Kamal Krishan Rastogi & Ors vs State Of Bihar & Anr

5. What happened from this stage is important for the purpose of the case and we accordingly state the facts exactly as they appear in the order of the High Court coming under appeal. The proceeding was transferred before the Additional Collector for disposal. On a notice issued to him the land-holder, Sarju Madhav Rastogi appeared before the additional Collector on 30 April, 1984 and filed a petition praying for time to file objections. Thereafter, he neither filed any objection nor ever appeared before the court till his death on 27 January, 1985. It is undeniable that after the death of the land-holder no steps were taken for substitution of his heirs in the proceeding nor any notice was sent to the heirs of the deceased Sarju Madhav Rastogi. On 6 February, 1986, the Additional Collector sent a registered notice in the name of Sarju Madhav Rastogi (who was by then dead) fixing the hearing of the case on 5 February, 1986. No one appeared in response to the notice and apparently no hearing was done on that date. Then on receipt of the Circle Officer's report on 25 August, 1987, the Additional Collector sent another registered notice fixing the hearing of the case on 2 November, 1987. This notice too was addressed to Sarju Madhav Rastogi. Finally, on 14 January, 1988 the Additional Collector passed orders holding that the land holder was entitled to 78 acres of class I land and the 5 balance 130.56 acres of class I land was declared as surplus. The order found and held that no gift was executed within the period permitted under the Act and that in the earlier proceeding 43.41 acres of land was wrongly excluded on the plea of having been given in gift by the land-holder to his daughters.

(emphasis added)

8. We are unable to agree with the view taken by the High Court. Whether or not the land holder's participation in the proceeding before the Additional Collector would cure the illegality of the reopening order passed by the Collector is a debatable issue but we see that on admitted facts that larger issue does not even arise in the case. It would be hardly fair and just to hold that the land-holder took any part in the proceeding after it was reopened by the Collector's order. As seen above, on notice being issued by the Additional Collector, Sarju Madhav Rastogi appeared before him on 30 April, 1984 and prayed for time for filing objections. He then never appeared and a few months later died on 27 January, 1985. He did not file any objection before the Additional Collector. Had he filed one, he might 9 have taken the precise objection that the proceeding was without jurisdiction because the reopening order was itself illegal and without jurisdiction. Admittedly, after the death of Sarju Madhav Rastogi his heirs were neither substituted nor they were given any notice by the Additional Collector. They did not appear before the Additional Collector. What is significant here is to note that the order of the Additional Collector was made against a dead person and for that reason alone it was unsustainable. It was only after the order of the Additional Collector that the heirs of Sarju Madhav Rastogi came into picture when they tried to challenge the order on many grounds including the one that the order was passed in a proceeding that was held on the basis of the Collector's order that was illegal and without jurisdiction. It is, therefore, quite wrong to say that it was not open to the land holders to question the validity of the reopening order since they had participated in the proceeding after its reopening.

10. For all these reasons we are satisfied that the judgment and order passed by the High Court as well as the orders of the revenue authorities are unsustainable in law. The appeals are allowed and the orders of the High Court and the revenue authorities are set aside.

11. This order, however, shall not stand in the way of the State Government in calling and examining the records of the case and on being satisfied that the materials so warrant to pass appropriate orders under Section 45-B of the Act.