IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2104 of 2004 1. SAVITRI DEVI (WIDOW), RESIDENT OF VILLAGE & P.O. BARGAON, P.S. BAGAHA, DISTRICT WEST CHAMPARAN. 2. KAMINI DEVI (DAUGHTER), WIFE OF LATE ASHOK KUMAR SINGH, RESIDENT OF VILLAGE PACHGACHIA DEORHI, PO. PACHGACHIA, PS BEHRA, DISTRICT SAHARSA 3. NEELMANI KUMAR SINGH (SON), RESIDENT OF VILLAGE & PO BARGAON, PS BAGAHA, DISTRICT WEST CHAMPARAN 4. RAGINI SINGH (DAUGHTER), WIFE OF SRI ANAND SINGH, RESIDENT OF KHAPRADIH KOT, PO KHAPRADIH, PS HAIDERGANJ, DISTRICT FAIZABAD, U.P. 5. KARUNENDRA KUMAR SINGH (SON), RESIDENT OF VILLAGE & PO BARGAON, P.S. BAGAHA, DISTRICT WEST CHAMPARAN 6. RANJITA SINGH (DAUGHTER), WIFE OF SANJAY SINGH, RESIDENT OF B-102 BUDHA COLONY, BUDHA COLONY, PATNA. ------------------------------------------------------------------------- PETITIONERS Versus 1. THE STATE OF BIHAR, THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA 2. THE MEMBER BOARD OF REVENUE, BIHAR, PATNA 3. DISTRICT MAGISTRATE-CUM-COLLECTOR, WEST CHAMPARAN AT BETTIAH 4. THE ADDITIONAL COLLECTOR, LAND CEILING, WEST CHAMPARAN AT BETTIAH 5. CIRCLE OFFICER, BAGAHA, WEST CHAMPARAN 6. CIRCLE OFFICER, NARKATIAGANJ, WEST CHAMPARAN ---------------------------------------------------------------------- RESPONDENTS For the petitioners :- Mr. Sanjay Singh, Advocate Mr. Sanjiv Kumar Singh, Advocate For the State :- Mr. Ajay, S.C. 24 Mr. Krishna Chandra, Advocate ----------- 7 21.12.2010 The dispute relates to a Land Ceiling Case No. 5/73-74 initiated against the petitioners under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the „the Act‟). The dispute and the questions that have been raised during the ceiling proceedings are the same as 2 they were in the year 1979 with almost identical findings of the Ceiling Authorities. The questions that have arisen in this ceiling proceeding are (A) that the petitioners were entitled to three units and the declaration that they are entitled to only two unit is unwarranted, as it holds, that one of the petitioners‟ son was a minor on the appointed date; (B) That the findings with respect to the classification of the land is not based on cogent material; (C) Certain transfers in favour of the transferees, which were legal and valid transfers have been annulled and ignored which ought not to have been done; (D) There is a disparity in the verification report with respect to the lands owned by the petitioners. The orders passed by the Additional Collector, the Collector and the Additional Member, Board of Revenue in the year 1979 were challenged by filing writ applications numbered as 581, 652, 660, 661 and 800 of 1979 which were disposed of by a common order dated 6.5.1979. These orders were passed in the context of the disposal of the objections filed by the petitioners in the ceiling proceedings. The findings of the Court with respect to the issues mentioned aforesaid were that, K. K. Singh was a major on 09.09.1970. It has been observed that the authorities 3 rely on an anonymous letter in which it was stated that K. K. Singh was a student or had recently been a student of a school. This Court in writ application aforesaid held that “an enquiry was made from the teachers concerned but neither the person making the enquiry nor the teachers have been examined in the proceeding” and as such the medical certificate was rejected. This Court held that “only on the basis of the enquiry, which was made presumably behind the back of the petitioners no decision could have been arrived at”. With respect to the classification of the land, the Court found that the report which was relied upon did not disclose the source of irrigation and as such it was defective. The matter was remanded and liberty was given to the parties including the State to adduce evidence before the authorities concerned. Before discussing the findings of the Courts‟ below, additional facts need to be mentioned. The Ceiling Authorities while conducting the cases, have come to conflicting findings with respect to the lands owned and possessed by the petitioners. The chart is given below to demonstrate the factual position regarding this aspect. The contention of the petitioners is that the land which was to be acquired increased in 4 area, or at least differed, each time an enquiry was conducted. Village CO report‟ 1977 sec 11 of 1985 CO report‟ 1990 sec 11 of 1993 Bargaon 91.47 51.20 62.74 89.12 Dumaria 41.66 45.20 44.14 79.67 Ajuwa 07.10 03.64 59.66 59.66 Total Area 140.23 138.73 166.54 228.45 Units given 38.87 40.58 Surplus land 99.86 187.86 Perhaps the