IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.648 of 2006 1. TARA DEVI, WIDOW OF LATE RADHA RAMAN SINGH 2. ONKARNATH PATEL, SON OF LATE RADHA RAMAN SINGH BOTH RESIDENT OF VILLAGE DATIYAW, P.S. BHABHUA, DISTRICT KAIMUR AT BHABHUA.---- LAND HOLDERS-PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR, PATNA 3. COLLECTOR, KAIMUR AT BHABHUA 4. SUB-DIVISIONAL OFFICER, PATNA. --- RESPONDENTS For the Petitioners :- Mr. D.K. Sinha, Advocate Mr. Chakravarti Singh, Advocate ----------- 3 17.8.2010 The petitioners are aggrieved by the order dated 10.12.2004 by which 3.55 acres of his lands has been declared surplus under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as ‘the Act’). 2. Originally the petitioners have challenged the findings in the ceiling proceeding on two grounds. Firstly, that they were claiming two units and secondly the case of the petitioners was that the lands of the petitioners specifically 7.05 acres of land were class IV lands having no facility of irrigation on the cut off date i.e. 9.9.1970. Ultimately the ceiling authorities held that the said 7.05 acres of lands were class III lands and thereby calculated the surplus land of the petitioners. 3. The petitioners came to this Court by filing CWJC No. 5313 of 1993. The Court after considering the questions raised with respect to classification of the land has specifically held that the area of 7.05 acres of land which were declared class III lands are in fact class 2 IV lands, on the ground, that on inspection of the lands, by the L.R.D.C. he came to the conclusion that there were no means of irrigation for the lands in question on 9.9.1970. During the pendency of the writ application, a notification under Section 15(1) was published, as the authorities were ignorant of the pendency of the appeal and the revision. This Court held that notification under Section 15(1) could not have been published and is not tenable in the eye of law in view of the decision of this Court in 1992 (2) PLJR 631 wherein it has been held that during the pendency of an appeal or revision Section 15(1) notification cannot be issued. 4. After the order of this Court, the Sub-divisional Officer, Bhabhua held that the petitioners had 3.55 surplus acres of land. The main contention of the petitioners before the Sub-divisional Officer, Bhabhua and the Courts of the Collector and Board of Revenue were that during the consolidation proceedings, 2.5% out of his entire land is declared to be public land, and this being the position the petitioners would not have any surplus land. The plea of the petitioners was rejected on the ground, that it was said, that they could not bring any document in support of their case. Being aggrieved by the order of the Sub-divisional Officer, Bhabhua, the petitioners filed an appeal numbered as 1 of 2005 before the Collector, Kaimur. The Collector also rejected the plea of the petitioners on the ground that 2.5% of total area of land has been excluded in the consolidation proceeding. The Collector has rejected the plea of the petitioners on two grounds. Firstly, it is said that there is no provision under the Ceiling Act to 3 deduct such land from the ceiling proceeding and secondly the Collector held that the plea has been taken for the first time after the remand of the case and it was not raised or urged earlier by the petitioners either before the Court of Revenue or in the High Court. Similarly Member Board of Revenue dismissed the plea of the petitioners in the revision application by order dated 30.7.2005. 5. Learned counsel for the petitioners submits that the observation of the Sub-divisional Officer, Bhabhua that no documents was produced is absolutely unwarranted in view of annexure- 11 which is letter no. 415 dated 8.7.2002 issued by the Circle Officer, Bhabhua in reply to the queries raised with respect to the said 2.5% land of the petitioners which was declared as public land or retained for the use of villagers. The details of the lands which have been deducted from the consolidation Chak belonging to the petitioners has been mentioned in the said letter dated 8.7.2002 which however, has not been brought on record of this case. 6. This Court finds that annexure- 11 does not contain the relevant material which would indicate that 2.5% lands belonging to the petitioners were carved out of the lands belonging to the petitioners. A/13 on the other hand is a typed document purportedly issued by Consolidation Officer on 7.5.2002 wherein it is recorded as follows: ekStk nfr;ko Fkkuk 503 ds vUrxZr izkji pd ;kstuk ds vUrxZr LVsUMj jS;r ls 2½ izfr’kr vuq’knku esa xzke ds fodkl gsrq dVkSrh dh x;h gSA 7. The description of land, or the details from where the land was carved out is significantly missing ! The details of land in 4 possession of the petitioners have been mentioned, but there is no pleading with respect to the lands which were retained/donated by the petitioners, in the consolidation proceeding. The final chak is also not annexed to substantiate the case of the petitioners. 8. Learned counsel for the petitioners submits that the Sub-divisional Officer, Bhabhua without applying his mind, or considering the letter no. 415 dated 8.7.2002 has held that no material was produced on behalf of the petitioners. It is submitted that the reasoning of the Collector is similarly untenable and not in accordance with law, when he rejects the plea aforesaid raised on behalf of the petitioners. Even it is presumed that the petitioners had not raised a plea that 2.5% of his land has been declared as public land by the consolidation authorities, it was something which ought to have been ascertained from the records by the Sub-divisional Officer, Bhabhua/Collector or even Board of Revenue. The Ceiling Act envisages that lands which belong or are owned by the land holder should be subject matter of the ceiling proceedings. By the impugned orders the Ceiling authorities are purporting to declare lands which have already surrendered in the name of the State of Bihar as surplus. After the proceeding under Section 15(1) the lands declared as surplus would be distributed to the landless. In effect the State would be distributing lands which are being utilized for public purpose. 9. I thus direct that the Collector may ascertain the contents of letter no. 415 dated 8.7.2002 before taking any further steps in the Ceiling proceeding. If the letter is vague as annexure- 13, 5 nothing is required to be done, however, if there is any specific area covered by the letter then it would be proper for the Collector to make correction of the notification. The petitioners may approach the Collector within six weeks on receipt of the order. The Collector may examine the records and dispose of the application within four months. 10. The writ application is disposed of with the aforesaid observations. Sanjay (Sheema Ali Khan, J.)