IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10222 of 2009 1. SAKAL PASWAN @ SAKAL DUSADH SON OF MOTI PASWAN 2. MUNESHWAR PASI SON OF LATE MANBAHAL PASI 3. RADHESHYAM PASWAN SON OF NITHALU PASWAN 4. BIRENDRA PASWAN SON OF MOTI PASWAN 5. MOTI PASWAN SONOF LATE SHEO BACHAN PASWAN 6. HANSLAL RAM SON OF LATE KHEDU RAM 7. BHARAT RAM SON OF LATE HARGUN RAM 8. NITHALU PASWAN SON OF LATE BALROOP PASWAN 9. SHOBHANATH PASI SON OF MALAI CHAUDHARY 10.SHANKAR RAM SON OF INDRADEO RAM 11.SIYA RAM PASI SON OF LATE MOTI PASI 12. AMAWAS YADAV SON OF LATE GANGA YADAV ALL RESIDENT OF VILLAGE GHARI, P.S. KUDRA, BHADOULA, DISTT.KAIMUR, BHABUA 13.RAJENDRA PD. YADAV SON OF LATE SHEOPUJAN YADAV 14. INDRAMANI DEVI WIFE OF SHEOPUJAN SINGH YADAV 15. RAJ KUMAR YADAV, SON OF LATE BANSROPAN YADAV 16. RAMJEE YADAV SON OF DEO RAJ ALL RESIDENT OF VILLAGE AMIYAWAR, P.S. KUDRA, P.O. BHADAULA, DISTT. KAIMUR(BHABHUA) 17. KAILASH BIND SON OF LATE SHOBHI BIND 18. SHEO MURAT YADAV SON OF NOT KNOWN 19. SITA YADAV SON OF SAKAL DEEP YADAV 20. SAKALDEEP YADAV SON OF LATE BIRODHI YADAV 21. RAM CHANDRA YADAV SON OF LATE BIRODHI YADAV 22. YASODA DEVI WIFE OF CHANDRADEO SINGH 23. RAM ADHAR YADAV SON OF DEORAJ YADAV 24. RAMRAJ YADAV SON OF LATE HARI YADAV ALL RESIDENT OF VILLAGE AMIYAWAR, P.S. KUDRA, P.O. BHADAULA, DISTT. KAIMUR(BHABHUA) ………Petitioners Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR, KAIMURAT BHABHUA 3. THE ADDITIONAL COLLECTOR, KAIMUR AT BHABHUA 4. THE SUB DIVISIONAL OFFICER, BHABHUA, DISTT. KAIMUR 5. THE ANCHALA ADHIKARI, KUDRA, DISTT. KAIMUR(BHABHUA) ………Respondents 1st set 6. RAMESHWAR PRASAD SINGH 7. VIJAY NARAYAN SINGH BOTH SONS OF LATE JAGDISH SINGH, RESIDENT OF VILLAGE- GHARI, P.O. BHADOULA, P.S. KUDRA, DISTRICT KAIMUR(BHABHUA) ……Respondents 2nd set For the petitioners : M/s Achhaibar Singh, Praveen Kumar Singh For Respondent 6 & 7: Mr. Kamal Nayan Choubey, Sr. Advocate Mr. Arbind Nath Pandey, Advocate For the State : Learned S.C.4(Ceiling) 2 O r d e r 7 30.11.2009 The petitioners, who are parcha holders under section 27 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter referred to as „the Ceiling Act‟) and Rule 44 of the Bihar Land Ceiling Rules, 1963, pray for quashing the notice dated 10.11.2008 purported to have been issued by the Anchal Adhikari, Kudra, Kaimur whereby the petitioners have been directed to vacate the land settled with them in the year 1984-85. A land ceiling case no.78/84 was started against the land holders Rameshwar Prasad and others. Initially only two units were granted to his family on 16.6.1976 by the S.D.O., Bhabhua. They filed an appeal against the aforesaid order which too was dismissed on 13.8.1994. Thereafter, land holders filed revision before the Member, Board of Revenue being Revision Case No.510 of 1985. The Member, Board of Revenue by order dated 8.1.1987 remanded the matter to the Collector, Kaimur, Bhabua. On remand, this case was registered as Misc.Case No.78 of 2007-08 arising out of Land Ceiling Case No.78/84. The Additional Collector, Kaimur by his order dated 11.7.2008 allowed an additional unit and dropped the proceeding stating that there is no surplus land in the family of land holder and direction to make zero gazette publication. Accordingly a notification no.92 dated 25.7.2008 was published in the District Gazette. The petitioners state that they came to know about 3 the exparte order dated 25.7.2008 and the draft publication under section 11(1) of the Ceiling Act, when they received impugned notices to surrender their red cards. As such they filed a revision before the learned Member, Board of Revenue being Revision Case No.2 of 2008 against order of the Additional Collector, Bhabhua. The case was transferred to the file of Shri Amit Pal, learned Additional Member Board of Revenue, who vide his order dated 23.6.2009 dismissed the revision inter alia on the ground that same was time barred and earlier and the petitioners were not parties at any stage. Consequently the Anchal Adhikari, Kaimur had issued notices to vacate the land settled with them in the year 1984-85, as the land which was declared surplus and allotted to them was later altered and modified in appeal and revision holding that land holder did not have any surplus land. The petitioners state that they had acquired valuable rights over the land as the same was settled with them 23 years ago and are paying rent receipt. They state that over the years they had constructed houses and have been living in them. The Appellate authority, the Additional Collector, Kaimur ought to have held that as land has been settled 23 years back with them, they ought not to be divested at this stage without providing hearing. The petitioners state that only after publication under section 15(1) of the Ceiling Act in the official gazette of district on 1.1.1985, the Parcha was distributed of the surplus land on 10.2.1985 and 20.4.1985, after expiry of mandatory period of 4 appeal as contained in section 30 of the Land Ceiling Act. Counsel for the petitioners in support of their contention has relied upon decisions of the Hon‟ble Apex Court in the case of Dadan Ram & Ors vs State of Bihar & Ors, reported in 2008(1) P.L.J.R. SC 215, and Baban Paswan and another Vs Pratima Devi & Ors, reported in (2003) 10 SCC 239. In the case of Dadan Ram(supra), the Apex Court held that before reopening of the case for fresh disposal under section 45(b) of the Act, notice and opportunity of hearing should be provided to the Parcha holders. The Apex Court further observed that proceeding under the amended section is a quasi