Pitambar Singh & Ors vs State Of Bihar & Ors

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8865 OF 2010 (ARISING OUT OF SLP (C) NO. 6950 OF 2007)

Pitambar Singh & Ors. ... Appellants

Versus

State of Bihar & Ors. ... Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. A judgment dismissing the Letters Patent Appeal

and confirming the order of the Single Judge has fallen

for consideration in this appeal. The learned Single

Judge of the High Court had dismissed the Writ

Petition. By order dated 31.12.1983 passed by the Sub-

Divisional Officer in Ceiling Case No. 15 of 1973, the

objection filed under Section 10(3) of the Bihar Land

Reforms (Fixation of Ceiling Area and Acquisition of

Surplus Land) Act, 1961 (hereinafter referred to as

`the Ceiling Act') was rejected. This order was

confirmed by the District Collector vide order dated

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21.5.1984 and was further confirmed in the revision by

Resolution dated 22.5.1986 passed by the Additional

Member, Board of Revenue. The appellants moved the

High Court by way of a Writ Petition being C.W.J.C.

No.3824 of 1986, which was dismissed by the learned

Single Judge. The appellants then filed a Letters

Patent Appeal (LPA); however, in the LPA, all the

aforementioned orders were confirmed.

3. In order to appreciate the contentions raised by

Shri Nagendra Rai, learned Senior Counsel appearing on

behalf of the appellants, it is necessary to go into

the facts of the case.

4. One Bhagwati Singh was the original land holder.

His son was Pitambar Singh (appellant No. 1 herein) and

Pitambar Singh has two sons, namely, Rabindra Kumar

Singh (appellant No. 2 herein) and Jitendra Kumar

Singh. Bhagwati Singh was alive on 9.9.1970, which is

the relevant date under the Ceiling Act. Pitambar

Singh (appellant No.1) and his wife and sons were

living with Bhagwati Singh. They were members of a

Mitakshara joint family and were having a total family

holding of 33.95 acres of class-II land. The ceiling

fixed by the Ceiling Act is 18 acres in respect of such

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land. The proceedings were started vide Ceiling Case

No. 15 of 1973 against Pitambar Singh (appellant No.

1); since, by that time, Bhagwati Singh, the father,

had died. Still Pitambar Singh (appellant No. 1) also

had a major son, Ravindra Singh. A draft statement was

made and published showing that Pitambar Singh

(appellant No. 1) was entitled to retain only 18 acres

of land and thus, the family was holding 15.95 acres of

land as surplus land. On the service of the draft

statement, Pitambar Singh (appellant No. 1) filed

objections under Section 10(3) of the Ceiling Act. It

was pointed out that whatever may be the status on the

relevant date under the Ceiling Act, when the

proceedings were taken, Rabindra Kumar Singh (appellant

No. 2) was major on 9.9.1970 also and as such, he also

was entitled to his own share and he could not be held

as a member of family of Pitambar SIngh. This

objection was rejected by the order dated 31.10.1975.

An appeal was preferred against this order, wherein it

was decided that the appellants should be treated as

two families. However, this order was recalled and the

appeal filed before the appellate authority came to be

dismissed by the order dated 30.6.1976. A revision was

filed against this order, which stood allowed by the

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order dated 10.5.1977, whereby the matter was remanded

to the appellate authority for the purpose of

determining the age of Rabindra Kumar Singh (appellant

No. 2 herein) as on 9.9.1970. After the remand, the

appellate authority, by its order dated 15.12.1977,

recorded a finding that Rabindra Kumar Singh (appellant

No. 2 herein) was major on 9.9.1970 and accordingly, he

was entitled to be treated as a separate family from

that of his father Pitambar Singh (appellant No. 1).

It is very significant to note that this order was

never challenged by the State by way of a revision and

the said order attained the finality. However, a draft

statement under Section 11(1) of the Ceiling Act was

finally published and gazetted under Section 15(1) of

the Ceiling Act, on the basis of the old orders no

draft statement was published after passing of the

order dated 15.12.1977, which ought to have been

published noting the change made by the appellate

authority, whereby Rabindra Kumar Singh (appellant No.

