Dadan Ram & Ors vs State Of Bihar & Ors

3) The Ceiling (surplus) proceedings bearing Ceiling Case No. 149 of 1973-74 were initiated against Nand Kishore Tiwari, respondent No.8 herein and a notice to the said effect was issued to him under Section 6(1) of the Act in Form LC-1 as prescribed under Rule 5 under the said Act and respondent No.8 submitted a return under the said Act in respect of his entire land, total 19 acres 71 decimals. The aforesaid land was found to be owned and possessed by the family as defined in Section 2(ee) of the said Act i.e. land holder, respondent No.8, his wife Sumitra Devi and their two minor children as on appointed day i.e., 9.9.1970 and ultimately the authority concerned by holding 15 acres of class I lands was permitted to be retained by respondent No.8 under Section 5(1) and the remaining 4.64 acres of land were declared as surplus. Final publication of draft statement under Section 11(1) of the said Act was accordingly made and subsequent to that a notification under Section 15(1) was also issued on 15.1.1993. Against the said notification, respondent No.8 filed an appeal under Section 30(1)(b) of the Act before the Commissioner, Patna Division, Patna bearing Ceiling Appeal No. 160 of 1994. The Commissioner dismissed the appeal on merits. Dissatisfied therewith, a Ceiling Revision was filed before the Member, Board of Revenue, Bihar, Patna which was also dismissed. Writ Petition filed for quashing the earlier orders was dismissed by the High Court. Subsequently another writ application which was filed in the High Court by respondent No.8 herein and the same was disposed of with a direction to raise the matter before the Collector of the District within two weeks from the date of the receipt of the order. However, no such application was filed by respondent No.8 before the District Collector, therefore, after the expiry of said such period, the High Courts order became infructuous. The wife of respondent No.8, namely, Sumitra Devi filed an application before the District Collector for re-opening the case under Section 95-B of the Ceiling Act and the same was dismissed. Challenging the order of the District Collector as well as the orders of the appellate Court which was passed in the appeal filed by respondent No.8 and the order passed in Revision application, an application under Section 32 of the Act was also filed before the Member, Board of Revenue, Bihar and the same was finally disposed of on 12.7.1995 with a direction that the Collector shall ascertain the allegation. After final publication under Section 15(1) of the Ceiling Act, the aforesaid excess land i.e. 4 acres 64 decimals was distributed to 8 down-trodden people of the village and separate parchas were issued in name of the aforesaid eight persons and the possession was also delivered to them. The District Collector transferred the case to the Court of Additional Collector who re-opened the case, conducted the impugned proceedings in question and held that the land holder has no excess land. Accordingly, he set aside the notification issued under Section 15(1) of the Ceiling Act. Respondent No.5 before disposal of the application under Section 45-B of the Ceiling Act, did not issue notice nor opportunity was given to the appellants with whom the aforesaid lands were in possession.

8) If we accept the first contention of the learned senior counsel for the appellants, namely, notice or opportunity of being heard in a proceeding under Section 45-B of the Act, there is no need to consider the other contentions. It is seen from the materials placed, after proper notice, the land holder and respondent No.8, and his wife - Sumitra Devi and their two minor children on the appointed day, i.e., 09.09.1970 were permitted to retain 15 acres of Class-I lands and the remaining 4.64 acres of land were declared as surplus. Based on the same, a notification under Section 15(1) was issued on 15.01.1993. The appeal as well as the revision filed against the same was dismissed. The writ petition filed by the 8th respondent was also dismissed. When special leave petition was filed against the order of the High Court, the same was disposed of with a permission to the applicant to raise the matter before the Collector of the concerned District. It is brought to our notice that though no such petition was filed by the 8th respondent, subsequently his wife - Sumitra Devi - 9th respondent herein has filed an application before the District Collector, Bhojpur 4th respondent-herein for re- opening the case under Section 45-B of the Act. The said application was dismissed by the District Collector and subsequent to that an application under Section 32 of the said Act was filed before the Member, Board of Revenue, Bihar challenging the entire order of the District Collector. The same was finally disposed of on 12.07.1995 with a direction to the Collector to consider the grievance of Sumitra Devi. It is further seen that the District Collector, Bhojpur transferred the case to the Court of Addl. District Collector who re-opened the case and found that the land holder has no excess land and notification issued under Section 15(1) of the Act was to be set aside. Questioning the said proceedings, the appellants filed CWJC No. 12036 of 1996 before the High Court, Patna. Learned Single Judge, who heard the matter, dismissed the same by order dated 24.11.1997. Dissatisfied with the said order, an appeal was filed before the Division Bench in L.P.A. No. 1545 of 1997 which was also dismissed affirming the order dated 24.11.1997 passed by the learned Single Judge.

12) In view of the same, we are unable to agree with the observation of the Division Bench since the appellants had the knowledge of the order of status quo passed by the District Collector on 24.08.2005, the rules of natural justice were substantially complied with. We have already held that prior to re-opening, notice to all the parties including person(s) in possession was mandatory. It is not in dispute that the case was re-opened and earlier decision was reversed holding that there was no excess land without issuing notice to the appellants. Section45-B empowers the State Government to re-open the case which was already been disposed of by the Collector under the Act. After re-opening the case, the State Government is to dispose of the matter afresh in accordance with law. It is, therefore, clear that before passing any order in a concluded issue, the authority is expected to satisfy the minimum requirement of principles of natural justice by issuance of notice and hearing. Further, the said power to re- open has to be exercised sparingly and for adequate reasons and the proceeding concluded earlier cannot be re-opened merely for verification whether the orders were correctly passed. The order of re-opening should be passed after hearing the parties concerned and where an order of re- opening the case had been passed without hearing the party against whom it was passed, the order suffers with legal infirmity and liable to be quashed. The reason behind in issuing a show cause notice is precisely very clear in view of the fact that a proceeding once concluded after a regular hearing should not be ordered to be re-opened suo motu by the authorities concerned in a capricious manner and reasonableness requires that parties to be affected by the same should be heard.

13) In this view of the matter, we are of the view that the orders impugned suffer from the infirmity of not giving reasonable opportunity to the appellants before reopening the proceedings. The order, therefore, is liable to be set aside. Under these circumstances, the order of the High Court both learned Single Judge and the Division Bench are set aside. However, the State Government is free to pass fresh order if they so desire under Section 45-B of the Act after affording opportunity to all the parties including the appellants herein. Civil appeal is allowed to this extent. No costs.