IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.723 of 2008 1. TULSI MANJHI son of late Karu Manjhi 2. Badhan Manjhi, son of late Dashrath Manjhi 3. Mithilesh Manjhi, son of late Bechan Manjhi 4. Ram Briksha Rabidas, son of Jugeshwar Rabidas 5. Nandu Rabidas, son of Jethu Rabidas 6. Jethu Rabidas, son of Kishun Rabidas 7. Jageshwar Rabidas, son of late Parmeshwar Rabidas 8. Surendra Paswan, son of Sitaram Paswan 9. Sahai Manjhi, son of Bandhu Manjhi 10. Barti Devi, Daughter of Chhothan Rabidas 11. Bhagat Manjhi, son of late Bandhu Manjhi 12. Gohan Manji son of Bhattan Manjhi All are residents of vill.-Derawan, P.S.-Bodh Gaya, Distt.-Gaya---- Petitioners-Appellants. Versus 1. THE STATE OF BIHAR 2. The Collector, Gaya 3. The Additional Collector, Gaya 4. The Anchal Adhikari, Bodh-Gaya, Gaya 5. Rajendra Prasad Singh 6. Surendra Prasad Singh 7. Nagendra Prasad Singh All respondent nos.5 to 7 are sons of late Girija Nandan Singh, residents of vill.-Jalalpur, P.S.-Tekari, Distt.-Gaya. ------------Respondents. ----------- 5. 29.11.2010 The present L.P.A. has been filed against the order dated 9.7.2008 in C.W.J.C. no.9400 of 2005 whereby and whereunder the connected writ application questioning a direction of the competent authority to denotify the surplus land of Respondent nos.5 to 7 and cancelling the settlement of such land to the petitioners at the behest of the appellant-writ petitioners has been dismissed by the learned single Judge. The facts giving rise to this appeal lie in a very narrow compass. The appellant-writ petitioners had filed the connected writ petition, C.W.J.C. no.9400 of 2005 for a direction to the respondents for restraining them from being removed of their respective possession 2 of surplus land settled as also for quashing of the order dated 8.9.2004 wherein the Additional Collector, Gaya, while modifying notification no.823-824 dated 21.6.2003 by a notification no.923-924 dated 6.2.2004 had directed to submit a proposal for cancellation of Parwana if settlement of land had already been in terms of the notification dated 21.6.2003. The appellant-writ petitioners in fact had claimed that land had been settled to them and Parwana had been issued in the year 1993-94 and as such, they ought to have been given notice and/or given opportunity of hearing before passing of the impugned order by the Additional Collector, Gaya, dated 8.9.2004. Learned single Judge after considering the materials on record and in the light of the averment made in the counter-affidavit filed by the respondents had dismissed the writ application by holding that such settlement of land in favour of the appellant-writ petitioners was a fallout of a land ceiling proceeding wherein land of the respondent nos.5, 6 and 7 was declared to be surplus 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‟) but when the said notification was itself quashed by this Court in the pending writ petition filed by the land-holders, respondent nos.5,6 and 7, the appellant-writ petitioners had been left with no right to retain such land and to that extent he has also applied the doctrine of lis pendens. Assailing the aforementioned finding recorded in the impugned order passed by the learned Single Judge learned counsel for the appellant-writ petitioners has submitted that the right of the appellant-writ petitioners of being heard in a proceeding arising out of „Act‟ had been settled in the judgment of the Apex Court in the case of 3 Baban Paswan and another Vrs. Pratima Devi and others reported in (2003) 10 Supreme Court Cases 239. Therefore once it was admitted that the impugned order for cancellation of settlement of land and the consequential Parwana of the appellant-writ petitioners was passed on 8.9.2004 by the Additional Collector without affording an opportunity of hearing to the appellant-writ petitioners, the same was fit to be interfered and quashed by following the ratio of Baban Paswan (supra). Per contra, learned counsel for the respondents has submitted that the order dated 8.9.2004 was passed by the Additional Collector, Gaya, only by way of compliance of the order of this Court in the writ petition filed by the respondent nos.5,6 and 7 assailing the correctness of the notification issued under section 15(1) of the „Act‟ wherein it was held that they were entitled to get two more units of land and thus retained their land which was declared surplus in the earlier notification dated 21.6.2003. It has been further contended that the remedy for the writ-petitioners therefore was to seek review of the order of this Court passed in the writ application filed by the land- holders, respondent nos.5 to 7, because such orders had remained unchallenged and unaffected, there was no option for the official respondents but to exempt the lands in question from the purview of the proceeding under the Act. In our considered opinion, the submission of the learned counsel appearing on behalf of the respondents is fit to be accepted inasmuch as it is not in doubt that a proceeding under the Act was initiated against the land-holder Girija Nandan Singh, father of respondent nos.5 to 7, in Land Ceiling Case no.318/1347 of 1973-74 wherein 44 acres and odd of class-III land in village Dirama was 4 declared surplus in view of an order dated 11.1.1988 passed by the Dy. Collector, Land Reforms, Gaya, who had rejected the claim of two units to the land-holders in the name of respondent nos.6 