IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4651 of 2005 NAND KUMAR SINGH, SON OF LATE SURENDRA PRASAD SINGH, RESIDENT OF VILLAGE- KUDRA, P.S. KUDRA, DISTRICT-KAIMUR …PETITIONER Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR OF KAIMUR AT BHABHUA, DISTRICT KAIMUR, BHABUA 3. THE DEPUTY COLLECTOR LAND REVENUE AT BHABHUA DISTRICT KAIMUR 4. ADDITIONAL COLLECTOR, DISTRICT KAIMUR BHABHUA 5. S.D.O. BHABHUA, DISTRICT KAIMUR, BHABHUA 6. ANCHALADHIKARI, KUDRA, SUBDIVISIONAL MOHANIA, DISTRCIT KAIMUR, BHABHUA …RESPONDENTS For the petitioner :Mr. A.K.Sinha & :Mr. Sanjay Kumar Manu For the State :Mr. Rajeev Kr. Singh,G.P.15 & :Mrs. Sunita Kumari, AC to GP 15 ----------- 07. 30.03.2011 Heard learned counsel for the petitioner and the State. The order passed by the Collector, Kaimur at Bhabua on 8.2.2005 in Ceiling Case No.290/75-76 (The State of Bihar Vs. Surendra Prasad Singh) is under challenge. Background facts leading to the present application may be stated briefly:- Father of the petitioner namely, Surendra Prasad Singh was proceeded against in terms of the provisions contained under Bihar Land 2 Reforms (Fixation of Ceiling Area and Acquisition of Surplus land) Act, 1961 ( for short the „Act‟) for acquisition of surplus land(s) in his possession. According to the writ petitioner the said proceeding concluded on 16.3.1989 whereby nothing was found surplus in the hands of the land-holder. It appears that the matter was reopened by the respondents in terms of provisions contained in Section 45B of the Act. Such order was passed by the Collector after notice to the petitioner/original land holder on 6.10.1997 in Misc. Case No. 2 of 1997-98. No issue was raised by the land holder/petitioner against the said order. Let it be recorded at this stage that the original land holder (father of the petitioner) died in the meanwhile. At the time of reopening of the proceeding notices were issued to the land holder (father of the petitioner). From the pleadings made in paragraph nos. 9 and 10 of the counter affidavit filed on behalf of respondent nos. 2 to 6, it appears that the writ petitioner on receipt of notice appeared in the said proceeding and contested the same on merit. It was not brought to the notice of the Court that the original land holder (father of the petitioner) had died. Accordingly the matter proceeded and after consideration of the materials on record respondent 3 Collector by order impugned rejected the claim of the petitioner for one additional unit to him being son of original land-holder and major on 9.9.70. Accordingly, the land holder was found entitled to only one ceiling unit and was allowed to hold 30 acres of class III lands. Learned counsel for the petitioner submits that the order impugned is void ab initio or nullity in the eye of law as the same was passed against a dead person. Reliance in this regard has been placed on judgment of the Supreme Court rendered in the case of Kamal Krishna Rastogi vs. State of Bihar since reported in 2009(1) (SC) 1(para 8 to 11). It is next contended that reasonings assigned for not allowing the additional unit to the writ petitioner being the eldest son of the landholder are not in accordance with law or the provision contained under the Act. Reliance in this regard has been placed on a judgment rendered in the case of Md. Shakoor Mian vs. Raj Mangal Mishra and ors. since reported in 2000(2) BLJ 325. Learned counsel appearing on behalf of the State, on the other hand submits that the notice was duly issued to the landholder after re-opening of the proceeding as would appear from Annexure-4 dated 15.11.97. Pursuant thereto the writ petitioner appeared and contested the case. The death of the original landholder was not brought to the notice of 4 the court by filing any affidavit/application. The writ petitioner having contested the matter on merit cannot be allowed to raise the grievance that the same was passed against a dead person. It is next contended that admittedly the proceeding was re- opened by an order dated 10.10.97, passed in Misc. Ceiling case No. 9/97. The said order re-opening the proceeding is not on record nor any relevant pleading in this regard has been made in the writ petition. It is contended that the factual situation in which the case of Shakur Mian (supra) was decided by the Supreme Court are quite different and distinct. It is submitted that the reasoning(s) assigned by the Respondent-Collector for not placing reliance on the documents placed in support of the claim of the writ petitioner of being major on 9.9.1970 and thus entitled to one separate ceiling unit cannot be said to be perverse. Learned G.P. placed the reasonings assigned in the impugned order in order to show that the court being a quasi judicial authority has to be convinced from the materials on record that they are worth reliance. I have considered the submissions advanced on behalf of the petitioner and the State. This Court proposes to deal with the 5 submissions of the petitioner that order dated 08.02.2005 (Annexure-1) is void ab initio having been passed against the dead person. Relevant facts in this regard need to be set out for better appreciation. On an application preferred by the State-Respondents Misc. Ceiling Case No. 9/97 was initiated for re-opening of the proceeding in terms of section 45(B) of the Act. According to the petitioner, original landholder (Surendra Prasad Singh) died on 03.11.1990. The proceeding was re-opened by order dated 06.10.1997, passed in the said Misc. Ceiling case No. 9/97. The order re-opening the proceeding and relevant pleadings with regard to notice to the landholder before passing of the said order is not on record. After re-opening of the proceeding, the authority issued notice to the landholder on 15.11.1997(Annexure-4). In pursuance of the said notice, the writ petitioner appeared in the said proceeding. There is nothing on record to show that the factum of death of the original landholder was brought to the notice of the authority in seisin of the matter by filing any application/affidavit. He contested his claim on merit. In the case referred to by counsel for the petitioner the notice was issued in the proceeding under section 45(B) of the Act to 6 the original landholder. The landholder appeared in the said proceeding and made an application seeking adjournment and thereafter did not appear thereafter. Subsequently he died. The legal representatives were neither substituted nor any notice