IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5256 of 2002 Mahanth Braj Bihari Das Chela of Late Mahanth Hariballbh Das, Sewait of Dumri Asthan Sri 108 Radha-Krishnajee and Hanumanjee, Resident of Village Dumri, Police Station Rahika, District Madhubani. --------- Petitioner Versus 1. The State of Bihar. 2. The Collector, Madhubani, District Madhubani. 3. The Secretary, Department of Land Reforms Government of Bihar, Patna. --------- Respondents For the Petitioner : Mr. Ajay Kumar Thakur, Advocate For the State : Mr. Lalit Kishore, A.A.G.-III. Mr. Ajay Kumar S.C. (Ceiling) P R E S E N T HON'BLE JUSTICE MIHIR KUMAR JHA ----------- Mihir Kr. Jha, J. Heard the parties. In this writ application petitioner has assailed an order contained in notification no. 5 dated 18.6.1999 (Annexure-1) passed by the D.C.L.R. Madhubani, whereby and whereunder, it has been held that in view of amendment in section 29 (2) (a) (ii) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act) land measuring 8.21 acres were being acquired under section 15 (1) of the Act. Facts which are not in dispute is that a trust was created in village- Dumri being “Dumri STHAN Sri 108 Radha Krishnajee and Hanumanjee, Trust” for the deities installed in a temple village Dumri in the district of Madhubani and a ceiling case under the Act also in the name of Sri Hariballabh Das (since dead), being mahanth of the 2 trust vide Ceiling case no. 1 of 1973-74 had been initiated which was finally concluded by the order of the Dy. Collector, Land Reforms, Madhubani vide his order dated 25.3.1985, in pursuance of which publication under section 11(1) of the Act was also made on 12.4.1985 which was published in the district gazette on 30th April, 1985, whereby and whereunder, 8.21 acres of land were exempted under section 29 of the Act. It is the case of the petitioner that in absence of any appeal or revision against the aforesaid order of the D.C.L.R. dated 25.3.1985 the same became final but after a gap of 14 years, the Collector of Madhubani district without initiating a fresh proceeding and without giving any notice to the Mahanth or to the petitioner, who claims to be successor Mahanth of Dumri Asthan Sri 108 Radha Krishnajee and Hanumanjee Trust, had sought to review the order granting exemption of 8.21 acres allowed in favour of the deities by passing the impugned order dated 18.6.1999. The petitioner, who claims to be mahanth/ sebait of the Trust and its deities, the land holder has accordingly assailed the aforementioned notification dated 18.6.1999 passed by the Collector of Madhubani district on the following grounds namely:- I. The impugned order and notification dated 18.6.1999 was in violation of the 3 principles of natural justice, in as much as no notice was given either to the then Mahanth Hariballabh Das who is said to have died on 19.6.2001 or to the petitioner who is successor in office of Mahanth/ sebait of the aforesaid trust ; II. There is no provision in the ceiling act which would authorize the Collector of the district to reopen the concluded proceeding because the power of reopening of concluded ceiling proceedings under section 45(B) of the Act having been amended by Act 8 of 1997, such power of reopening if at all permissible could have been exercised by the State Government alone and not by the Collector of the district. III. The ground of such cancellation of exemption for the deities to the extent of 8.21 acres being the amended provisions of the Act, Act 8 of 1997, was also wholly erroneous, in as much as, Act 8 of 1997 was never given retrospective effect so as to affect the vested rights accrued in favour of the land holder on account of conclusion of the ceiling proceedings prior to enforcement of Act 8 of 1997 ; A counter affidavit has been filed on behalf of the respondents which has been sworn by the Additional Collector, Madhubani, wherein the facts mentioned by the petitioner as with regard to reopening of the ceiling proceeding by the 4 Collector of the Madhubani district without notice and/or without giving opportunity of hearing to Late Hariballabh Das, the then mahanth or to the petitioner has not been controverted. In fact, the respondents in their counter affidavit have also not questioned the earlier order of the D.C.L.R or the fact that the ceiling proceeding as against the deities through its mahanth had stood concluded way back in the year 1985. The impugned order has been sought to be justified by the Respondents only in view of the amendment in the Act. Mr. Ajay Kumar Thakur, learned counsel appearing on behalf of the petitioner has referred to the order dated 25.3.1985 to contend that when the ceiling proceedings against the deities through mahanth was initiated in a Ceiling Case No. 1 of 1973-74 the total land under consideration in the ceiling case was 101.09 acres, out of which the mahanth had made voluntary surrender of 15 acres and for the remaining 86.09 acres the authorities under the Ceiling Act had found 5.22 acres of land to have individual interest of the recorded tenants and accordingly it was only 80.87 acres which had become subject matter of ceiling case No. 1 of 1973-74. In the draft publication under section 10(2) of the Act, the land holder, one unit of 30 acres and rest 50.87 acres was found to be