conflict has arisen due to the fact that 17 persons had filed an objection in the ceiling proceeding after remand order, stating therein that their lands have been clubbed with the lands of the petitioners. The objections were dismissed in lemini which in the opinion of this Court was completely unwarranted. The case proceeded in the manner as described below: After the institution of the ceiling proceeding, the petitioners filed their objections. The Additional Collector, Land Ceiling rejected the objection application of the petitioners on 29.11.1977 which was upheld by the Collector and the Board of Revenue. The findings aforesaid were challenged in CWJC No. 581 of 1979 and analogous cases as mentioned above and the matter was remanded by this Court on 16.5.1979. On 26.11.1984 the Additional Collector, Land Ceiling reconsidered the entire matter and held that the sale 5 deed executed before 1959 were bonafide proceedings and were accordingly excluded by the Additional Collector from the purview of the Ceiling Act. On 16.1.1985 a final statement under Section 11 of the Ceiling Act was issued based on the reports of 1977 and the petitioners were shown as holding 138.73 acres of land out of which 117.35 were Class I, 21.38 was in Class IV, and after granting two units of 38.87 acres, declared 96.22 acres in Class I and 3.64 acres in Class IV as surplus. The Collector by order dated 23.2.1986 upheld the order of the Additional Collector which was challenged before the Board of Revenue on 24.4.1989. The Member, Board of Revenue in Revision Case No. 68/1986 remanded the matter back for fresh enquiry and adjudication on the ground that the proceeding had abated under Section 32 A of the Ceiling Act. On remand, a fresh enquiry was submitted by the Circle Officer on 6.7.1990 and 4.8.1990. The Circle Officer in the reports aforesaid found that the petitioners possessed 166.54 acres of land. The Circle Officer, Bagaha also made enquiry to determine the age of the petitioner‟s son and rejected the plea that he was 39 years of age. The lands in village Ajuwa which were in fact not the lands of the petitioners were clubbed with the lands of the petitioners in the said report. The 6 petitioners then moved the Additional Collector on 30.11.1992 raising all the issues as mentioned by this Court. The final statement under Section 11 (1) of the Ceiling Act was published on 1.3.1993 showing that the petitioners possessed 228.45 acres of land out of which 147.62 acres was class-I land and 80.83 acres of land was Class-IV lands, granting the petitioners two units, declared 187.86 as surplus lands. The petitioners moved the Collector who rejected the petitioners‟ application on 30.10.1992. Final publication for acquisition under Section 15 (1) of the Act was published on 25.1.1994. The petitioners challenged the orders passed by the Additional Collector, Land Ceiling by filing Revision Case No. 240 of 1993. The Member, Board of Revenue by order dated 6.2.1997 remanded the matter back to the Collector for fresh consideration after giving direction that proper opportunity should be given to the land holder/purchasers to be heard and adduce evidence in support of their case. The Collector, West Champaran on 14.3.2002 directed the Circle Officer to make enquiry and submit a report. The Civil Surgeon was also directed to constitute a Medical Board to determine the age of the second son of the petitioner. The petitioners moved this Court by filing CWJC No. 5573 of 2002 and this Court by order dated 7 3.5.2002 directed that the State should not take possession or distribute the lands to the Purcha holders till the petitioners exhausted statutory remedy in accordance with law of limitation prescribed in availing such remedy. Notwithstanding the order of the Court, the State (Collector) began to take steps to distribute Purchas of the surplus land, interpreting the order of the Court to mean, that the Court had merely observed that no action should be taken. This Court depreciated the action of the respondent no. 2. However, the writ application was dismissed. The petitioners without being given notice, was given 15 days time to file their objections and the records were sent to the Additional Collector, Land Ceiling. The petitioners exercised their option by 31.7.2002. However, the Additional Collector recorded that the petitioners‟ option had not been filed and directed the Circle Officer to prepare Purchas. Being aggrieved by the order of the Additional Collector, the petitioners filed a revision on 17.9.2002 being