IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7565 of 2005 BINDESHWARI MAHTO S/O LATE BHAGLU MAHTO R/O VILL- NAOKOTHI P.S. NAOKOTHI, DIST. BEGUSARAI ----- PETITIONER Versus 1. T HE STATE OF BIHAR 2. THE COLLECTOR, BEGUSARAI 3. (a) MAHANTH RAM DEO DAS R/O VILL & POST BISHUNPUR, P.S. BEGUSARAI, DIST. BEGUSARAI 4. CHAMRU SADA SON OF RAM SAGAR SADA 5. SRIPAD SADA SON OF KISHUN SADA 6. DOMAN SADA SON OF SRIPAD SADA 7. (a) KANKATU SADA S/OLATE RAGHO SAD R/O VILL KARANPUR, POST BAGBAN P.S. BAKHRI BAZAR, DIST. BEGUSARAI 7.(b) GHURAN SADA S/O LATE RAGHO SADA R/O VILL KARANPUR, POST BAGBAN P.S. BAKHRI BAZAR, DIST. BEGUSARAI 8. SUNDAR SADA SON OF DADU SADA 9. (a) GANGA RAM SADA S/O LATE KHAKHAR SADA R/O VILL KARANPUR, POST BAGBAN, P.S. BAKHRI BAZAR, DIST. BEGUSARAI. ---- RESPONDENTS. For the petitioner : Mr. Vivekanand Prasad Singh, Advocate. For the State : Mr. Shashank Shekhar Jha, A.C. to G.P.22. ----------- 09. 05.04.2011 Challenge in this application is to the order dated 8.8.2003 (Annexure-7) passed by respondent-Collector, Begusarai, in case No. 07 of 1991, whereby the application preferred by the petitioner for deleting 5 Bighas, 2 Khatas and 11 Dhurs of land purchased by the petitioner or his ancestors by reason of sale deeds effected on 02.11.1966, 23.01.1968 and 20.05.1970 by the original land holders. Background facts leading to the present application may be set out in brief:- According to the writ petitioner, original land holder, namely, Mahanth Ram Jeevan Das had sold altogether 3 Bighas and 11 Kathas of land in favour of mother as well as aunty of the writ petitioner. Again on 23.1.1968, aforesaid land holder sold 4 Bighas, 2 8 Kathas and 2 Dhurs of land appertaining to Khata Nos. 38 and 10, Khesra Nos. 199 and 196 respectively. It is further the case that on 20.5.1970, the aforesaid land holder sold 4 Bighas, 6 and half Kathas of land situated in mouza Singhwara in the District of Begusarai, which was purchased in the name of the petitioner and his three full brothers. A land ceiling proceeding was initiated against the aforesaid land holder, namely, Mahanath Ram jeevan Das being L.C. No. 9 of 1973-74 wherein a notification was issued under Section 15(1) of the Act on 1.9.1990. Certain lands in the hands of the land holder was declared surplus including 5 Bighas, 2Khatas and 11 Dhurs of land purchased by the petitioner or his ancestor by sale deeds dated 2.11.1966, 23.1.1968 and 20.5.1970. Having noticed the same, the petitioner filed a proceeding before the respondent-Collector under Section 37 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land ) Act, 1961 ( hereinafter referred to as the „Act) as it stood then seeking deletion of the lands claimed by him by aforesaid three sale deeds. This gave rise to Misc. Ceiling Case No. 7 of 1991. Under the orders of the Collector, the Additional Sub-Divisional Officer initiated enquiry in terms of provisions of the Act wherein three witnesses were examined on behalf of the petitioner who were cross examined by the State. The concerned sale deeds and other documents were also produced in the proceeding. The records were thereafter sent to the respondent Collector on 04.02.1992 for passing appropriate order. It appears that subsequently, the respondent-Collector by order dated 28.11.1995 rejected the application of the petitioner on 3 the ground that by virtue of amendment brought about by ordinance No. 20 of 1995 effective from 8.9.1995 where by the aforesaid section stood deleted from the statute book. Accordingly, by order dated 28.11.1995 the same was dropped. Aggrieved by aforesaid order the petitioner moved this court in C.W. J. C. No. 1095 of 1996. This court by proceeding dated 29.3.1996 (Annexure-6) disposed of the said application in the following terms:- “It appears that the application was pending from before the ordinance came into force in the month of September, 1995. In that view of the matter, the Collector was not justified in dropping the proceeding for the simple reason that the operation of the ordinance is not retrospective. The said ordinance will apply to the proceedings initiated after the ordinance came into force. Accordingly, the impugned order is set aside and the matter is remitted to the Collector to consider the question afresh in accordance with law.” After the said order passed by this Court, the respondent Collector took up the matter and obtained a fresh report from the Sub Divisional Officer , Bakhari which was submitted to him by a communication contained in letter no. 924 dated 18.02.2000 whereafter the application was dismissed by the impugned order dated 08.08.2003 leading to filing of the present case. No counter affidavit on behalf of the State