and 7. It is however an admitted fact that they were eventually found entitled for being granted two units under the order of this Court dated 17.11.1997 in C.W. J.C.no.2625 of 1996, after their Appeal no.123 of 1987-88 was rejected by an order dated 4.8.1989 by the Collector of the district and their revision was also dismissed on 14.9.1995 by the Board of Revenue in Revision Case No.276 of 1989. It would be thus useful to quote the relevant portion of the aforesaid order of this Court dated 17.11.1997 in C.W.J.C. no.2625 of 1996, which reads as follows:- “ Grievances of the substituted petitioner in this case is that the authorities were not justified in treating the petitioners Surendra and Nagendra as minors on 9.9.1970 without giving any opportunity for ossification test in relation to their age. A counter affidavit has been filed on behalf of the State in which it has not been denied that ossification test was not done. As the materials produced before the authorities were conflicting, it was all the more necessary for them to direct for holding ossification test. Accordingly, this application is allowed, orders contained in annexures 2, 3 and 4 are hereby quashed and the matter is remanded to Additional Collector, Ceiling Case to pass order afresh upon objection under section 10(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. Before disposal of the objection the authorities shall see that ossification test is done to determine age of petitioners Surendra and Nagendra. This writ application is thus disposed of. ” It is also not in dispute that after the order of remand passed by this Court, a Medical Board was constituted and the Additional Collector had held the land-holders, respondent nos.6 and 7 to be minor on appointed date, i.e., 9.9.1970 vide his order dated 7.12.1998 5 which was again assailed by the land-holders, respondent nos.6 and 7, in C.W.J.C. no.2839 of 1999 and it was this Court which had allowed the said writ application by its order dated 30.3.1999 after quashing the impugned order dated 7.12.1998 with a direction to the authorities under the Act to treat both respondent nos.6 and 7 as major on the appointed day for granting them two units. The relevant portion of the aforesaid order of this Court dated 30.3.1999 reads as follows :- “ In this case, prayer has been made for quashing the order of the Additional Collector, Gaya, dated 7.12.1999 in Ceiling Case no.318 of 1973- 74/1347 of 1974, whereby, the claim of the petitioners for two units in favour of petitioners no.2 and 3( Surendra Prasad Singh and Nagendra Prasad Singh respectively) has been rejected. It appears this Court having appreciated the grievances of the petitioner by order dated 17.11.1998 in C.W.J.C.no.1625 of 1996 had quashed all the relevant notifications with a direction to the authorities to have ossification test of the above- named two persons in order to determine their age. It appears as per the direction of this Court the ossification test of both these persons was done on 30.6.1998 and to the opinion of the doctors, both the persons were in between 45 to 50 years of age on that day. A copy of the report is Annexure-7. Thereafter, as would appear from the order of the Additional Collector, as contained in Annexure-8, in Land Ceiling Case no.318 of 1973-74/1347 of 1974 the claim of the petitioners for grant of additional units was rejected, treating their age as 45 years. Learned counsel for the petitioners contended that even from the report of the Medical Board it would appear that the age of the petitioners was assessed in between 45 to 50 years. Therefore, the benefit of such assessment should always be given in their favour, treating their age either 47 ½ year or 50 years. But it cannot be presumed that both brothers were of the same age i.e. 45 years on the date of determination. In my view, grievance of the petitioners appears justified. Because in such a circumstance equity demands that benefit should always be given to weaker side. I, therefore, taking into consideration the facts, stated above, as well as the assessment of age 6 done by the doctors, quash the impugned order with a direction to the authorities to treat both the persons (petitioners 2 and 3) major on the appointed day, and grant additional units. With the aforesaid direction/observation the writ petition as well as interlocutory application both are thus, disposed of. ” In the opinion of this Court once such a direction had already been issued by this Court in the order dated 30.3.1999 in C.W.J.C. no.2839 of 1999, the same had to be given effect to by restoring the land of the land-holders, respondent nos. 5 to 7, which were earlier declared to be surplus under the order of the authority which had also been quashed by this Court in the aforementioned two writ petitions filed by the respondent-land holders. It is thus clear that the impugned order dated 8.9.2004 in effect was only by way of compliance of the direction given by this Court. As a matter of fact, the appellant-writ petitioners were also fully concerns of this fact inasmuch as in paragraphs-18 to 26 of their connected writ petition they had after narrating the events had also sought to assail the aforesaid two orders of this Court dated 17.11.1997 passed in C.W.J.C. no.2625 of 1996 and dated 30.3.1999 passed in C.W.J.C. no.2839 of 1999 on various grounds. In this context it would be useful to quote paragraphs-18, 21 