Revision Case No. 164 of 2002. In the mean time, Purchas were distributed which resulted in filing of a writ application before this Court. The order contained in annexure- 18 speaks for itself regarding the conduct of the State. Eventually the Court on the undertaking and assurance given by Mr. Subramanyam, the then 8 Secretary of the Department of Revenue and Land Reforms, that the lands of the petitioners would be returned to the petitioners, and steps would be taken to ensure that the officers of the State should not disregard the provisions of the Ceiling Act and the orders of this Court while performing their functions and duties disposed of the writ application. Compensation of Rs. 1,00,000/- was paid to the petitioners in the said case. The State went in appeal which was dismissed. In this background, the Court will discuss the findings of the Member, Board of Revenue which is a detailed order approving the orders of the Additional Collector and the Collector for almost identical reasons. At the risk of repetition, I may mention that the four issues as indicated earlier in the order, were the issues before the authorities including the Member, Board of Revenue i.e. (a) with respect to the actual area of land belonging to the petitioner (b) the age of Karundra Kumar Singh on the cut off date, (c) the classification of the land, (d) the transfers made before 1959 and between 1959-70. I will first take up the issue of age of the second son of the petitioner, namely, Karundra Kumar Singh (K.K.Singh in short) for the purpose of 9 determining whether he was entitled to a unit, after being treated as a major on the cut of date i.e. 09.09.1970 under the relevant provisions of the Act. This issue has been in dispute from the very beginning and was remanded by this Court vide order and judgment passed in CWJC No. 581 of 1979 and analogous cases. This Court held while considering the question of age, that the enquiry held behind the back of K. K. Singh was not permissible and ordered for re- enquiry. In order to substantiate that K. K. Singh was a major and was entitled to a unit, K. K. Singh had produced School Leaving Certificate of K. R. H. School, Bettiah. The State has rejected the School Leaving Certificate of K. R. H. School, Bettiah on the ground that on enquiry, the teachers had mentioned that he was not a major. In my opinion, they could not have done so for the reasons mentioned in the order of this Court vide Annexure-18. A register maintained at the Panchayat level was also produced which shows that the petitioner was 22 years of age on 01st August, 1975. On the basis of the aforesaid fact, K.K. Singh is said to be 17 years & 40 days old. Again this fact and finding would indicate, that this Court would have to give the benefit to K.K. Singh, since it is well accepted that there 10 are a margin of a year or two in interpreting such a finding. The Principal of K. R. H. School, Bettiah has addressed a letter to the Additional Collector, Bettiah wherein the date of birth of K. K. Singh, son of Jay Mangal has been shown as 10th October, 1959 as per the admission register available in the school. On the basis of the aforesaid facts, the petitioners submit that K. K. Singh was major on 09.09.1970. The next important document is the medical examination report of K. K. Singh. A three- member Medical Board was constituted under the chairmanship of the Civil Surgeon, Bettiah with a doctor of forensic medicine and orthopaedic surgeon was also appointed as member. On 31.03.2002, the Medical Board assessed the age to be 45-47 years approximately. The objection of K. K. Singh is that there was no radiologist in the said Medical Board. The Member, Board of Revenue treating his age to be 47 years on 31.03.2002 has come to a conclusion that K. K. Singh was 16½ years old on the cut off date i.e. 09.09.1970. The petitioner had also produced the examination report of a doctor regarding his age in which it was shown that K. K. Singh as 18 years of age on 09.09.1970. Considering all the materials that have 11 come on record, it is apparent that School Leaving Certificate indicates that K. K. Singh was 17 years & 40 days old whereas the forensic examination shows that K. K. Singh was 16½ years of age. Regarding the age of K. K. Singh, this Court finds that the medical report indicates an approximate age of 45-47 years whereas even according to the School Leaving Certificate shows the age of K. K. Singh to be 17 years and 40 days. It is settled by several decisions with respect to determination of age that there