CIVIL WRIT JURISDICTION CASE No.12119 OF 1998 In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------- Kailash Prasad Singh, son of late Saryug Prasad Singh, resident of village – Sihkund, P.O. Lokmanpur, Police Station – Kharik Bazar, District- Bhagalpur. ---------------------- Petitioner Versus 1. The State of Bihar 2. The Collector, Bhagalpur. 3. The Additional Collector, (Ceiling), Bhagalpur. 4. The Deputy Collector, Land Reforms, Naugachhia, District- Bhagalpur. 5. The Circle Officer, Naugachhia, District – Bhagalpur. ---------------- Respondents -- (Ist set) 6. Bhola Devi, daughter of late Dasrath Prasad Singh, and wife of Shri Tulanand Singh, resident of Village – Sihkund, P.O. Lokmanpur, P.S. Kharik Bazar, District – Bhagalpur. 7. Shashikala Devi, daughter of late Dasrath Prasad Singh and wife of Shri Gajendra Narain Singh, resident of Village – Sihkund, P.O. Lokmanpur, P.S. Kharik Bazar, District – Bhagalpur, presently residing at Village – Laxmipur, P.S. Uda Kishunganj, District – Madhepura. 8. Hemlata Devi, daughter of late Dasrath Prasad Singh, and wife of Shri Mahendra Narain Singh, presently residing at Gulani, Kusaha, Police Station – Shambhuganj, District – Banka. 9. Jyotish Prasad Singh 10.Jawahar Prasad Singh 11.Bijoy Shankar All sons of late Ram Krishna Prasad Singh, resident of village – Sihkund, P.O. Lokmanpur, P.S. Kharik Bazar, District – Bhagalpur. 12.Shukdeo Prasad Singh, son of late Udit Narain Singh, resident of - 2 - village - Sihkund, P.O. Lokmanpur, P.S. Kharik Bazar, District – Bhagalpur. -------- Respondents---(2nd set) 13.Sakhichand Dome, son of Peru Dome. 14.Aman Devi, wife of Sakhichand Dome. 15.Munna Dome, son of Peru Dome. 16.Puliya Devi, wife of Munna Dome. 17.Jhingo Rajak, son of Chhedi Rajak. 18.Mira Devi, wife of Jhingo Rajak. 19.Kartik Rajak, son of Chhedi Rajak. 20.Soko Devi, wife of Kartik Rajak. 21.Bishundeo Rajak, son of Mint Lal Rajak. 22.Sushila Devi, wife of Bishundeo Rajak. 23.Phulo Rajak, son of Mintlal Rajak. 24.Shakuni Devi, wife of Phulo Rajak. Above named respondent Nos. 13 to 24 are residents of village - Sihkund, P.O. Lokmanpur, P.S. Kharik Bazar, District – Bhagalpur. 25.chhatish Paswan, son of Sakhichand Paswan. 26.Kamli Devi, wife of Chhatish Paswan. 27.Gainu Das, son of Chulahai Das. 28.Sahuniya Devi, wife of Gainu Das. 29.Ruwa Devi, wife of Darogi Harizan. 30.Mangal Harizan, son of Chulahi Harizan. 31.Naresh Harizan, son of Muneshwar Harizan. 32.Paroli Devi, wife of Naresh Harizan. 33.Suva Devi, wife of Ganori Harizan. 34.Jagdish Harizan, son of Baldoe Harizan. 35.Parmila Devi, wife of Jagdish Harizan. 36.Sipahi Harizan, son of Saudagar Harizan. 37.Suva Devi, wife of Ganouri Harizan. 38.Gulni Devi, wife of Thakur Harizan. 39.Bhagwat Dome, son of Pairu Dome. 40.Bilakshani Devi, wife of Bhagwat Dome. 41.Bishundeo Harizan, son of Parmeshwari Harizan. - 3 - A K Tripathi,J. 42.Deoki Devi, wife of Bishundeo Harizan. 43.Kari Devi, wife of late Sahdeo Hrizan. 44.Teni Harizan, son of Cuku Hrizan. 45.Enami Devi, wife of Culhi Harizan. 46.Sonelal Harizan, son of Madhu Das. 47.Kamli Devi, wife of Sonelal Harizan. 48.Sitaram Harizan, son of Jatru Harizan. 49.Tolina Devi, wife of Sitaram Harizan. 50.Fulo Das, son of Mandal Das. 51.Mira Devi, wife of Fulo Das. 52.Pramod Harizan, son of Somlal Harizan. 53.Nirmala Devi, wife of Pramod Harizan. Respondent nos. 25 to 53 are the residents of Village + P.O. Lakmanpur, P S – Kharik Bazar, District – Bhagalpur ------------ Respondents ----(3rd set) For the petitioner : M/S, Kamal Narayan Choubey, Sr. Advocate and Ranjit Kumar Singh. For the State : Mrs. Kumari Amrita, S C (Ceiling). For respondents no.9 to 12 : M/s. Hare Krishna Kumar & Sidhendra Narayan Singh. P R E S E N T THE HON`BLE MR. JUSTICE AJAY KUMAR TRIPATHI Annexure-2 dated 31.8.1998, an order passed by the Collector under section 37 of the Ceiling Act is the bone of contention in the present writ application. Petitioner wants quashing of the same for the reasons indicated in later part of the order. 2. According to the assertions made in the writ application the joint family property of one Udit Narayan Singh was partitioned vide Suit No. 12 of 1955 and the petitioner came in separate exclusive - 4 - possession of certain property along with his four sons. Details of the genealogical table has been furnished in para 7 of the writ application. Separate Jamabandi came to be opened in the names of the five land holders and rent receipts etc. came to be acquired thereafter. 3. A land ceiling case bearing Case No. 662 of 1976 was initiated against one of the sons of Udit Narayan Singh namely, Sukhdeo Prasad Singh. A similar land acquisition proceeding being L. C. Case No. 8 of 1978 was initiated against another son of Udit Narayan Singh namely, Ram Krishna Singh alias Ram Krishna Prasad Singh. In the said proceeding notices came to be issued to the petitioner and one Dasrath Singh, the second surviving son of Udi Narayan Singh. An order came to be passed in the ceiling case No. 8 of 1978 and some land was held to be in excess by the petitioner and the said Ram Krishna Prasad Singh. 