2) was treated to be a major and that there was no

surplus land in between two families, namely, of

Pitambar Singh (appellant No. 1) and of his son

Rabindra Kumar Singh (appellant No. 2).

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5. It is apparent that on 9.4.1981, the amended Act

came into force being Bihar Land Reforms (Fixation of

Ceiling Area and Acquisition of Surplus Land)

(Amendment) Act, 1982 (hereinafter called `the

Amendment Act'). Two new Sections were introduced,

they being 32A and 32B. They were as under:-

32A. Abatement of appeal, revision, review or

reference:

An appeal, revision, review or reference other than

those arising out of orders passed under Section 8 or

Sub-Section (3) of Section 16 pending before any

authority on the date of commencement of the Bihar Land

Reforms (Fixation of Ceiling Area and Acquisition of

Surplus Land) (Amendment) Act, 1982, shall abate:

Provided further that such appeal, review or

reference arising out of orders passed under Section 8

or sub-Section (3) of Section 16 as has abated under

Section 13 of Bihar Land Reforms (Fixation of Ceiling

Area and Acquisition of Surplus Land) (Amendment)

Ordinance, 1981 (Bihar Ordinance No. 66 of 1981), shall

stand automatically restored before the proper

authority on the commencement of this Act.

32B. Initiation of fresh proceeding:

All those proceedings, other than appeal, revision,

review or reference referred to in Section 32A pending

on the date of commencement of the Bihar Land Reforms

(Fixation of Ceiling Area and Acquisition of Surplus

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Land) (Amendment) Act, 1982, and in which final

publication under sub-Section (1) of Section 11 of the

Act as it stood before the amendment by aforesaid Act,

had not been made, shall be disposed of afresh in

accordance with the provisions of Section 10 of the

Act.

Very surprisingly, after coming into force of the

Amendment Act, a fresh draft statement was issued. The

objection was raised that such draft statement should

never have been issued. However, a re-determination

was taken under Section 4A of the Ceiling Act as

inserted by the Amendment Act and as such, a whole

exercise was taken and it was enquired whether there

was any transfer of land made in between 22.10.1959 and

9.9.1970 or thereafter. In fact, in case of the

appellants, no such transfer was effective in between

those two dates. However, the objection filed to the

said draft statement was rejected by the order dated

31.12.1983, whereby again the ceiling was re-determined

holding the family of the appellants to be one family.

This order was confirmed up to the Tribunal's order.

These orders were challenged before the learned Single

Judge, who, though noted that there was a final order

passed on 15.12.1977 holding that the appellants were

entitled to be counted as two families, yet held that

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because of the language of Section 32B, the State

Government was entitled to reopen the case. The

learned Single Judge took the view that there was

already a final publication made under Section 11(1) of

the Ceiling Act prior to the passing of the order of

remand by the revisional authority and the same was not

quashed by the appellate authority. The learned Judge,

therefore, took the view that the said old

notification/publication would be deemed to be

operative on the date of coming into force of the

provisions of Section 32B of the Amendment Act. The

learned Judge went on to compare the matter with the

civil cases relating to partition. The learned Judge

also took a view that in view of the unequivocal

language of Section 11(1) of the Ceiling Act, the

authority was required to make final publication of

draft statement in accordance with the order passed by

it upon the objections, irrespective of the fact

whether, according to the said order, the land holder

was holding any surplus land or holding land within the

ceiling limit specified under law. The authority in

such case where the objection by the land holder is

upheld has to make the draft statement and final

publication has to be made to the effect that the land

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holder does not possess surplus land. However, in