judicial and right to get opportunity of hearing is mandatory and cannot be denied in such proceeding. The Apex Court further observed that power to reopen has to be exercised sparingly and for adequate reasons. The proceedings concluded earlier cannot be reopened merely for verification whether the orders were correctly passed or not. In the case of Baban Ram (supra) about 43.266 acres of land belonging to the family of respondent nos.7 and 8 was declared surplus. Some of such surplus lands were allotted to the appellants in 1985. Respondent no.1, the sister of respondent nos.7 and 8 filed a writ in 1999 that she has a vital interest in the land under the ceiling case, which was determined and decided without giving opportunity to be heard. She did not implead the settlee of surplus land who was the appellants before the Apex Court. The learned Single Judge of High Court allowed the writ 5 petition and directed that the lands claimed by respondent no.1 be excluded from the ceiling limit of respondent nos.7 and 8. A L.P.A. preferred by the appellants was also dismissed. The Apex Court allowed the appeal and remanded the matter to the High Court for fresh disposal of the writ application. The Apex Court noticed that the appellants have been put in possession of the surplus lands way back in 1985, they would have right to substantiate that allotment has rightly been made in their favour and the area was rightly held to be surplus. The respondent nos.6 and 7 have entered appearance and filed a counter affidavit. They state that no right has accrued to the petitioners on the basis of issuance of red card pending appeal and revision provided under sections 30 and 32 of the Ceiling Act. They state that only after an appeal or revision under sections 30 and 32 is disposed of, the Collector may make such alteration in the draft statement as may be necessary to give effect to any order passed on appeal or revision. According to them, no land ought to be acquired as surplus land under section 15(1) and 15(2) of the Ceiling Act till the disposal of appeal and revision. In any view of the matter, during the pendency of appeal or revision, the State would be only custodia legis and any distribution of alleged surplus land would be subject to result in appeal and revision. They state that though right to property has been taken out from the purview of fundamental right, Article 300A of the Constitution provides that no person shall be deprived of his 6 property except by procedure established by law. In other words, if due procedure is not followed such act would be both illegal and unconstitutional. In support of his contention, he has relied upon a Division Bench decision of this court in the case of Haricharan Chamar & ors Vs Kapilmuni Ojha & Ors, reported in 2008(2) P.L.J.R. 495. In the aforesaid case learned Judge after referring to various decisions namely (i) 1975 BBCJ 667(paras 11 and 14); (Mahanth Daya Ram Das & Ors Vs The State of Bihar & Ors), (ii) A.I.R. 1995 SC page 10 (paras 23 and 24);(Sh.Dewan Chand Bhalla Vs Ashok Kumar Bhoil); (iii) 2002(4) P.L.J.R. 622 (paras 11); (Upendra Paswan Vs The State of Bihar & Ors) has held in paragraph 10 as follows: “10……….. Law is well settled that once the land has been declared surplus and the requisite notification in terms of section 15(1) of the act has been issued the lands shall vest in the State Government and remains custodia legis. The respondent authorities cannot distribute the lands until all prospects of litigation up to the Supreme Court come to an end” The Division Bench further held that law is equally well settled that in case of doubt or difficulty enforcing the provisions of the Act, the Court shall lean in favour of the land holder because they are being deprived of their property to which they had valid title. The issues involved in this writ petition are as follows: 7 (i) Whether the notices issued by the Anchal Adhikari to surrender the red card settling surplus land in favour of the petitioners are sustainable in the eyes of law? (ii) Whether the land holder who is respondent nos.6 and 7 would be entitled for resuming their land, as in appeal and revision the same has not been found to be surplus under the provisions of the Act? (iii) Whether the petitioners would be having a right of hearing and as to what relief the petitioners would be entitled? The Ceiling Act, 1961 was enacted to provide for fixation of ceiling and acquisition of surplus land and its distribution among the have-nots and down trodden. The primary aim of the legislature was to facilitate personal cultivation of land by certain classes of raiyat and to allow under raiyats to acquire the status of raiyats. At the same time, the Act ensured that the land holder can retain reasonable area of land for himself and family as provided in the Act. Section 10 provides for preparation of draft statement, the area and description of land which is in excess of the limit permissible under section 5 and which the land holder is not entitled to hold or retain under this Act. Sub section (3) of Section 10 provides that any objection to the draft statement should be received within 30 days of the 8 publication which would be disposed of by the Collector after providing due opportunity of hearing. Once the objection under sub-section (3) of section 10 and the consequent appeal and revision, if any, is disposed of, the Collector shall subject to provisions of sub-section (5) of section 15(a), make such alteration in the draft as to give effect to any order passed on the objection