4. Certain other developments also took place which are not noticed except that at the level of learned Additional Collector. Petitioner was found to have held 5.69 ¾ acres of surplus land after allowing 1 unit of Class IV land. The order in question is dated 7.10.1980 and is annexed as Annexure-6 to the writ application. Annexure-6 was challenged by the petitioner in an appeal before the Collector but the said appeal was dismissed vide order dated 10.3.1981, Annexure-7 to the writ application. Revision application before the Board of Revenue was moved against annexure-7 who remitted the matter back to the Additional Collector to decide the - 5 - matter afresh in terms of section 32 B as inserted by Bihar Ordinance No.202 of 1981 and 22 of 1982. The question of classification of land was also ordered to be looked into. 5. After the order of remand a fresh draft statement under section 10(2) of the Ceiling Act came to be published but this, according to the petitioner, included the entire land possessed by the father of the petitioner namely, Udit Narayan Singh and an objection under section 10(3) of the Ceiling Act was filed by the petitioner and Ram Krishna Prasad on the ground that in terms of the earlier partition suit No. 12 of 1955 there was separate Jamabandi and possession by the family members. 6. The learned Additional Collector on reappraisal of the matter passed an order dated 22.7.1983. He accepted the legality of the partition but ordered that the separate and exclusive land of Dasarath Prasad Singh be clubbed equally with the Jamabandi of the petitioner and other land holders namely, Ram Krishna Prasad Singh and Sukhdeo Prasad Singh. The entire land of the petitioner was declared surplus and final publication under section 11 (1) of the Ceiling Act was ordered to be published. The order in question is annexure-9 to the writ application and the gazette publication is annexure-10. 7. Annexure-9 dated 22.7.1983 came to be challenged in Ceiling Appeal No. 195 of 1983-84 before the Collector, Bhagalpur but the same was summarily rejected vide order dated 20.5.1987 on the ground of limitation. The petitioner challenged the same by - 6 - invoking the revisional jurisdiction of the Board of Revenue but the Additional Member, Board of Revenue rejected the revision application vide annexure-12. 8. The order passed by the Collector in appeal (Annexure-11) and the revisional order (Annexure-12) came to be challenged in the writ application namely, C.W.J.C. No. 5687 of 1987 but the same stood withdrawn with liberty to move the land reforms tribunal. In addition to that, an application under section 45B of the Ceiling Act was also moved by the petitioners of the case but the same was rejected vide order dated 16.3.1989. 9. Petitioner along with Ram Krishna Prasad Singh and others filed CWJC No. 3969 of 1989 challenging the appellate as well as revisional order but vide annexure-15 the writ application stood dismissed because the court did not find any illegality in those orders. The order passed by the High Court is annexure-15 to the writ application. The dismissal of the writ application did not deter the petitioner and some of the other litigants from filing yet another writ application as well. The writ in question in so far petitioner is concerned is CWJC No. 10302 of 1995. A Division Bench vide order dated 7.12.1995 disposed of the writ application of the petitioner allowing him to pursue an application under section 37 of the Ceiling Act before the Collector, Bhagalapur. It is in this background that the impugned order dated 31.8.1998 has come to be passed contained in annexure-2 which is under challenge in the present writ application. 10. Submission of the learned Senior Counsel appearing on - 7 - behalf of the petitioner is that keeping in mind the order contained in annexure-1 as well as the order contained in annexure-1/1, the Collector was duty bound to allot 1 unit to the petitioner on Class IV land or any other area or class of the land but the learned Collector did not apply himself to the issue and in the teeth of the order passed by the High Court the impugned order has come to be passed . 11. Learned Standing Counsel (Ceiling), however, submits that the order impugned is in conformity of the law and no fault can be found in the reasoning given by the Collector. Not only this, the Collector can not pass an order ignoring the background to the litigation and the position where the litigation had reached in this regard. 12. This Court has perused the impugned order and finds that the petitioner had been granted one unit to the extent of 31 acres of land and this was done after taking into consideration the valid transfer of land made by the petitioner and also the partition decree passed by the Subordinate Judge, Bhagalpur and in the above background section 37 application was an infructuous piece of application. The choice of the petitioner to the land demanded by him in the petition dated 14.3.1993 could not be made part of 1 unit which the petitioner had already been allotted and no modification in the draft publication therefore was required. The court finds no legal infirmity in the reasoning and would not like to exercise the jurisdiction in favour of the petitioner in the above noted background. In the opinion of the Court it is a misplaced challenge to the order - 8 - which cannot be entertained. 13. The writ application is dismissed. (Ajay Kumar Tripathi, J) Patna High Court: The 13 January, 2009. R K Pathak. (NAFR)