and 24 of the writ petition which read as follows :- “ Para-18- That the Hon‟ble Court‟s order contained in Annexure-12 clearly shows that the state is the consenting parts in passing of the order and the counsel for the State for the reasons best known to him has not placed the real state of affairs regarding the case either orally or on Counter Affidavit. The order further shows that no other points except the age of Surendra Singh and Nagendra Singh was considered which is incongruent to the order passed by Hon‟ble Mr. Justice B.N. Agrawal contained in Annexure-6 by which the case was remanded for passing order afresh on objection to be filed u/s 10(1) of the Act. 7 “ Para-21- That it is not out of place to mention that the petitioners of C.W.J.C. no.2839 of 1999 i.e. respondent nos.5,6,7 also filed I.A. no.3799 of 1999 in C.W.J.C. no.2839 of 1999 stating falsely that the surplus land has not been distributed and the same was still in possession of petitioners. As the lands were distributed as back as in 1993-94 supported by Annexure-2,3 series the statements stand prima facie bald wrong, false and a white lie and the Hon‟ble Court‟s order seems to have been obtained under the circumstances fraudulently. The consent accorded by the state in passing the order by the Hon‟ble Court contained in Annexure-12 and keeping complete silence over the distribution of lands already made to the parwana holder on 9.7.1993 in Case no.1/93-94 is mysteriously, strange and thus makes the order obtained fraudulently vitiated. ” “ Para-24- That the petitioners as were not made parties to the writ petition filed before this Hon‟ble Court the point regarding distribution of land to them by Bhudan Yojana Committee could not be made available to the Hon‟ble Court by respondent Nos.5,6,7 and that too deliberately. ” Thus it becomes more than clear that the appellant-writ petitioners, in the garb of assailing the consequential order passed by the Additional Collector which was only by way of compliance of the order of this Court, had in effect sought a relief for quashing of the two orders passed in favour of the land-holders by raising a plea of not being made party to the aforementioned writ application of the land- holders. This, however, in the opinion of this Court is wholly impermissible in law inasmuch as if the two orders affecting the interest of the appellant-writ petitioners in any manner were passed by the authorities by way of compliance of orders of this Court, which according to them were obtained by the respondent nos.5 to 7 by playing upon fraud or in collusing with the authorities the remedy for them was to seek a review of such orders of this Court instead of filing 8 a fresh writ petition for questioning them indirectly. Once this aspect becomes clear to us that the land so distributed during the pendency of the appeal, revision and writ petition filed by the land-holders was subject to the finality to be arrived between the land-holders and State, there would be hardly any issue on this aspect inasmuch as it is the settled principle of law not only under the provisions of the Act but also ensured under Article 300A of the Constitution of India that no person can be divested of his property except in accordance with law. The so called right of the appellant- writ petitioners to retain such land which itself was by way of subject to the final decision to be taken by the superior court. The long and the short answer therefore of the whole grievance of the appellant-writ petitioners would be that if no surplus land was left in the ceiling proceeding of the respondent-land holders 5 to 7, same could not have been retained by the appellant-writ petitioners and to that extent we fully endorse the following finding recorded by the learned single Judge. “ Reading Sections 15(1)(2) and (3) it would be seen that all proceedings to acquire are subject to appeal and revision. Therefore, even with respect to land declared surplus, the acquisition is conditional. Thus, from the provision as envisaged under section 15(1) of the Act, it is clear that notwithstanding declaration of surplus at the first instance only those lands can be acquired/taken over in respect of which the land holder raises no dispute. The rest of the land which has been declared surplus and which is subject to challenge in appeal or revision, a notification of intention to acquire is only to be issued and left, but till the proceedings are finally terminated they cannot be taken over. Here, if we keep this distinction in mind, then we would find that a person, who has been settled lands by way of Parwana gets a right as envisaged by the Apex Court when it in respect of land with regard to which no dispute is there, but the same is not the position with regards to other lands in respect of which appeal/revision is taken up by the land 9 holder. Where a person has been illegally issued Parwana in respect of land, which the State had no authority to take over, such person cannot, in my view, base their right and claim on their illegal acquisition of right. Here, at the first instance, the notification under Section 15(1) was issued on 21.6.1993, the entire proceedings were subject to appeal and revision, which were still to be filed. Undisputedly, these lands were not declared either surrendered by the land holder nor were these lands in respect of which there was no dispute, yet in contravention and in