those cases, where objection is either partially

allowed or it is found that the land holder is

possessing surplus land, it is incumbent upon the

concerned authority to make final publication of the

draft statement by making alteration therein and

showing that the land holder was not possessing any

surplus land. The learned Single Judge noted that no

such step was taken for the final publication inspite

of passing of the order dated 15.12.1977. The learned

Judge, therefore, took the view that since there was no

final publication of draft statement under Section

11(1) of the Ceiling Act prior to coming into force of

the provisions of Section 32B of the Amendment Act, the

authority was justified in disposing of the proceeding

afresh in accordance with the provisions of Section 10

of the Ceiling Act and passing final order upon the

objection filed under Section 10(3) of the Ceiling Act

filed on behalf of the appellants. It is very

significant to note that the learned Single Judge did

not, in any manner, go into the merits of the matter

nor did he give effect to the order dated 15.12.1977,

where it was unequivocally held that the land holders

were entitled to be treated as two families. It was

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pointed out during the letters patent appeal that the

whole course undertaken was completely illogical and

unjust. Relying on Section 11(1) of the Ceiling Act,

it was reiterated before the Division Bench in LPA that

there ought to have been the finalization of draft

statement and the publication thereof after passing of

the order dated 15.12.1977 altering the earlier

published final statement.

6. In our opinion, this contention was absolutely

right in view of the language of Section 11(1) of the

Ceiling Act, which runs as under:-

11. Final publication of draft statement:

(1) When the objection under sub-Section (3) of

Section 10, appeal and revision, if any, relating

thereto have been disposed of, the Collector shall

subject to the provision of Section 15A(5) make such

alteration in the draft statement as may be necessary

to give effect to any order passed on the objection or

on appeal or revision and shall cause the said

statement with the alteration, if any, to be finally

published at such places and in such manner, as may be

prescribed under sub-Section (2) of Section 10 and a

copy thereof duly certified by the Collector in the

prescribed manner shall be given to the land holder

concerned.

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Now, in this case, as has been noted by the High

Court in the LPA, it was the old draft statement

published when in fact even the matter was not finally

decided in between the State and the land holders. A

specific contention was, therefore, raised that unless

the controversy between the State and the land holders

was completed, there could be no draft statement, much

less, publication thereof. Such draft statement which

was published prematurely, could not be treated as a

proper draft statement and there could be no

publication thereof also. In fact, when we see the

order passed by the Division Bench, it is correctly

noted therein that the publication, as contemplated, is

to be made only after the disposal of the objection,

appeal and revision and if the publication is made

before the disposal of the objection or appeal or

revision and no change is brought in the draft

statement by the disposal of the objection, the appeal

or the revision, the publication will hold good, but if

any orders in such objection, appeal or revision bring

about a change, the publication will not hold good

because the sub-Section mandates publication of a draft

statement as changed while disposing of the objection

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or appeal or revision. The Division Bench has also

drawn a correct conclusion holding:-

"The logical conclusion, therefore, would be that by reason of the appellate order dated 15.12.1977 final publication of the draft statement as was made prior thereto stood obliterated with the order passed on the objection, on the basis whereof the same had been published."

The Division Bench, however, noted that no such draft

statement was ever published altering the earlier draft

statement. Taking this in view, the Court then

proceeded to hold that since there was no final

publication made on the basis of the order dated

15.12.1977, Section 32B came into operation and,

therefore, there could be the initiation of the fresh

proceedings in terms of that Section. In our opinion,

this is a completely erroneous view. In fact, after

the order dated 15.12.1977 was passed, it was not for

the appellants to do anything, but it was the duty of

the State Government to issue a final draft statement

on the basis of that order and then to publish it in

the light of the order dated 15.12.1977, which duty

emanated from the positive language of Section 11(1) of

the Ceiling Act. It is not at all the fault of the

land holders/appellants if the State Government did not

do anything for four years i.e. between 16.12.1977 and

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9.4.1981 when the Amendment Act came into force.

Though the inaction on the part of the State Government

is noted by the High Court, the Division Bench refused

to act upon it and went on to observe:-

"Thus although there is no just reason for the collector not finally publishing the draft statement immediately after the appellate order dated 15.12.1977 was passed, but still then in view of the mandate contained in Section 32B of the Act, fresh proceeding became necessary in respect of the land in question."