respondent has been filed. Heard learned counsel for the petitioner and the State and perused the materials on record. In spite of service of notice no one has appeared on behalf of the private respondents (settlees) to 4 contest the present application. It is submitted on behalf of the petitioner that in terms of the provision under Section 37 of the Act, as it then stood an enquiry in terms of Section 5(i)(iii) of the Act was initiated and assigned to the Additional Sub Divisional Officer, Bakhari whereafter the said enquiry commenced in which all the documents including the sale deeds were produced and oral evidence was led. The witnesses produced on behalf of the petitioner was also cross- examined and a report was submitted to the respondent Collector on 04.02.1992 ( at page 52 of the brief). The respondent Collector called for a fresh report from the Sub Divisional Officer, Bakhari which was submitted disclosing therein that few of the settlees (respondents herein) were in possession of part of the said land after having been granted purchas/cards in their favour. The respondent Collector without adverting to the entire materials collected by the Additional Sub Divisional Officer under orders of the respondent Collector and recording his findings thereon rejected the claim of the petitioner merely noticing the fact that the settlees were in possession of the subject land. It is submitted that the said order is therefore bad in law as also contrary to observations of this Court made in C.W.J.C. no. 1095 of 1996 (Annexure-6), whereby the respondent Collector was held vested with the jurisdiction conferred under Section 37 of the Act and was commanded to proceed with the proceeding which was filed when Section 37 of the Act was very much on the Statute. It is, thus, the stand of the petitioner that the order impugned is fit to be interfered with and quashed. 5 Learned counsel appearing on behalf of the State, on the other hand, submits that in the whole of the writ petition it has not been pleaded that soon after purchase of the land from the original land holder any effort was made to get the Revenue records altered and the names of the petitioners/purchasers entered in Register II. This would shows that the sales were either made to defeat the provision of the Act or were inoperative having not been acted upon. It is further submitted that report of the Circle Officer indicated that the petitioners/purchasers were not in actual physical possession of the subject land. I have considered the submissions made on behalf of the parties and perused the materials on record. It appears that the petitioners had made an application before the authority under Section 37 of the Act seeking diverse relief(s). Section 37 of the Act as it stood then reads as under:- “Collector to decide dispute for which no specific provision made- If any dispute arises under this Act or the rules made thereunder for which no specific provision has been made in this Act, the dispute shall be decided by the Collector in the prescribed manner and the appropriate provisions of this Act, so far as may be, shall apply thereto; Provided that no such decision shall be made without giving the parties a reasonable opportunity of being heard and adducing evidence.” Learned counsel for the petitioner has relied on a judgment of this Court rendered in the case of Shri Bishundeo Mahto and ors vs. The State of Bihar & ors. since reported in 1990(2) PLJR 73 in order to demonstrate that the jurisdiction 6 conferred on the Collector under Section 37 of the Act was wide enough to grant the relief(s) prayed for by the petitioner. Learned counsel has placed reliance on paragraph nos. 16 and 17 of the report which are extracted hereinunder:- “16. Language of section 37 aforesaid is very wide. It is also residuary in nature. It can be pressed into service by any one including the State to resolve any dispute for which there is no provision. Admittedly no notice was given to the petitioners of the draft statement. Naturally notice of the final statement prepared under section 11(1) of the Act was also not given to them. The question of giving any notice of the notification under section 15(1) of the Act also never arose. The effect of the notification under section 15(1) of the Act was that the title of the petitioners in the land in question stood extinguished as the land in question vested in the State of Bihar free of all encumbrances as it is apparent from the language of section 15(1) of the Act. Thus the net result is that the petitioners have been deprived of their lands without giving them any opportunity to have their say in the matter. In view of the withdrawal of the instructions by the State Government, I am of the view that section 37 of the Act can still be invoked by the petitioners. 