conflict with the provision, as contained in proviso to Section 15(1) of the Act State acted and settlements (Parwana) were issued on or about 9.7.1993 i.e. within fifteen days of the said notification though it is again undisputed that ultimately the Board of Revenue decided the revision in 1995 and the matter was set aside by this High Court and ultimately this High Court held that in fact there was no surplus. Without waiting for the period as prescribed under the Act, the authority distributed the lands, which was impermissible. Therefore, the right, if any, as acquired by the petitioners was illegally acquired, in defiance to the provision of law. If that be so, I do not think that they can claim the right of hearing, for it is well settled that one who seeks equity must show equity. It cannot be said that their right being illegally acquired, now they must be entitled to oppose all proceedings to evict. If the right is illegally acquired it cannot be perfected much less accepted by the Court or authority. This is in my view respectfully distinguishes the case from the judgment cited. The second illegality is that Section 15(1) and Section 15(3) of the Act itself clearly predicate that the notification of acquisition is subject to decision in appeal or revision. If that be so, the rights of the petitioners automatically are subject to the result of appeal or revision. The principle of lis pendis would come into play. If pending litigation, they chose to step in, then if the litigation is decided against them they have no status to continue. It is well settled that subsequent purchaser with notice of litigation is not a necessary party and the purchase or acquisition of right by him is hit by doctrine of lis pendis even in his absence. Thus, on both counts I do not find any merit in this writ application. Once notification declaring surplus is set aside the illegality acquired rights of the petitioners itself collapse and the Parwana (Settlement Order) becomes nonest. ” 10 The reliance placed by learned counsel for the appellant-writ petitioners on the judgment of Baban Paswan (supra) is wholly misconceived inasmuch as the facts of that case was entirely different. In that case 43.26 acres of land was actually declared excess in the family of Prabal Pratap Singh and Dinesh Prasad Singh and after the aforementioned excess land was distributed Pratima Devi being the sister of the land-holders Prabal Pratap Singh and Dinesh Prasad Singh had filed a writ petition claiming herself to be a land-holder and raising the plea that she had not been heard in the matter. In fact, Prabal Pratap Singh and Dinesh Prasad Singh had filed their separate writ petition challenging the order of declaration of their 43.26 acres land as excess land as also distribution in favour of Baban Paswan and another wherein they were made parties and writ petition of the two land-holders was dismissed and even their appeal before the Division Bench of this Court was withdrawn subsequently. It was only thereafter their sister Pratima Devi had filed a separate writ application being C.W.J.C. no.323 of 1999 assailing the correctness of the acquisition of land without impleading the person including Baban Paswan and another, in whose favour distribution of excess land had also been made, as party to the writ petition and when the said writ petition was allowed, by directing exclusion of certain land from ceiling limit of two land holders, namely, Prabal Pratap Singh and Dinesh Prasad Singh, they had filed L.P.A. against the order passed in the case of Pratima Devi which was dismissed whereafter the Apex Court had set aside the judgment passed in the writ petition of Pratima Devi and in the resultant appeal by remitting the matter back to the High Court after impleading Baban Paswan and another. Thus from the aforesaid fact it would be clear that the order passed in that writ 11 application after distribution of land without impleadment of the parcha holder was held to be bad because statement of Pratima Devi had been found to be incorrect and her case of being in possession of land also impermissible in law, in view of the earlier possession given to Parcha holders, Baban Paswan and another. Such however is not the case here in asmuchas appellant-writ petitioners have not assailed the earlier order passed by this Court granting two units in favour of respondent nos.5 and 6 and has only questioned the resultant consequential order which more or less was only by way of implementation of the order of this Court in the two writ petitions filed by the land-holders. We therefore agree with the submission of the learned counsel for the respondents that the remedy for the appellant- writ petitioners in view of the averment made in their connected writ application was to seek review of the order of this Court dated 30.3.1999 in C.W.J.C. no.2839 of 1999. Thus, for the reasons recorded above , we find no merit in this appeal, the same is accordingly dismissed. This order, however, shall not come in the way of the appellant-writ petitioners to seek appropriate remedy as may be available to them in law including filing of a representation before an appropriate authority for allotment of alternative land and we hope and believe that if such a representation is filed by them, the same shall be disposed of expeditiously strictly in accordance with law. Sudip ( T. Meena Kumari, J.) ( Mihir Kumar Jha, J. ) 12