CIVIL WRIT JURISDICTION CASE No. 7689 OF 2000 *** (In the matter of an application under Articles 226 of the Constitution of India) ****** MAHANTH GOSWAMI GANGA SHARAN GIRI, TRUSTEE, MURLIPUR MATH, VILLAGE MURLIPUR, POLICE STATION SHEO SAGAR AND ALSO TRUSTEE OF SOTWAN MATH, VILLAGE SOTWAN, POLICE STATION NOKHA, DISTRICT ROHTAS ………………………………………………………...……………………...PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE COLLECTOR, ROHTAS 3. THE ANCHAL ADHIKARI, SHEO SAGAR, ROHTAS 4. THE ANCHAL ADHIKARI, NOKHA, ROHTAS …………………………………………………………………………….RESPONDENTS ******************** FOR THE PETITIONER :- MR. KAMAL NAYAN CHOUBEY, SR. ADV. MR. AMBUJ NAYAN CHOUBEY, ADVOCATE MR. SIDDHARTH HARSH, ADVOCATE MS. RITU PRIYADARSHINI, ADVOCATE FOR THE S T A T E :- MR. O. P. UPADHYAY, S.C. (CEILING) II FOR THE INTERVENORS :- MR. BASANT KR. CHOUDHARY, SR. ADV. MR. ARVIND KUMAR NO. II, ADVOCATE ********** P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. The petitioner has challenged the order of the Collector, Rohtas dated 01.08.2000 passed in Land Ceiling Appeal No. 09 of 2000 rejecting the option filed by the petitioner under Section 9 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) 2 Act, 1961 (hereinafter referred to as the Act). The facts are that the petitioner is the present trustee of two Maths at Murlipur and Sotwan within the district of Rohtas. Two ceiling proceedings were initiated which are Ceiling Case No. 01 of 1996, relating to Murlipur Math in which 68.73 acres of land was involved and Ceiling Case No. 15 of 1997, relating to Sotwan Math, in which the entire lands measured 18 acres. During the ceiling proceedings, there was a recommendation by the Collector, Rohtas for grant of two units under Section 29 of the Act which has been subsequently deleted, as a result, the recommendation of the Collector was not accepted and one unit was granted for Murlipur Math. The petitioner, at that time, surrendered 18.73 acres of land voluntarily under Section 15 of the Act on 17.11.1992. After the declaration of one unit each with respect to the two Maths in question, the petitioner filed a writ application being CWJC No. 6609 of 1999, which was disposed of on 25.04.2000 (Annexure-1) confirming one unit for each of the two Maths. This Court also held that the petitioner would have the right to exercise his option after the entitlement of the landholder was finally decided. This is the consistent view of the High Court in several decisions including the decision rendered in the Case of Lallan Prasad Singh & Others vs. The State of Bihar & Others, reported in 1992 (2) PLJR 361. 3 In pursuance to the decision of this High Court, the petitioner filed his option. The dispute has arisen and the problem has begun after the petitioner exercised his option. Since, the two Maths are situated in two different anchals, the Collector without noticing the petitioner ordered for an enquiry by the Circle Officers of the two anchals. The Circle Officers, in their wisdom, did not issue notice to the petitioner and conducted an ex-parte enquiry, which has been brought on the record by way of supplementary counter affidavit. The enquiry is with respect to the entire lands belonging to the landholder. It indicates that some of the lands are in possession of Sikmi holders, other lands have been encroached upon by several persons as mentioned in the enquiry report, and some of the lands have been settled by the State of Bihar after the voluntarily surrender by the petitioner with respect to 18.73 acres of land. After receiving the enquiry report, the Collector did not issue notice to the petitioner to reply to the enquiry report and passed an order rejecting the option filed by the petitioner. The Collector has come to a conclusion that any transaction which is like a transfer would amount to transfer. The Collector has stated that in fact the petitioner has orally sold several plots of land to different persons and allowed them to encroach upon the lands. These transactions, according to the Collector, amount to transfer 4 and, therefore, all those lands which have been encroached upon should be added in the unit to be retained by the petitioner. This Court cannot uphold the order of the Collector for the basic reasons that it has been passed behind the back of the petitioner. The right of property is valuable right and any order passed by any authority has to be done after an opportunity is given to the person concerned who will be affected by the said order, in order to grant him opportunity to explain the allegations or the facts, with respect to the case before the authority concerned, before adjudicating on the matter. Digression from the rule and procedure by not granting opportunity to the person likely to be affected by the order is unsustainable, and such an order has to be struck down. Apart from the fact that principles of natural justice have not been followed by the Collector while rejecting the application under Section 9 of the Act filed by the petitioner, this Court also finds that the reasonings are incorrect. There is no concept of an oral sale in law. On the basis of oral sale, no person can claim title, as such title of the land does not pass to any person, who is making a claim that he is in possession over the lands and has right and title by virtue of oral sale. The person concerned has, if at all, purchased a bag of wind. The status, therefore, is nothing, 5 but that of an encroacher. Similarly, the Collector had no material to come to the conclusion that the petitioner is responsible for allowing certain persons to encroach upon the lands. In fact, on the contrary, the petitioner has alleged that encroachment took place with the connivance of the local authorities. Such a submission seems a bit far fetched, at the most it may be noted that quite often anti-social elements or other persons, encroach upon land, and the authorities wait for a complaint to be filed before they take any action or steps to remove the encroachment. This Court also cannot uphold the enquiry which has been conducted by the Circle Officers of the two anchals on the ground that it is behind the back of the petitioner, it does not record the statement of the persons who are said to be the encroachers, it does not record how the person claiming to be a Sikmidar can prove that he is a Sikmidar. All such claims or all such oral statements must be made in presence of the petitioner and be recorded in writing to be accepted by any Court of law. Before issuing the final direction to the Collector, I must record that the counter affidavit filed on behalf of the State indicates that “the choice given in respect of Sotwan Math was accepted without any change”. It, therefore, appears that there is no dispute with respect to the option filed by the petitioner regarding Sotwan Math. 6 An intervention petition has been filed on behalf of the purcha holders in which they have stated that they have been distributed purchas for the lands which are in their possession which was surrendered by the petitioner voluntarily on 17.11.1992. There is no dispute with respect to the fact that the lands in question were voluntarily surrendered and if the purcha holders are in possession over such lands which were voluntarily surrendered by the petitioner vide Annexure-1, there is no conflict of interest vis- à-vis the intervenors and the petitioner or the State for that matter. In the result, I quash the impugned order as contained in Annexure-4 passed by the Collector and direct the Collector to issue notice to the petitioner within a period of eight weeks from the date of receipt/production of a copy of this order. I also make it clear that the Collector cannot rely on the enquiry report conducted behind the back of the petitioner. At the same time, the Collector, Rohtas would be at liberty to start encroachment proceedings against the persons concerned, if so advised. This application is accordingly allowed. ( Sheema Ali Khan, J. ) PATNA HIGH COURT DATED, THE 26TH AUGUST, 2010 N.A.F.R./ANAND