CIVIL WRIT JURISDICTION CASE No.1581 OF 1997 ------- In the matter of an application Under Article 227 of the Constitution of India -------- Chandra Kala Mishra, wife of Kamla Prasad Mishra R/O village-Kachore, P.O.-Phul Kaha, P.S.- Kanhauli(Sonevarsha) District -Sitamarhi ……………..…….petitioner. Versus 1. The State Of Bihar 2. Additional Member, Board of Revenue, Govt. of Bihar, Patna. 3. Collector, Sitamarhi. 4. Additional Collector, Sitamarhi. 5. Kamla Prasad Mishra son of late Jaldhari Mishra, R/O Village- Kachore, P.O.- Phul Kaha, P.S.- Kanhauli (Sonevarsha) District Sitamarhi 6. Circle Officer, Soneversha Circle, Dist. Sitamarhi. 7. Achechelal Ram son of Rudal Ram 8 .Gopal Paswan son of Garabhu Paswan 9. Asharfi Manjhi son of Moti Manjhi, 10. Budhan Manjhi son of Bhuta Manjhi 11 .Binda Paswan son of Kalash Paswan, all are resident of Village- Kachore, P.O.- Phul Kaha, P.S.- - Kanhauli (Sonevarsha) District- Sitamarhi ……………………………………respondents. ------- For the petitioner : None For the respondent Nos.1 to 4 & 6: Mr. O.P. Upadhyay S.C.2 (Ceiling) For respondent no. 5: None For respondent nos. 7 to 11: Mr. Barun Kumar Chaudhary, Advocate Mr. Manish Kumar, Advocate. P R E S E N T THEHON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA B.P. Verma, J The petitioner is aggrieved by the orders passed by the respondent-authorities in a land ceiling (surplus) case instituted and concluded against respondent No.5, Kamla Prasad Mishra, under the provisions of Bihar Land 2 Reforms ( Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as “the Land Ceiling Act”), whereby the land holder(respondent no.5) has been held to be entitled to be allotted to only one ceiling unit and, accordingly, he has been allowed to retain 30 acres of class-IV lands, and the remaining 42.69 acres of lands including the lands claimed by the present petitioner have been declared surplus. 2. No one appeared on behalf of the writ petitioner to press this writ petition. However, we have heard learned Standing Counsel No.2 (ceiling) appearing for the official respondents, as also learned counsel appearing on behalf of intervenors –respondents No. 7 to 11 and have perused the materials available on record. The writ petition was admitted by order dated 4.4.1997, for being heard by a Division Bench. Thus, the matter has come up for our consideration and its final disposal. 3. A brief facts are essential to be noticed for disposal of the present writ petition. 4. It appears that a land ceiling (Surplus) case was originally started in the year 1973, against respondent no.5, Kamla Prasad Mishra, the husband of the 3 writ petitioner. On the basis of return filed by respondent no.5, and on the basis of verification report submitted by the revenue authorities, draft statement under section 10(2) of the Land Ceiling Act was published, and 50.21 acres of land were found to be surplus. Respondent no.5 appears to have filed various objections under section 10(3) of the Land Ceiling Act, praying therein that some of the lands standing in the name of other persons including in the name of the present writ petitioner be excluded from the land ceiling proceeding. The objections filed by respondent no.5 for exclusion of the lands standing in the name of either his first wife Ramjyoti Devi, or in the name of his second wife Chandra Kala Mishra (present petitioner), were rejected by the original authority and the lands standing in their names were treated to be the land of the statutory family under the meaning of section 2(ee) of the Land Ceiling Act. The plea raised by respondent no.5 was negatived by thelearned appellate authority as also the revisional authority . However, on certain limited issue, the matter was remanded by the Board of Revenue, in exercise of its powers under section 32 of the Land Ceiling Act. 5. Respondent no.5, being aggrieved by the 4 aforesaid orders, preferred C.W.J.C. No. 1602 of 1977 before this Court and challenged the validity and legality of the orders passed by the original authority, appellate authority, and the revisional authority on various grounds. One of the pleas raised was that the lands, which have been transferred by him in favour of his first wife Smt. Ram Jyoti Devi, as also in favour of his second wife Chandra Kala Mishra (the present petitioner), have wrongly been treated to be the lands of respondent no.5, and those lands were required to be excluded from the land ceiling proceeding. The aforesaid writ petition filed by respondent no.5 was finally heard and dismissed by judgment and order dated 3.1.1985, by a learned Single Judge, and has since been reported in 1985 PLJR 1004 (Kamla Prasad Mishra Vs. State of Bihar). Learned Single Judge in paragraph 4 of the judgment has noticed as follows: “It is not the case of the petitioner that the second wife had separated from the petitioner nor it has been his case that the property in question claimed in the name of the second wife was her stridhan property, and therefore, that could not be claimed together. It is difficult to accept the contention of the learned counsel for the petitioner as the definition of ”Family” and “Land holder” in the Ceiling Act does not warrant the exclusion of the properties held by the members of the Family.” 6. It further appears that though the earlier 5 writ petition filed by respondent no.5 was dismissed by this Court, but in view of order of limited remand passed by the Board of Revenue, respondent no.5 filed a petition on 26.8.1988, before the respondent Additional Collector, Sitamarhi, for starting a proceeding afresh in purported exercise of his power under section 32 B of the Land Ceiling Act. Accordingly present land Ceiling Case No. 12 of 1988, was started against respondent no.5, and fresh draft statement under section 10(2) of the Land Ceiling Act was published. Respondentno.5 filed similar objections under section 10(3) of the Land Ceiling Act, praying therein for exclusion of certain lands from the land ceiling proceeding. He also claimed for a separate unit for his daughter ,Kumari Puja ,on the ground that her mother Ram Jyoti Devi has died in the year 1987, and at the time of death of her mother , Kumari Puja was major aged about 18 years. However, the present petitioner did not file separate objection under section 10(3) of the Land Ceiling Act. Learned Additional Collector, Sitamarhi, considered all objections filed by respondent no.5 and, by the impugned order dated 12.10.1993 (Annexure-3), came to a finding that respondent no.5 and his spouse including the writ petitioner along with 6 the minor daughter, Kumari Puja, constitute a family as defined under section 2(ee) of the Land Ceiling Act and, therefore, they together are entitled to be allotted only one ceiling unit. Accordingly by aforesaid impugned order dated 12.10.1993 (Annexure-3), 30 acres of class IV lands have been allowed to be retained by the land- holder and 42.69 acres of lands, which includes the lands claimed by the present writ petitioner, have been declared surplus. 