Letters Patent Appeal No.281 Of 2003 MARKANDEY KUMAR PANDEY----------------APPELLANT) VERSUS 1. THE STATE OF BIHAR THROUGH SECRETARY, DEPARTMENT OF REVENEW AND LAND REFORMS, GOVT. OF BIHAR, PATNA. 2. SECRETARY, DEPARTMENT OF REVENEW AND LAND REFORMS, GOVT. OF BIHAR, PATNA. 3. DISTRICT MAGISTRATE, BETTIAH, WEST CHAMPARAN. 4. ADDITIONAL COLLECTOR (CEILING) BETTIAH, WEST CHAMPARAN. ------------RESPONDENTS) For the Appellant: Sandeep Kumar, Adv. M.K. Singh, Adv. Mukesh, Adv. For Respondents: Sri Ajay, Adv. Sri K. Chandra, Adv. ----------- P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH Navin Sinha & D.K. Singh, JJ. I.A. No.2681/10 has been filed for substituting the original appellant who is stated to have deceased on 12.4.2008 by his legal representative. Having heard the parties the I.A. is allowed. No counter affidavit was filed in the writ petition by the respondents. A counter affidavit is stated to have been filed in the present appeal. No such copy is available on record. This Court therefore requested the learned counsel for the State to make available his copy, stated to have been filed, for perusal. Learned counsel for the appellant submits that 2 no copy of the counter affidavit has been served on him. The respondents are unable to produce any acknowledgement of service on part of the appellant. Nonetheless, this Court considers it proper to look into the counter affidavit alleged to have been filed also. The challenge in the writ application was to the re-opening of the land ceiling proceedings under Section-45B for a third time. When notice was issued to the appellant on the third occasion for re-opening of the proceedings he filed his reply in which he took a specific objection that the proceedings had been re-opened under Section-45B as Land Ceiling Case No.49/75-76 and closed on 4.7.1982. Proceedings under Section-45B was initiated again under the same case number which came to be closed on 4.7.1989. The final order dated 29.11.2002 does not consider or discuss the earlier two orders dropping the proceedings, except for a vague recital that the area of the lands concerned earlier and presently were not the same. Based on a verification report it concludes that there was a serious possibility of a further lands for acquisition. Assailing the order learned counsel submits that it was short and cryptic in nature. There was discussion of the reasons for closure on the earlier two occasions of proceedings under Section- 45B of the Act, 3 and what had transpired new, not available or known earlier, to justify reopening on a third occasion, if it be so permissible. He strongly relied upon a further judgement of this Court reported in 1987 P.L.J.R. 154 (Praveen Shanker Singh and others Versus The State of Bihar and others) more particularly paragraph Nos.16 and 7 of the same which read as follows:- “16. Although it does not appear to be possible to exhaustively lay down all the circumstances under which power can be exercised, it can be safely said that it ought not to be invoked lightly. The consequences of such exercise may lead to serious civil consequences and the affected parties must, therefore, be given a chance to be heard before taking a decision to reopen the proceedings. Further, the length of time after which the closed matters are sought to be re-examined should be taken into account; longer the period, stronger should be the ground.” “17. Now the question as to whether the authority can decide to reopen the proceeding on a re-consideration of the materials which had earlier been considered. In my view, it is not permissible to do so and this interpretation of the section would be consistent with the age old principles mentioned above and would be reasonable, just and consistent with fair play. It will save not only the land-holder but also the State from a perpetual threat of uncertainty and consequent harassment; for, it is a power which the land-holder may also invite to be exercised in his favour and not only once but repeatedly. If the section is construed in its widest amplitude implying unbriddled and unlimited power, the Collector when asked by an aggrieved land- holder to exercise the same, cannot, without applying his mind, refuse to entertain the prayer as that would amount to abdication of power. I, therefore, hold that if the material on the records of a case taken into consideration by the authorities concerned and a conclusion is reached which becomes final (on appeal and revision or in absence thereof), its finality has to 4 be respected and the proceeding cannot be reopened for giving a second thought. If, however, any material or matter has been omitted from consideration which may be so substantial as to lead to a different conclusion, the power under the section may be exercised. As the observations of Mr. Justice B.P. Jha in paragraph-7 of the judgment in Yamuna Rai v. The State of Bihar (supra) are consistent with this view, I hold that the case was correctly decided.” The power to reopen a closed land ceiling under Section-45B has to be read reasonably as a one time exercise normally speaking unless exceptional circumstances surface such as fraud, concealment etc. which must find full consideration and be reflected in any impugned order seeking to reopen proceedings closed earlier not once but twice. The counter affidavit which seeks to explain the impugned order, if it be so permissible, is of no help to the respondents as it travels no further than the impugned order in not appropriately dealing and discussing the earlier dropping of the proceedings except for acknowledging the same as fact. Learned counsel for the State strenuously urged that further lands had surfaced in possession of the appellant to justify fresh proceedings, but fairly acknowledged that the impugned order contained no discussion with regard to the earlier two orders dropping the proceedings to display complete application of mind to 5 all attending facts and circumstances. The order refuses to take into consideration relevant materials with regard to the earlier dropping of the proceedings raised by the appellant in his objection which per se renders the order arbitrary. Learned counsel for the State lastly sought to persuade us to remand the matter for passing of fresh orders in accordance with law. In view of the observations of the Full Bench in the two paragraphs, as noticed above, we are not persuaded to do so. The impugned order under appeal dated 29.11.2002 and the judgement under appeal are both set aside. The appeal stands allowed. Patna High Court/ Dated: 22nd of April, 2010/ N.A.F.R./KC (Navin Sinha, J.) (Dinesh Kumar Singh, J.)