whether the records were made to disappear in the office of the Collectors of Gaya and/or Aurangabad District or in the office of the learned Advocate General inasmuch as the facts remains that the records of the ceiling case involving more than 230 acres of land are missing and yet nothing significant has been done to even reconstruct the records. It is of course for the respondents to set their house in order but then as they themselves had undertaken in the counter affidavit to produce the original records of the ceiling case of both Gaya and Aurangabad District and have failed to produce them before this Court, it has to be held that the vague reply of paragraphs no. 9 and 10 of the writ application in paragraph 15 of the counter affidavit is quite deliberate. 17. As noted above, the petitioners have categorically stated in paragraphs of 6 to 11 that the notification under section 11(1) of the Act was issued and published in Aurangabad district which was also followed by a Gazette Notification dated 27.11.1976 under section 15(1) of the Act for acquisition of 10.92 acres of surplus land of the petitioners. The reply thereof in paragraph no.15 of the counter affidavit to the effect being only “matters of record” is not only evasive but also direct proof of the fact that Section 11(1) notification had already been made after passing of the order by the Collector under Section 10(3) of the Act on 24.9.1976 and before publication of 11 the notification under section 15(1) of the Act on 27.11.1976. Though exact date of publication of the notification under section 11(1) of the Act could not be determined by this Court in absence of records, this much becomes clear that the notification under section 11(1) of the Act pursuant to final order passed by the Collector under the Act under section 10(3) of the Act was issued which ultimately led to also publication of final notification under section 15(1) of the Act. It has to be noted that there can be no notification under section 15(1) of the Act unless it is preceded by a notification under section 11(1) of the Act. 18. Learned counsel for the petitioners in fact seems to be correct that there was no requirement in the year 1976 for publication of notification under section 11(1) of the Act in Gazette which for the first time was made mandatory in view of the amendment made in the year 1981, in view of ordinance dated 9.4.1981, later on enacted as Act 55 of 1982. In that view of the matter, this Court will have no hesitation in holding that the ceiling proceeding in respect of the entire land in question was already completed in the year 1976 itself by allowing nine units to the petitioners and declaring only 10.92 acres out of 235.98 acres as surplus and could not have been made subject matter of a fresh proceeding from the stage of section 10 in view of specific bar under section 32B of the Act. 19. There can also be no escape from the accepted position in law that Section 32B of the Act is mandatory in nature and intendment of the legislature was only to initiate a fresh 12 proceeding in which a final publication under sub-section (1) of Section 11 had not been made. Reference in this connection may be made to the Full Bench judgment of this Court in the case of Harendra Prasad Singh Vs. The State of Bihar & Anr. reported in 1984 PLJR 908 wherein it was held as follows:- “19(i) Under the mandatory provision of section 32B the Revenue authorities are obliged to dispose of afresh all pending proceedings except those in which final publication under sub-section (1) of section 11 of the Ceiling Act has already been made prior to the 9th of April, 1981, being the date of the commencement of the Amending Act.” 20. The Full Bench in the aforesaid case had also approved the earlier Division Bench Judgment in the case of Chandrajot Kuer & many others Vs. State of Bihar & Ors. reported in 1984 PLJR 90 wherein it was held as follows:- “18. --------A proceeding under the ceiling law does not end merely by an order made by the competent authority. Its conclusion depends upon the final publication of the draft statement as provided under section 11(1) of the Ceiling Act and even such a publication does not conclude the proceeding because the final publication of the acquisition of surplus lands is yet made under section 15(1) of the Ceiling Act.-------” 21. In the present case when not only the respondents have admitted as with regard to the publication of draft statement under Section 11(1) of the Act but have also not been able to deny the issuance of Section 15(1) notification and its publication in the Gazette vide Anenxure-8 to the writ application, it has to be held that the ceiling proceeding as against the 13 petitioners in respect of the land in question, which has been made subject matter of the impugned orders contained in Anenxure-1 & 2, had already stood concluded way back in November, 1976. In that view of the matter, this Court will have no difficulty in accepting the submission of the learned counsel for the petitioners that the concluded land ceiling proceedings of the petitioners both in respect of the land held by them in Gaya and Aurangabad District way back in November, 1976 could not have been made subject matter of a fresh proceeding at the instance of the revenue authorities of Gaya District. 22. The matter can be viewed from another angle. The petitioners even after being allotted 9 units under the order of the D.C.L.R., Aurangabad dated 24.9.1976 declaring their 10.92 acres of land to be surplus had moved this Court in CWJC No. 752 of 1977 to save their remaining 10.92 acres of land on the ground that they were entitled to 3/10 units for the sons and daughters of one Udheshwar Singh and had also assailed the order of the D.C.L.R. as with regard to the classification of land claiming such land to be Class-IV land instead of Class-III. A Division Bench of this Court while considering the aforementioned grievance at the instance of petitioner no.1 had passed the following order on 4.8.1977:- “In this application under Article 226 and 227 of the Constitution of India the petitioner has prayed for quashing of Anenxure „3‟, an order passed by respondent no.2, Land Reforms Deputy Collector, Aurangabad, under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of 14 Surplus Land) Act, 1961. 2. The petitioner claimed nine units for his family and nine units have been allowed. It is not his case even before this Court that he was entitled to any more unit. It has been submitted that in his objection petition dated 23.7.1976 (which has been made Anenxure 2) he claimed that one Udheshwar Singh, who was allowed one unit, had three sons and three daughters, and, therefore, was entitled to hold one unit plus 1/10 X 3 units but no such extra land has been allowed for the children. The record of the case has been placed before us and it appears that the petitioner filed a genealogy on 29.12.1973. In that genealogy there is no person of the name of Udheshwar Singh. Further, one Sheo Prasad is shown to have only two children for whom no extra units could have been allowed. It may be that in between 1973 and 1976 more children were added to the family but the units have to be decided with reference to the appointed day that is, 9.9.1970, and the petitioner cannot claim any extra land on the basis of the facts stated in Annexure „2‟. 3. The only other question raised is as to the classification of the lands. The petitioner did not prefer any appeal to the Collector nor did he files any revision before the Board of Revenue. The question of classification of land, which is a question of fact, could have been more properly gone into by the appellate court. In the circumstances, when no appeal was preferred by the petitioner, we do not think, it will be proper on our part to entertain the objection as to the classification of the land in this writ application. 4. In the result, we find no merit in this application, which is, accordingly, dismissed, but without costs.” 23. Thus, it becomes clear that the order passed by the ceiling authorities of Aurangabad district as with regard to the grant of 9 units to the petitioners had also acquired finality in view of the Division Bench order of this Court dated 4.8.1977 which could not have been even otherwise reviewed by the ceiling 15 authorities of Gaya district by reducing 9 units of the petitioners to 4 units as has been done under the impugned orders. Though the respondents have referred the aforementioned order dated