surplus. It was against this draft publication under section 10(2) of the Act that an objection was filed by the 5 Mahanth on behalf of the deities under section 10(3) of the Act on 13.7.1984 which was considered and disposed of by the order dated 25.3.1985. Learned counsel, in fact, has relied on the finding of the D.C.L.R who in his order had exempted 8.21 acres for the deities by recording that “bl rjg dwy 8-21 ,dj gh rFkk Bkdqjckjh esa lgu tehu dk 108 jk?kk d~”.k o guqeku th dh tehu ekuh tkrh gSa k“ He has also referred to the concluding portion of the order where detailed calculation of the entire land has been given and the area sought to be acquired as surplus land had been found to be 45.46 acres. Counsel for the petitioner has also referred to the final publication made in terms of section 11 of the Act, from which also it is absolutely clear that the area and description of the land exempted under section 29 of the Act was 8.21 acres and the area and description of the land which was found to be surplus and fit to be acquired under section 15 of the Act was 45.46 acres only. This notification dated 12th April, 1985 of the D.C.L.R. under section 11 of the Act, being the Collector under the Act, was published in the official district gazette of Madhubani district dated 30th April, 1985 and from perusal of the order dated 14.8.1985 it also becomes clear that when no appeal or revision against the said order of the D.C.L.R dated 25.3.1985 was filed within the 6 statutory period, the records were transmitted to the office of the District Magistrate-Cum-Collector of Madhubani who vide his order dated 14.8.1985 had held that as there was no appeal or revision, steps were required to be taken for acquisition of 45.46 acres of land under section 15 of the Act. The aforesaid facts having been not controverted by the State and its officials in the counter affidavit, this Court has no hesitation in holding that the ceiling proceedings arising out of Ceiling case No. 1 of 1973-74 initiated against the deities through Mahanth Hariballabh Das the Mahanta had become final on 14.8.1985. It is however to be seen as to whether there was any power vested in the Collector of the district to pass the impugned order on 18.6.1999? In this respect one must take notice of power of the Collector of the district under the ceiling act as it existed on the date of the impugned order, i.e. 18.6.1999. From bare reference of section 45 (B) of the Ceiling Act as it stood on 18.6.1999 it would become clear that the power of reopening of a concluded ceiling proceeding no longer remained vested in the Collector of the district. It has to be noted here that earlier prior to enactment of the amended Act 8 of 1997, both the State Government or the Collector of the district had jurisdiction to call for any records or examine any proceeding disposed of by the Collector under the 7 Act and also order for reopening of the proceeding for its fresh disposal in accordance with the provisions of the Act, but the State Legislature had amended the Ceiling Act by Act 8 of 1997 and such power of reopening therein was vested exclusively in the State Government alone. That being so, the Collector of the district by the impugned order could not have reopened a concluded ceiling proceeding on his own and even if he had found any reason for reopening of the proceeding all that he could have done was to refer the matter to the State Government which, as noted above, after enforcement of the amended Act 8 of 1997 was the sole repository with regard to exercise of power for reopening of the ceiling proceeding. Accordingly, the impugned order must be held to be without jurisdiction, in excess of powers conferred in the Collector of the district. This Court, in fact, has no difficulty in accepting the submission of counsel for the petitioner that the impugned order even otherwise cannot be sustained, in as much as, the said order of the Collector of the district dated 18.6.1999 was passed admittedly without any notice to the then Mahanth Hariballabh Das and/or given any opportunity of hearing. This aspect of the matter has been categorically asserted by the petitioner, who is successor of the Mahanth in paragraph 12 of the writ application. Such clear and categorical 8 statement of the petitioner of violation of principles of natural justice has been dealt in the counter affidavit in paragraph- 14 wherein all that has been said that the statement made in paragraph no. 12 of the writ petitioner is not correct. It is unfortunate that such a bald statement as with regard to notice and/or opportunity of hearing has been dealt by the respondent in such a casual manner. By now it is well settled that the averment in a writ application or in the counter affidavit in case if it is capable of being supported by the documents must be supported by filing of those documents. Reference in this connection may be made to the case of Bharat Singh & Ors vs. State of Haryana & Ors, reported in AIR 1988 S.C. 2181 = (1988)4 S.C.C. 534, wherein the Apex Court in paragraph 12 has laid down as follows: “13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed 9 to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter- affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit.“ (underlining for emphasis) It was thus imperative on the part of the respondents to produce any proof in support of the bald statement in the counter affidavit that as a matter of fact the petitioner and/or his predecessor in office Late Mahanth Hariballabh Das was actually given notice and/or opportunity of hearing. In absence thereof this Court will have to proceed that there was no notice and/or opportunity of hearing to the petitioner or his predecessor in office and the statement made in paragraph 12 of the writ application must be held to be correct. Mr. Lalit Kishore, learned A.A.G.III in fact after taking instruction has also admitted that the Collector of the district had never issued any notice and/or had even extended any opportunity of hearing to the then Mahanth Late Hariballabh Das or to the petitioner before passing the impugned order. In that view of the matter, the impugned 10 order must be held to be in violation of the principles of natural justice. It has to be found from the tenor of the impugned order that exemption already allotted to the extent of 8.21 acres of land for the deities by the D.C.L.R. in his order dated 25.3.1985 which was sought to be recalled or reviewed by the Collector of the district by the impugned order and as such he was under obligation to issue notice and/or afford opportunity of hearing before passing the impugned order. The vested right of holding the land to the extent of 8.21 acres land for the deities could not have been taken away by the Collector of the district even without following the principles of natural justice. As a matter of fact, the Collector of the district who had already been divested his power of reopening of the concluded ceiling proceeding in terms of the amendment made in section 45 (B) of the Act, in view of the amended Act 8 of 1997 could not have been even reopened the proceeding without notice to the Mahanth Hariballabh Das. Had the Collector of the district even remained vested with power to reopen a concluded ceiling proceeding, as was vested in him prior to amendment in the Act in 1997, he could not have exercised such power for reopening a concluded proceeding without notice to the land holder as was held by the Court in a judgment of the Division Bench in the case of „ 11 Narsing Pd. Sah Vs. State of Bihar‟ reported in 1981 B.B.C.J. 324 and also in the case of „Jamuna Rai Vs. State of Bihar & Ors‟ reported in 1984 B.B.C.J. 487, laying down a law that the order of reopening of concluded ceiling proceeding either by the State Government or the Collector under section 45 B of the Act without issuing notice to the landholder or to any person concerned going to be affected was bad only on the ground of violation of principles of natural justice. It has, therefore, to be held that the impugned order cannot be sustained also on the ground of violation of principles of natural justice. This Court, having already held in the preceding paragraphs that the impugned order passed by the Collector was both without jurisdiction as also violation of principles of natural justice, was in fact not required to go into the larger question as with regard to the alleged justification and/or ground on which the Collector had passed the impugned order i.e. the deletion of sub-clause (ii) of clause (a) of sub-section (2) of Section 29 of the Act by Section 2 of the Amending Act (Bihar Act 8 of 1997). Keeping, however, in view the submissions made by both the parties as also the earlier order of this Court dated 2.5.2002, this Court has gone into the aforementioned question of retrospectivity 12 of the Amending Act as a possible ground for justification of the impugned order. It would be found that originally in Section 29 under Chapter- 11 of the Act, exemption was contemplated in the following terms:- “29. Exemptions. – (1)(a) The provisions of this Act shall not apply to – (i) land in possession of the Central Government or State Government; (ii) land in possession of local authorities or of Gram Panchayats Established under the Bihar Panchayat Raj Act, 1947 (Bihar Act VII of 1948); (iii) land vested in the Bhoodan Yagna Committee established under the Bihar Bhoodan Yagna Act, 1954 (Bihar Act XXII of 1954); (b) The provisions of section 5 and Section 28, shall not apply to - (i) lac-brood farms operated by the Indian Lac Cess Committee constituted under Section 4 of the Indian Lac Cess Act, 1930 (24 of 1930); (ii) 1[****] (iii) 2[****] (iv) such extent of land held on the date of commencement of this Act, by educational institutions, Universities, Research Councils or Research Institutes recognized by the State hospitals, maternity homes and Orphanages, as may be notified by the State Government in this behalf, so long as they continue as such;] [(v) such extent of land held on the date of commencement of this Act by such public or charitable bodies or religious institutions of public nature, running educational institutions, hospitals, maternity homes and Orphanages, as may be notified by the State Government in this behalf, so long as they continue as such; 4[(vi)land required in connection with any other non- agricultural or Industrial purpose, to the extent approved by Government, so long as they continue as such; (vii) any land awarded for gallantry in the First World War or in the Second World