was sent to the heirs and legal representatives of the landholder as a result whereof the legal heirs of the original landholder(since deceased) did not appear in the proceeding. In the present case, after reopening of the proceeding, notice was duly issued to the landholder on 15.11.1997 (Annexure-4). In pursuance whereof the writ petitioner representing the interest of the original landholder appeared in the proceeding and made a claim for additional unit for himself. In support of his claim, he filed documents to demonstrate that on 9.9.1970 he was major. The documents placed before the court were considered and found not convincing/cogent enough to place reliance thereon. It is better to quote some portions of the order where relevant consideration has been made. The same reads as under: “for the purpose of analyzing the materials on record, evidences referred to on point of age of Nand Kumar Singh are as follows:- 1. Horoscope 2. School transfer certificate of primary school, 7 Jehanabad 3. A sada copy of electoral roll 4. Affidavits of Surendra Prasad Singh and Ajodhaya Nath Pathak 5. Medical report of Civil Surgeon of District Rohtas dated 25-09-1975 relating to the age of Nand Kumar Singh. 6. X-ray plates along with the opinion of Civil Surgeon- cum-CMO, District Rohtas dated 09-12-1976. As regard horoscope of Nand Kumar Singh, it is self serving document and its maker has not been examined though he is not said to be dead. So the horoscope can not be looked into for any purpose what so ever. The transfer certificate of Primary School, Jehanabad has also not been proved. It also does not satisfy the requirements of section 35 of Indian Evidence Act. There is also no reliable evidence on record to sow that the date of birth was recorded in the school register on the basis of statement of any responsible person. In actual life it often happens that the persons give false age to make some advantage as appears to be happened in this case. A sada copy of electoral roll has been filed through the certified copy of the same ought to have been filed by the land holder. A sada copy of electoral roll filed by the land holder does not serve the purpose of the land holder. A sada copy of electoral roll can not be relied upon to proof the age of Nand Kumar Singh. The affidavit sworn in By Surendra Prasad Singh has also got no bearing whatsoever. The medical report dated 25- 8 09-75 has been issued by Dr. R.M. Sinha the Civil Surgeon. Rohtas estimating the age of Nand Kumar Singh as 24 years old on 25-09-75. But Dr. R.M.Sinha has not been examined in this case. The medical report has been also not proved by any one in the manner prescribed. No medical board was constituted before issuing the said medical certificate. The opinion is also not based on any reasonable date. The opinion appears to based only on an affidavit filed before him. So it is worthless. X-ray plates along with the opinion of Civil Surgeon-cum- CMO, Rohtas dated 09—12-76 has been also brought on the record to prove the age of Nand Kumar Singh. On perusal it appears that the opinion of the Civil Surgeon-cum-CMO, Rohtas dated 09-12-76 has not been signed by the Civil Surgeon-cum- CMO, Rohtas or by any doctor. No doctor has been examined to prove the said opinion dated 09- 12-76. So it is also worthless. Mere production of document does not fulfill the requirement unless it is proved by evidence of a person who can vouchsafe for the truths of the facts in issue. In this case the documents mentioned above have not been proved by the land holder in the manner prescribed nor any doctor has been examined in this case.” As per the provision contained in section 33 of the Act, the proceeding before the authority is a quasi judicial proceeding. True it is that the court/authority under the Act is not bound by strict 9 principles of pleadings or rule of evidence but nonetheless the court has to consider the reliability and authenticity of documents on which reliance has been placed. I am conscious of the fact that such submission(s) was/were being advanced at least three decades after the appointed day and were being considered by the court. In my view, the reasonings assigned by the Respondent-Collector in the impugned order for not placing reliance on the documents/materials placed on behalf of the writ petitioner claiming additional ceiling unit for himself cannot be said to be unreasonable and/or perverse. This court, therefore, finds no substance in submissions of the petitioner that the reasonings assigned by the respondent concerned in the impugned order for not accepting the documents placed on his behalf are perverse and/or contrary to the provision of the Act. Adverting to the next submission of the petitioner that the order has been passed against a dead person, this Court from the materials on record finds that the order reopening of the proceeding was passed on 06.10.1997 which is not under challenge. This Court is not in a position to decipher from the materials on record as to whether 10 notice was issued either to the landholder or on his behalf and any such factum was brought to the notice of the authority. This much is clear and evident that the order dated 06.10.1997 reopening the proceeding has not been called in question before any court by instituting appropriate proceeding. In other words, the said order has become final. It further appears that by the impugned order the previous order allowing one unit to the original landholder has not been touched and/or interfered with. In other words no order adverse to the interest of the original landholder has been passed. An issue was raised on behalf of the petitioner claiming additional ceiling unit for himself which was considered and rejected for the reasons assigned therein. I have already found that the reasonings assigned by the Respondent-Collector in the impugned order for not placing reliance on the materials/evidence brought on behalf of the petitioner are not perverse and/or contrary to the provisions of the Act. Accordingly, I do not find any merit in this writ application meriting invocation of writ jurisdiction of this Court. This Court, however, clarifies that the family of the landholder in view of discussions made 11 hereinabove as also the findings recorded in the impugned order shall be allowed to hold 30 acres of class III lands which was allowed in favour of the original landholder. The application stands disposed of. Anand Kr./Hr ( Kishore K. Mandal )