Ashok Kumar Pandey & Ors vs State Of Bihar

the appellants and Mr. Gopal Singh, learned counsel

appearing for the respondent-State.

5) The only point for consideration in this appeal is whether

the appellants have made out a case for interference in the

impugned order of the Division Bench of the High Court and

earlier orders of Revenue Authorities?

6) Learned counsel appearing for the appellants mainly

contended that after inordinate delay of 14 years, the Collector

7 was not justified in re-opening a concluded proceeding in

exercise of power under Section 45-B of the Act. He also

contended that even if the transfers made by the land holders

in the year 1972 in favour of the mortgagees are to be ignored

on the ground that the same was without obtaining prior

approval of the Collector in writing as required under Section

5(ii) of the Act, still the mortgaged lands, the possession of

which has been handed over to the mortgagees by the

mortgagor-land holders, cannot be included within the lands

of the land holders in view of the definition of "land holder" as

defined in Section 2(g) of the Act.

7) In order to appreciate the above contentions, it is useful

to refer certain provisions from the Act:

"Section 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;

"Section 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 or holding land permanently

8 settled by Government or lessee of land not resumable by Government."

"Section 9(2) - Where the land held by the land-holder includes land transferred by him in accordance with or in contravention of the provisions of clause (ii) of sub-section (1) of section 5, the land so transferred in accordance with or in contravention of clause (ii) of sub-section (1) of Section 5 shall, to the extent of the ceiling area admissible to the land holder, be deemed to have been selected by him for retention within the ceiling area, and where the total area of such land is less than the ceiling area admissible to him, the land holders shall select the balance of ceiling area from his remaining land:

Provided that where the land so transferred in accordance with or in contravention of clause (ii) of sub- section (1) of Section 3 is equal to or more than the ceiling area admissible to him and if because of the selection under sub-section (2) the land holder's homestead cannot be trained within his ceiling area, the land holder may be permitted to hold his homestead subject to a maximum limit of two acres only."

"Section 45-B - State Government to call for and examine records - The State Government [or the Collector of the district who may be authorized in this behalf]* may, at any time, call for and examine any record of any proceeding disposed of by a Collector under the Act and may, if it thinks fit, direct that the case be reopened and disposed of afresh in accordance with the provisions of the Act.

* Omitted by Act 8/97."

8) Insofar as the first contention regarding re-opening of the

case under Section 45-B of the Act is concerned, it is seen

that the District Collector, finding fault with the disposal of

the case, re-opened the case after issuance of show cause

notice and after hearing the objection of the land holders. A

9 reading of the above provisions, mainly Section 45-B, makes it

clear that after affording an opportunity to the land holder, the

Collector of the District (since omitted by Act No.8/97) or the

State Government call for and examine any proceeding and

direct the case to be re-opened and dispose of afresh. In

absence of any time limit, the action taken by the Collector in

order to ascertain the actual/eligible land holdings, cannot be

faulted with. However, the said provision mandates that

aggrieved person must be afforded an opportunity by way of

show cause notice. It is seen from the order of the Additional

Collector, the show cause notice was issued to the land holder

and they were heard on the point of draft publication prior to

passing of the order. The order further shows that the enquiry

report was received from the Circle Officer, Belsand, regarding

the partition taken place between the members of the family of

the land holders. The order further shows that after taking

into consideration all the relevant facts, the order regarding

the draft publication was passed on 10.10.1995. Accordingly,

we reject the contention of the appellants.

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9) Coming to the other contention, it is seen from the

materials that Ram Nandan Pandey and Rajendra Pandey on

11.2.1966 had mortgaged 6 Bigha 15 Katha and 6 Bigha 4

Katha 10 Dhur to Md. Kuddus and Md. Alam respectively and

both the land holders executed registered sale deeds in favour

of the mortgagees on 4.8.1972 and 2.8.1972 respectively. It

further shows that at the time of passing of the order of draft

publication, the issue had already been discussed at length

and the title of the land was not transferred. The mortgaged

land is essentially considered as the land of the land holder.

In those circumstances, the mortgage of the land in 1966

cannot be considered as a transfer prior to 9.9.1970.

Admittedly, the lands were transferred by registered sale deed

after 9.9.1970 and the title has passed only thereafter.

10) As per the provisions of Section 18 read with Section 2

(eee) of the Act, Ashok Kumar Pandey and Arun Kumar

Pandey were allowed to retain 30 acres of Class IV land each

by treating them major on 9.9.1970 and both the land holders

have inherited 10 acres each after the death of their father.

11 After coming into force of the Act, no person can hold the land

beyond the ceiling limit after the appointed day i.e., 9.9.1970.

It is further seen that Ashok Kumar Pandey has inherited 10

acres of land from his father and after the death of his father

he was holding 40 acres of land. Similar situation was there

in the case of Arun Kumar Pandey. Taking note of all these

relevant materials, the Additional Collector, by proceedings

dated 22.12.1995, arrived at a conclusion that an extent of

24.11 acres of land is left as surplus and declared the same as

surplus land.

11) The abovementioned order of the Additional Collector

was duly considered by the Collector and by order dated

3.6.1996 after finding no error, he refused to interfere and

dismissed the appeal. The revision filed against the order of

the Collector was heard by the Board of Revenue. The

Additional Member of the Board also considered the relevant

materials including the orders passed by the Additional

Collector, Collector and other documents and concurred with

the decision. In fact, the Board has permitted the appellants

12 herein to approach the Collector for exercise of option for

retaining the land of their choice in accordance with law.

12) Dissatisfied with the order of the Revenue Authority, the

appellants took the matter to the High Court. The learned

single Judge correctly concluded that transfers made on

2.8.1972 and 4.8.1972 having been made after 9.9.1970 with

or without permission be treated as lands selected by the land

holders for the purpose of retention of their lands within their

ceiling units in terms of Section 9(2) of the Act and dismissed

their writ petition. The said order of the learned single Judge

was confirmed by the Division Bench.

13) As pointed out earlier, in view of Section 45-B of the Act

and the fact that the transfers of land in favour of mortgagees

on 2.8.1972 and 4.8.1972 having been made after the notified

date, i.e., 9.9.1970 without prior permission from the

authority concerned, the same are to be treated as lands

selected by the land holders for the purpose of retention of

their lands within their ceiling units and consequently, the

orders of Revenue Authorities cannot be faulted with. It is

13 also not in dispute that the show cause notice was issued to

the appellants and thereafter after affording a further

opportunity, an order was passed determining their surplus

land.

14) In view of the statutory provisions and of the fact that the

appellants were afforded adequate opportunity before passing

the order declaring certain lands as surplus lands and all the

relevant aspects having been duly considered by the hierarchy

of revenue authorities as well as the High Court, we do not

find any valid ground for interference. Consequently, the

appeal fails and the same is dismissed. There shall be no

order as to costs.

........................................J. (Dr. Arijit Pasayat)

.........................................J. (P. Sathasivam)

.........................................J. New Delhi; (Dr. Mukundakam Sharma) May 9, 2008.

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