War or subsequently: Provided that the exemption under this clause shall remain in force only for the life time of the pension to whom the award is made. 13 [(viii) Land held by (a) banking companies as defined in Section 5 of the Banking Regulation Act, 1949. (b) The State Bank of India constituted under the State Bank of India Act, 1955. (c) Subsidiary Banks as defined in the State Bank of India (Subsidiary Bank)Act, 1959. (d) Corresponding new Banks constituted under the Banking Companies (Acquisition and Transfer of Undertaking)Act, 1970. (e) the Co-operative Banks. (f) any other financial institution notified by the State Government as bank for the purposes of this Act.] (2)(a) The State Government may, by notification in the official Gazette, exempt from the operation of Section 5- (i) sugarcane farms owned and operated on the date of commencement of the Act, by sugar factories holding a licence under any law relating to Sugar factories for the time being in force to such extent as may be determined in the prescribed manner to be necessary for the production of sugarcane seeds but in no case exceeding one hundred acres; (ii) So much of land not exceeding fifteen acres of Class I land or equivalent area of other classes owned and held under personal cultivation by any religious institution of a public nature on the date of the commencement of the Act as may be determined by the Collector in the prescribed manner to be necessary for the purposes of performing religious rites and maintenance of the religious institutions”.] (Underling for emphasis) (b) The exemption under this sub-section shall be valid only so long as the purpose mentioned therein continue to be carried out.” By the Amending Act(Bihar Act 8 of 1997) which came into force after receiving assent of the President of India on 12.3.1997 and published in the Bihar Gazette on 27.3.1997, the aforementioned sub-section 2 was amended by way of deletion of sub-clause (ii) of clause (a) of sub-section (2) of Section 29 along with deletion of Section 37 14 altogether and also deletion of certain portion of Section 45-B in the following terms:- “1. Short title and commencement and extent- (1) This Act may be called the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land0 (Amendment) Act, 1995. (2) It shall come into force at once except Section 2 of the Act, which shall be deemed to have come into force with effect from appointed date. (3) It extends to the whole of the State of Bihar. 2. Amendment of Section 29 of the Bihar Act 12, 1962 – In the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus) Act, 1961 (Bihar Act 12, 1962) (hereinafter referred to as the said Act), sub-clause (ii) of clause (a) of sub-section (2) of Section 29 shall be deleted and shall always be deemed to have been deleted. 3. Deletion of Section 37 of Bihar Act 12, 1962 – In the said Act, Section 37 shall be deleted. 4. Amendment of Section 45-B of Bihar Act 12, 1962- In the said Act in Section 45-B, after the words “The State Government ”the words or the Collector of the district, who may be authorized in this behalf” shall be deleted. 5. Repeal and Savings- (1) The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Second Ordinance, 1995 (Bihar Ordinance No.27, 1995) is hereby repealed. (2) Notwithstanding such repeal anything done or any action taken in exercise of any power conferred by or under the said Ordinance shall be deemed to have been done or taken in exercise of the powers conferred by or under this Ordinance as if this Ordinance were in force on the date which such thing was done or action taken.” From the reading of the underlined portions of the original and the amended provisions of Section 29(2)(a)(ii) of the Act, it would be clear that originally 15 acres of class-1 land or equivalent area of other class, owned and held under the personal cultivation by any religions institution of a public cause on the date of commencement of the Act as could be determined by the Collector in the prescribed manner to be 15 necessary for the purposes of performing religious rites and maintenance of the religious institutions was permissible but such concept was altogether abolished in view of the amending act. The question, however, would be as to whether those religious institutions which had already been exempted land found to be necessary for the purposes of performing religious rites and maintenance of religious institutions could be subjected to automatic effect of wiping out of the earlier exemption only because in the amending act, such deletion in sub-cause (ii) of clause (a) of sub-section 2 of section 29 was deleted by bringing into force with effect from appointed day under section 2(a) of the original act i.e. 9th September, 1970? In other words, could the Collector of the district taking advantage of the amended provisions of Section 29(2)(a)(ii) of the Act, have wiped out the effect of the earlier order dated 25.3.1985 passed by the Collector under the Act allowing exemption of 8.2 acres of land for deity of Radha- Krishnajee and Hanumanjee as is the content and spirit of the impugned order dated 18.6.1999 ?. If the literal interpretation of the aforementioned provisions of amending act is given effect to, it would be evident that each and every exemption allowed in favour