or on appeal or revision and shall cause the said statement with alteration, if any, to be finally published. The section further provides that copy of such statement would be duly certified by the Collector and given to the land holder. Thus section 10(3) provides that final publication of draft statement should be made only after disposal of appeal and revision. Section 15 provides for acquisition of surplus land. It states that only after final publication of the statement in sub-section(1) of section 15, the surplus land is to be acquired by due publication of notification that land is required for public purpose in the official gazette. Sub section (2) of section 15 provides that on publication of such notification under section 15(1), the land specified in notification shall subject to the provisions of the Act be deemed to have been acquired. Sub-section (3) of section 15 provides that any person claiming interest in the land may within 30 days of such publication file a claim before the Collector. From perusal of the aforesaid provisions, it would be evident that the intent of the legislature is that only after disposal of any appeal or revision against draft publication of statement 9 under section 10(2), the final notification under section 11(1) should be published. Only thereafter the land would be acquired as surplus land, if any, under section 15(1) and 15(2) of the Act. However, this legislative mandate is observed in more in breach then in compliance. It is common notice that even during the pedency of appeal and revision; final notification under section 11(1), notification of acquisition of surplus land under section 15(1) and then distribution of the same under section 27 of the Act, takes place. It would appear from section 11(1) that the final publication would be subject to right of appeal and revision. In other words, only after disposal of appeal and revision under the Act, it is found that the land holder holds land in excess of the ceiling area, the same could be acquired under section 15(1) and distributed under section 27 read with Rule 44 of the Land Ceiling rules. In case if the land has been acquired by the government under section 15 of the Act, pending any appeal and revision, former would be holding such land as custodia legis. Such land in any case should not be distributed till the disposal of appeal or revision. Any settlement of such land under section 27 of the Act though not warranted can at best be only conditional and contingent depending upon result of appeal and revision under the Act. Such settlee would be holding land at their own risk. If the land holders ultimately succeed in revision or appeal, it would be entitled to resumption of the land, as no person can be deprived of his property except in accordance with law. 10 Thus this court holds that the land holder would be entitled to resumption of land if in revision and appeal it is found that the land holder did not hold any surplus land. The issue nos. 2 and 3 are taken up together as they are inter related. The matter whether the settlees would be entitled to hearing or not has already been settled by the Hon‟ble Apex Court in the case of Dadan Ram(Supra) and Baban Paswan(Supra). As such this court heard the petitioners in detail. The petitioners in the writ petition has no where stated that courts have wrongly held that the land holders did not hold any surplus land. The petitioners have not refuted that the land holder would not be entitled to the land which they claimed and allowed by the Additional Collector, Kaimur on remand by the learned Member, Board of Revenue. However, their main claim is that they are in possession of the land over last 25 years and have constructed houses and are living in it and thus has acquired vested right. Respondent nos.6 and 7, however, controverted the aforesaid claim and had annexed rent receipts, land possession certificate, receipt of electrical bill, receipts of payment canal water tax, contained in Annexure-D series to the counter affidavit to state that there was only paper transaction and the petitioners did not get any effective possession. The claim of the petitioners that they have acquired vested right is devoid of any merit. The land acquired by the Government under section 15(1)(2) was subject to decision in appeal and revision. As such land which has been settled under 11 KHAN A.F.R. section 27 so acquired under section 15(1)(2) would be conditional and subject to result in appeal and revision as the petitioners have failed to substantiate much less plead in main writ application that the units have been wrongly allotted to land holders, they have no claim to cling to the land. In backdrop of aforementioned discussions, I do not find that the petitioners have made any case for quashing the impugned order. The State has settled the land with the petitioners without waiting for disposal of appeal or revision. The petitioners claim to be living in the premises for 25 years. As such I direct the State through the Collector to provide an alternative settlement to the petitioners at the earliest preferably within three months from the date of receipt/production of a copy of this order. The authorities, however, would allow three months time to the settlees to surrender red cards and vacate the premises. The petitioners must surrender the red cards and vacate the premises after expiry of aforesaid period without any pre-conditions. With the aforesaid observations and directions, this writ petition stands disposed of. (Samarendra Pratap Singh,J)