Kamal Krishan Rastogi & Ors vs State Of Bihar & Anr

1. These two analogous appeals arise from a land ceiling proceeding

that was reopened under Section 45-B of the Bihar Land Reforms (Fixation

of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter

referred to as `the Act').

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2. In the first round a proceeding was held against the land-holder Sarju

Madhav Rastogi in Case No. 868 of 1973-74. In that proceeding he was

shown entitled to only two ceiling units but having 205.83 acres of different

classes of land in his possession. The land holder raised many objections

against the draft statement. He disputed the classification of lands and

claimed three more units for his three sons who, according to him, were

already major on the appointed date, 9 September, 1970 and further claimed

an additional unit for his two minor grand-sons. He stated that by gift deeds

dated 28 September, 1962 he had given 21.98 acres and 21.43 acres

respectively to his two married daughters: 2.56 acres were taken in

acquisition by the State Government for construction of an irrigation canal

and 9.69 acres was voluntarily surrendered by him. He contended that all

these lands (adding to a total of 55.56 acres) were wrongly shown in the

draft statement made in his name. The revenue authorities disallowed his

objections and the matter finally came to the Patna High Court in two writ

petitions, C.W.J.C.No.1393 of 1977 (filed by Sarju Madhav Rastogi and his

sons) and C.W.J.C.No.1816 of 1977 (filed by the two daughters who

claimed the lands gifted by their father and objected to their inclusion in the

land ceiling proceeding against their father). The two writ petitions were

allowed by judgment and order dated 7 November, 1977 and the matter was 3

remitted to the Sub-Divisional Officer, Bhabua, for reconsideration of the

matter and to re-examine the land-holder's objections in light of the

observations made by the court. In the fresh round following the remand by

the High Court practically all the objections raised by the land-holder were

accepted and the proceeding was dropped by order dated 25 October, 1978

passed by the Additional Collector, L.R., Rohtas, Sasaram. The order held

and found that the land-holder possessed 8 acres of class II and 132.01 =

acres of class IV lands; he was held entitled to five units that added up to

156 acres and thus there was no surplus land in his hands.

3. The matter rested thus when the Collector, Rohtas passed an order on

8 September, 1982 reopening the proceeding in exercise of the powers

under Section 45-B of the Act. (Under Section 45-B, as it stood at that time,

the Collector of the district was equally empowered to reopen a proceeding

on going through the records of the case). It is, however, the admitted

position that the order to reopen the proceeding was passed by the Collector

without giving any notice or an opportunity of hearing to the land-holder,

Sarju Madhav Rastogi.

4. After being reopened the proceeding was renumbered as Land Ceiling

Case No. 64 of 1982. A fresh draft statement under Section 10(2) of the Act

was issued to the land-holder in which he was shown to hold 200.51 acres

of class I land and 0.11 acre of class IV land. In the draft statement he was 4

allowed four units and two additional units for the minors and the rest of the

land was declared surplus.

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.

6. The sons of Sarju Madhav Rastogi took the order of the Additional

Collector in appeal and revision and being unsuccessful before the revenue

authorities brought the matter to the High Court in C.W.J.C. No.7439 of

1989. Before the High Court it was inter alia contended that the Collector's

order reopening the proceeding was incurably bad and illegal because it was

passed without any notice to the land-holder. Consequently, all the

subsequent orders passed by the revenue authorities were equally illegal and

unsustainable. The High Court rejected the submission. One of the Judges

on the Division Bench, hearing the case, took the view that having

participated in the proceeding before the Additional Collector and then

having taken the matter in appeal and revision it was no longer open to the

writ petitioners to question the validity of the Collector's order reopening

the proceeding. In paragraph 13 of the judgment the learned judge observed

and held as follows:

"Mr. Rastogi, counsel for the petitioners submitted that no notice was given to the petitioners in connection with reopening of the land ceiling proceeding under Section 45-B of 6

the Act and as such the same was illegal and without jurisdiction. Consequently all the orders passed thereafter are also illegal and not binding on the petitioners. I do not find any merit in this submission. After proceeding was reopened, the petitioners instead of challenging the same appeared and submitted to the jurisdiction of the court and participated in the proceedings and as such they are estopped from challenging the same at a later stage."

(emphasis added)

The other learned Judge constituting the bench agreed with the view taken

by the first Judge but found the issue sufficiently important to give his own

reasons for rejecting the submission of the writ petitioners. The second

Judge accepted the legal position that the reopening order was quite illegal

since it was passed without any notice to the land holder. In paragraph 17 of

the judgment, the other Judge observed as follows:

"The precise question is whether the order of reopening of the proceeding dated 8.9.82 being illegal, about which there can be little doubt as this was done without issuing notice to the landholder, the subsequent orders passed by the Additional Collector are also illegal and without jurisdiction."

(emphasis added)

Nevertheless, the learned Judge held, the illegality of the reopening order

would not affect the subsequent orders passed by the revenue authorities.

The learned Judge observed that even though an order might be without

jurisdiction the court would decline to interfere in case the setting aside of

that order should lead to reviving another bad and illegal order. In support 7

of the principle he relied upon a decision of this Court in Maharaja

Chintamani Saran Nath Shahdeo vs. State of Bihar, (1999) 8 SCC 16. We

fail to see the application of the Supreme Court decision or the principles

invoked by the learned Judge as it is not clear to us what other illegal order

might have been revived as a result of setting aside the reopening order

passed by the Collector. It surely cannot be the order by which the

proceeding was earlier dropped because the law mandates that before that is

held to be bad and reopening is ordered the land-holder must be given an

opportunity to defend that order. In other words, the earlier order dropping

the proceeding cannot be said to be bad prima facie and declared as such

unilaterally. That being the position there is no question of an illegal order

getting revived as a result of setting aside the order to reopen the proceeding

that was admittedly passed in an illegal manner.

7. The learned judge then proceeded to examine the different natures

and shades of jurisdiction and cited a number of decisions to elaborate the

point. But at the end an erudite discussion he also, like the first Judge, fell

back on the argument that it was no longer open to the writ petitioners to

question the validity of the reopening order since they had fully participated

in the proceeding after it was reopened. In paragraph 22 of the judgment the

learned judge observed as follows:

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"Section 45-B empowers the State Government or the Collector of the district authorized in that behalf at any time to call for and examine any record of any proceeding disposed of by Collector under the Act and, if it thinks fit, to direct that the case be reopened and disposed of afresh in accordance with the provisions of the Act. As held by this Court, it is mandatory to issue notice and give an opportunity of hearing to the landholder before any order for reopening a concluded proceeding is passed. Thus, where notice is not given the order has to be treated as illegal and, within the extended meaning of the term, as per the aforequoted observation of the Supreme Court, also without jurisdiction. But that does not mean that on that ground alone the subsequent orders would also become illegal, particularly when the petitioner participated in the proceedings, thus, acquiescing in the jurisdiction of the Additional Collector which he undisputedly possessed."

(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.

9. As noted above, the order of the Additional Collector was also

unsustainable for the additional reason that it was passed against a dead

person.

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.

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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.

....................................J.

[Tarun Chatterjee]

...................................J.

[Aftab Alam]

New Delhi,

September 3, 2008.