17. Thus, I quash the impugned order as contained in Annexure-2 and direct the Collector, Samastipur (Respondent No.2) to decide the dispute raised by the petitioner No.1 under Section 37 of the Act in absence of any specific provision under the Act. Respondent No.2 is directed to dispose of the application filed by the petitioner No.1 (Annexure-1 to this application), after adding petitioners 2 to 5 as such, under Section 37 of the Act after giving a reasonable opportunity of being heard to them, the State of Bihar as also to Respondent No.4 herein. I also direct the petitioners and Respondent No.4 to appear before Respondent no.2 on or before 15th June 1990. Respondent No.2 is further directed to maintain status quo till the disposal of the application (Annexure-1) as 7 already directed by this Court on 17.3.1982. If it is found that respondent No.4 has nothing to do with the land in question and that it belongs to the petitioners, in that event the Collector (Respondent No.2) or any other authority to whom the case is transferred shall delete the lands of the petitioners from the final statement and the State shall also delist the land from the notification under Section 15(1) of the Act.” The Collector under the Act was, therefore, empowered to consider and grant the relief to the petitioner after adopting procedure laid down therein. It is not in dispute that pursuant to the application preferred by the petitioner invoking the said jurisdiction of the respondent Collector an enquiry was ordered in terms of the provisions of the Act and was assigned to the Revenue authority below him (in the present case Additional Sub Divisional Officer, Bakhari). It further appears from the materials on record that such enquiry had been initiated in which the petitioner was permitted to lead evidence and to file documents relied upon. The evidence was led. Witnesses produced on behalf of the petitioner were also cross- examined by the State. The current status regarding possession of the land was also ascertained and by a proceeding dated 04.02.1992, a report was submitted to the respondent Collector along with the records of the case. It seems the Collector thereafter called for a fresh report regarding possession of the land whereafter it was reported that the land was/were in possession of some of the settlees. Persuaded by the said consideration the impugned order dated 08.08.2003 (Annexure-7) was passed without adverting to the other materials collected in course of inquiry made pursuant to the order 8 of the respondent Collector. It is seen from the ratio laid down in Bishundeo Mahto (Supra) that the Collector even after deletion of Section 37 of the original Act was entitled to grant appropriate relief to the petitioner. Such findings in the case of the petitioner has already been recorded by this Court in CWJC no. 1095 of 1996 (Annexure-6) . True it is that possession of the land would be a relevant consideration in determining the claim of the parties inasmuch as the authority has further to examine the fact that one of the sales made in favour of the petitioner appertaining to khata no. 9, khesra nos. 331 and 330 were brought into existence in May, 1970 and no step was taken by the petitioner to get their name(s) entered in the revenue records soon after such purchase made in their favour by 03 sale deeds but there has to be a consideration of the matter on merit by the respondent Collector based on materials on record. It appears from the impugned order that no such consideration was made. The respondent Collector in the impugned order has only noticed the fact that the land in question is/are not in possession of the purchaser of the sale deeds from the original land holder and as such no relief can be granted to the petitioner. In view of the discussions made above and the conclusions recorded by me, this Court is inclined to interfere with the order dated 08.08.2003 as contained in Annexure-7 passed by Collector, Begusarai in case no. 07 of 1991 by issuing appropriate writ(s)/ order(s). Accordingly the application is allowed. Order dated 08.08.2003 as contained in Annexure -7 is hereby quashed and set aside. The matter goes on remand to the respondent Collector for 9 consideration and disposal afresh in accordance with law. Petitioner would appear before the said authority within a period of 04 weeks along with a copy of the present order enabling the said respondent to dispose of the matter in accordance with law after affording opportunity of hearing to the parties. There shall be no order as to costs. Sym/Devendra ( Kishore K. Mandal, J.)