We do not approve of such approach as it would be

patently unjust to give a premium to the State

Government on its inaction. We reiterate that the

appellants had nothing to do with the creating or

publishing of the draft statement. It was the duty of

the State Government. If the State Government did not

follow its duty, it has to suffer and the appellants

cannot be made to suffer on account of the inaction

shown by the State Government either deliberately or

otherwise. We, therefore, under the circumstances,

hold that Section 32B could not have been relied upon

by the State Government and both the learned Single

Judge as well as the Division Bench have erred in

legalizing the subsequent reopening of the proceedings,

which had come to a dead end on 15.12.1977.

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7. This is apart from the fact that even on the

merits, the Division Bench has committed a patent error

in treating the family as one family and proceeding to

limit the entitlement of the family holding to 18

acres. It was an admitted position that the father of

Pitambar Singh (appellant No. 1 herein) was alive on

9.9.1970. There is further no dispute that Pitambar

Singh (appellant No. 1 herein) was a major at that

time. Further, there can be no dispute again that the

major sons are not part of the family. The definition

of the `family' runs as under:-

"'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"

Therefore, the language clearly suggests that the

major son would be outside the definition of `family'.

In this case, on 9.9.1970, Bhagwati Singh was alive and

so was Pitambar Singh (appellant No. 1 herein) was

major. Even otherwise, Rabindra Kumar Singh (appellant

No. 2 herein) was also a major person in the family on

09.09.1970, as held by the appellate authority vide

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order dated 15.12.1977. Thus under no circumstance

could it be held to be a single family. The Division

Bench has tried to get over this by saying that there

was no pleading that on or before 9.9.1970, there was

any partition effected under the joint family and that

Pitambar Singh (appellant No. 1 herein) became

individually entitled to holding any land Raiyat. Now,

there is no question of treating Pitambar Singh

(appellant No. 1 herein) not to be a Raiyat,

particularly, when Pitambar Singh (appellant No. 1

herein) and his father were the coparceners of a

Mitakshara joint family holding the land in question

and as such, each of them were entitled to the land to

the extent of their share. The Division Bench has

strangely held that they were only entitled to enforce

their right by seeking disruption of the joint family

by claiming and obtaining partition of the joint family

properties; however, that having not been done their

individual rights did not crystallize. The Division

Bench also mentioned further that though they had

"floating right" in the land in question, but having

regard to the explanation inserted to the definition of

the word `family', such floating right could not be

taken into consideration for determining the

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composition of the family for the purpose of the Act.

We disapprove of this approach. The right of a

coparcener comes in his favour with his birth and

considering the definition of `family', which includes

only a person, his/her spouse and minor children the

logic of the Division Bench is erroneous. Explanation

II makes the matters clear when it says that personal

law shall not be relevant or be taken into

consideration in determining the composition of the

family for the purposes of the Act. Therefore, it will

be clear that though it was a joint family of Bhagwati

Singh and Pitambar Singh (appellant No. 1) and

thereafter of Ravindra Singh, the rights of Pitambar

Singh (appellant No.1) and Ravindra Singh as

coparceners would be intact. Further, since they were

major on the relevant date, they could not have been

held as member of one family and were entitled to be

treated as independent families with the result that

there would be two families and the total land being

only 33.95 acres, there could be no surplus, as has

been wrongly held by the Courts below, particularly,

after the reopening of the proceedings under Section

32B of the Amendment Act. On both counts, therefore,

the High Court has erred. We, therefore, allow this

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appeal, set aside all the orders starting from the

order dated 31.12.1983 and hold that since the order

dated 15.12.1977 has attained finality, there would be

no question of any further proceedings.

8. The appeal is allowed in terms of what is stated

above.

............................J. [V.S. Sirpurkar]

.............................J. [Cyriac Joseph] New Delhi;

October 8, 2010.

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