can be a variation in the assessment upto two years. Since, the stand of the petitioner from the very beginning is that K. K. Singh was a major on the cut off date i.e. 09.09.1970, it cannot be conclusively shown that the age of K. K. Singh was less than 18 years on 09.09.1970 on the basis of the materials available on the record. In view of the conflicting materials, this Court orders that fresh medical examination should be done at the Patna Medical College & Hospital, Patna under the chairmanship of the Head of the Department of Orthopedics. The petitioner has specifically pleaded that he had made certain transfers of lands before 22.10.1959 and certain transfers were made on or after 12 09.09.1970. The law requires that the Court while examining the transfers made by a land holder for the purposes of exempting the lands from ceiling proceedings should come to the conclusion that the transfers have been made to defeat the provisions of the Ceiling Act. The Member, Board of Revenue, while discussing this aspect of the matter has referred to Section 5 (1) (3). It is said that the District Collector had held a sport enquiry in which it is said that he had taken the evidence of certain persons. The report does not indicate the names of the villagers who were examined to show that the transfer were farzi and as such the Member, Board of Revenue has rejected the enquiry report and allowed two transfers made between 1962 to 1970 in favour of Usha Devi and Kanhaiya Prasad Singh. This Court cannot understand as to why the Board of Revenue has allowed only two transfers. The enquiry made for the said purpose has been rejected, and therefore, the Member, Board of Revenue could not have been influenced by any reason as stated the report. The facts and reasons applied for allowing the two transfers made in between 1962 to 9.9.1970 would equally be applicable to the other transfers executed by the petitioner after 1962 and before the cut 13 off date i.e. 9.9.1970. The lands which have been transferred between 1962 and 9.9.1970 are as follows: vUrj.kh dk uke vUrfjr tehu vurj.k dh dk jdck dh frfFk 1- Jherh mÔk nsoh 5-92 ,dM+ 7-9-62 2- Jh ohjsUnz dqekj ey 3-18 17-8-70 3- Jh nkeksnkj iz0 flag 10-01 19-8-70 4- Jh dkUrs; iz0 flag 6-07 20-8-70 5- Jh tyrsUnz ukjk;.k flag 9-39 5-8-71 6- ohjsUnz ukjk;.k flag 9-65 5-8-71 7- Jh egsUnz iky 9-65 5-8-71 8- Jherh foNk nsoh 7-71 5-8-71 9- Jh gfj lkg 1-68 17-11-71 Similarly, the Board of Revenue has recognized the sale deeds executed by the petitioner in favour of Rajendra Prasad Singh and Ram Ujagar Singh, measuring 11.81 & 11.63 acres of land. It has been mentioned that the spot verification made regarding the transfers prior to 22.10.1959 and between 22.10.1959 to 09.09.1970 do not indicate the names of the villagers examined while making the enquiry nor has the Enquiry Officer taken the affidavits of the persons who were examined, to indicate that the transfer were farzi or benami. From the records, it would appear that only two transfers have been 14 mentioned in the order of the Additional Collector and likewise only two have been noticed and mentioned in the order of the Board of Revenue. The said enquiry with respect to the transfer deeds executed prior to 1959 is not envisaged under the Ceiling Act and as such there was no occasion for the authorities to conduct an enquiry regarding such transfers. This Court, therefore, finds that the authorities including the Member, Board of Revenue were not justified in concluding that the lands transferred by the petitioner prior to 22.10.1959 and in between 22.10.1959 to 09.09.1970 were not valid documents and as such this Court allows that those lands be exempted from the purview of the ceiling proceedings. While rejecting the enquiry report, it appears that the Member, Board of Revenue has been influenced by the findings of the enquiry report, wherein it is said that the usufruct of the lands are still being utilized by the land holder and, therefore, it is said that the transfer is Benami. The Member, Board of Revenue has thus, rejected the transfers made prior to 1959. At the same time, two transfers have been allowed on the ground that the transferees have got their names entered in the revenue records of right. The transfers made prior to the cut off date i.e. 1959, 15 cannot be subject matter of an enquiry in view of Sub- section (iii) of Section 5 which provides as follows: “Notwithstanding anything to the contrary contained in any judgment, decree or order of any court or authority the Collector shall have power