7. It is relevant to mention here that, according to respondent no.5, his daughter Kumari Puja was major in the year 1987, when his first wife Ram Jyoti Devi died. According to respondent no.5 also on the appointed day i.e. on 9.9.1970, his daughter Kumari Puja was minor hardly aged about two years. However, learned Additional Collector, relying on school certificate of Kumari Puja, has come to a finding that even in the year 1994, she was minor aged about 15 years, as her date of birth has been recorded as 24.12.1979 in the school register. 8. Respondent no.5 preferred Land Ceiling Appeal No. 18 of 1993, against the original impugned order dated 12.10.1993 (Annexure-3), which was finally heard and dismissed by the learned District Collector, Sitamarhi, 7 by his impugned order dated 29.9.1994 (Annexure-2). Revision filed by respondent no.5 and his daughter Puja Kumari has been disposed of by impugned order dated 20.1.1997 (Annexure-1). Learned Additional Member, Board of Revenue, has affirmed the original order dated 12.10.1993 (Annexure-3),and the appellate order dated 29.9.1994 (Annexure-2), but has given liberty to respondent no.5 to exercise his option under section 9(2) of the Land Ceiling Act with respect to 30 acres of lands allowed to be retained by him. 9. Learned counsel for respondent No. 7 to 11 submitted that respondent no.5 and/or his daughter Puja Kumari, have thereafter, not challenged these orders passed by the authorities under the Land Ceiling Act, and they appear to have accepted the finality of these orders. However, thereafter, the present writ petition has been filed by the petitioner before this Court challenging the validity and legality of the orders contained in Annexures 1, 2, 3 and 4, whereby 42.69 acres of lands of the landholder have been declared surplus and have been acquired by the authorities under the provisions of Land Ceiling Act. 10. To us, it appears to be a proxy litigation 8 filed by the petitioner at the behest of her husband- respondentno.5. It has, nowhere, been pleaded that the lands, which are claimed by the writ petitioner, were her stridhan, rather it has been admitted that these lands were given to her by her husband, respondent no.5, at the time of alleged separation. In order to consider the claim of the writ petitioner, it would be apt to quote section 2(ee) defining “family”, and 2(g) defining “land holder”, of the Land Ceiling Act, which are as follows:- “2 (ee) - “family” means and includes a person, his or her spouse and minor children; Explanation I. In this clause the word person includes any company, institution, trust, association or body of individuals whether incorporated or not; Explanation II.- The personal law shall not be relevant or be taken into, consideration in determining the composition of the family for the purposes of the Act; 2 (g) - “Land holder” means a family as defined in clause (ee) holding land as raiyat or as under –raiyat or a mortgagee of land in possession of holding land permanently settled by Government or lessee of land not resumable by Government;” 11. Under the Land Ceiling Act, the land holder means a statutory family, which includes a person, his or her spouse and minor children. Lands, held individually or jointly by the members of the family, are required to be clubbed together and are required to be 9 treated to be the lands of the statutory family for the purpose of determining ceiling area u/s 4 of the Land Ceiling Act. In view of admitted position that the petitioner is the spouse of respondent no.5, and Puja Kumari happens to be his minor daughter on the appointed day i.e. on 9.9.1970, therefore, the authorities under the Land Ceiling Act have rightly come to the conclusion that respondent no.5, the writ petitioner, as also Puja Kumari @ Kumari Puja, together constitute a family as defined under section 2(ee) of the Land Ceiling Act , and they together are entitled to be allotted only one ceiling unit. Even on the basis of claim of separation between husband and wife, lands owned by them separately are required to be treated as the lands belonging to the “Family” in terms of Section 2(ee) of the Land Ceiling Act, otherwise it would defeat the very object of the legislative intent of the Land Ceiling Act. 12. Learned counsel for the respondents have rightly submitted that all the pleas raised by the petitioner here in the present writ petition were already raised earlier by her husband Kamla Prasad Mishra in C.W.J.C. No. 1602 of 1977, and the same were rejected by this Court on that occasion. Thus, these issues could not 10 have been agitated again, which stood concluded by the previous judgment reported in 1985 PLJR 1004. 13. In the aforesaid background, we find no error in the impugned orders passed by the authorities under in the Land Ceiling Act. Consequently, writ petition fails and it is accordingly dismissed. It goes without saying that the stay order passed by this Court on 5.5.1997 stands automatically vacated. Now the authorities shall be free to take over the lands and deal with them in accordance with law. 14. In the facts and circumstances of the case, there shall be no order as to costs. (Birendra Prasad Verma,J) I agree. S.K. Katriar, J Patna High Court, The 15th November, 2010 Rahman/AFR (S.K. Katriar, J)