to make enquiries in respect of any transfer of land by a land- holder whether by a registered instrument or otherwise made after the 22nd day of October, 1959, and if he is satisfied that such transfer was made with the object of defeating, or in contravention of the provisions of this Act or for retaining, benami or farzi land in excess of the ceiling area, the Collector may after giving reasonable notice to the parties concerned to appear and be heard, annul such transfer and thereupon the land shall be deemed to be held by the transfer or for the purposes of determining the ceiling area he may hold under this section.” I, therefore, find that the lands transferred in favour of Ram Ujagar Singh, Indu Shekhar Prasad Singh and Rajendra Prasad Singh should be exempted from the ceiling proceedings. The Member, Board of Revenue has examined the records and rightly allowed the exemption of 6.53 acres of land which were acquired in 1964 by the State Government. 16 Another aspect of the matter which is worth considering is the fact that 17 persons filed objections before the Member, Board of Revenue stating that their lands have been clubbed with the lands of the petitioner. The Member, Board of Revenue ought to have held an enquiry regarding this aspect of the matter. This Court has noticed that in several cases under the Ceiling Act, lands of strangers are clubbed with the lands of the person against whom the Ceiling proceeding is initiated, resulting in further litigation. There are instances where the proceedings have been reopened under Section 45 B of the Act on this count alone. In view of the aforesaid claims of the 17 persons, it would be proper that they should be noticed and heard before conclusion of the proceedings. In the present case, the petitioner has not been given an opportunity to exercise his right under Section 9 of the Act and as such after decision in this case regarding the age of K. K. Singh, and after hearing the claims of all the 17 persons that their lands have been clubbed with the lands of the petitioner in the Ceiling proceedings, the petitioner should be given an opportunity to exercise his right under Section 9 of the Act and he should be permitted to given an option with 17 respect to the lands he wishes to retain. This Court, therefore, remands the matter back to the District Magistrate-cum-Collector, West Champaran and quashes the order dated 30.10.1992, passed in Ceiling Case No. 5 of 1973-74 for the reasons mentioned aforesaid and are being summarized below with the following directions: a) A Medical Board to examine the present age of K.K. Singh, should be constituted. The Superintendent of the Patna Medical College & Hospital is directed to constitute a Board, within a period of three months on a requisition being filed on behalf of the petitioners. K.K. Singh is also directed to file the application before the District Magistrate-cum- Collector, West Champaran at Bettiah so that the District Magistrate may certify, that there is an order of this Court, for constitution of a Medical Board to examine the age of the K.K. Singh. After the District Magistrate forwards the application, it should be presented to the Superintendent of the Patna Medical College & Hospital who will constitute a Board and examine K.K. Singh. The petitioner (K.K. Singh) should also produce a photo copy of the order of this Court before the Superintendent of the Patna Medical College & Hospital to satisfy him that there is a valid order of 18 this Court to constitute such a Board for the purposes aforesaid. b) The lands transferred by the petitioners before 22.10.1959 should be exempted from the purview of the ceiling proceedings. c) The lands transferred in between 1962 to 1970 should likewise be exempted from the ceiling proceedings for the reasons stated in this order. d) The 17 persons who claim that their lands have been clubbed with the lands of the petitioners should be noticed by the District Magistrate. If such persons appear before the District Magistrate with the relevant papers showing their title, the District Magistrate may get spot verification/enquiry made with respect to possession of such persons, in their presence, which enquiry report should be counter signed by the 17 persons concerned and pass fresh orders with respect to the lands in question. e) This Court is not inclined to interfere with the classification of the lands made by the authorities. This writ application is disposed of with the aforesaid observations and directions. Sanjay/Anand ( Sheema Ali Khan, J.)