ASHOK KUMAR PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Challenge in this appeal is the final judgment and order dated 29.1.1999 passed by the Division Bench of the High Court of Judicature at Patna in L.P.A. No. 1173 of 1998 whereby the High Court dismissed the said appeal of the appellants herein.

(2.) The brief facts in a nutshell are:

(3.) On 27.12.1975, a proceeding being Land Ceiling Case No. 40 of 1975 was initiated against Ram Nandan Pandey under the provisions of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as "the Act"). In the draft statement published under Section 10(2) of the Act, the land holders were shown in possession of 126.38 acres of Class IV land and after allowing three units for Ram Nandan Pandey, Smt. Chandrakala Devi - the widow of Rajendra Pandey and Ashok Kumar Pandey, 36.38 acres was shown as surplus land. The land holders filed objections against the said claiming, inter alia, one more separate unit for Arun Kumar Pandey and exemption of 12 Bigha 19 Katha 10 Dhur of land which were sold to the mortgagees - Md. Kuddus and Md. Alam respectively. An enquiry was contemplated under Section 5(iii) of the Act and the transfers found to be genuine and valid as the transferees were found in actual physical and cultivating possession of the lands transferred and their names were also mutated in the revenue records of the Government. The transfers were also effected through registered documents and for a valuable consideration. They were also paying land revenue to the Government. After the enquiry on 24.4.1981, the Additional Collector, Sitamarhi held that the land holders were entitled to four units including one separate unit for Arun Kumar Pandey and the transfer of land in favour of Md. Kuddus and Md. Alam were genuine and valid transfers. Accordingly, on 5.5.1981, the Additional Collector having found no surplus lands in possession of the land holders, dropped the proceeding. The State of Bihar did not prefer any appeal, revision or review against the order dated 24.4.1981 or against the order dated 5.5.1981 and those orders were allowed to become final. After dropping of the proceeding, the Ram Nandan Pandey and his sons transferred 31.411/2 acres of land to different persons for their legal necessity. Smt. Chandrakala Devi and her daughters namely Usha Devi and Manju Devi transferred 29.24 acres of land to different persons for their legal necessity. In December, 1983, Ram Nandan Pandey died and by that time his third son Dhruv Kumar was a major. On 22.4.1993, a notice under Section 45B of the Act was sent by the Collector, Sitamarhi to show cause as to why the case be not re-opened on the ground that 12 Bigha 19 Katha 10 Dhur of land transferred to Md. Kuddus and Md. Alam were illegally exempted as no previous permission in writing of the Collector was obtained and thus the transfers have been made with mala fide intention of defeating the object of the Act. On 16.8.1993, the land holders replied to the notice contending that the lands were rightly excluded after conducting proper enquiry and that order of exemption had become final as no appeal, revision or review was preferred by the State against those orders before any higher forum as prescribed under the provisions of the Act and that the matter cannot be re-opened. On 26.6.1995, the Collector, Sitamarhi re-opened the case in exercise of his power conferred under Section 45B of the Act after more than 14 years. On reconsideration of the materials, the Collector transferred the same for disposal to the Court of Additional Collector, Sitamarhi. On 10.10.1995, the Additional Collector, Sitamarhi in Land Ceiling case No. 46/76/78/93 did not accept the two transfers made in favour of the mortgages-Md. Alam and Md. Kuddus respectively and after granting two units for Ashok Kumar Pandey and Arun Kumar Pandey and 20 acres of land for Dhruv Kumar Pandey, third son of Ram Nandan Pandey, declared 46.39 acres of land as surplus on the ground that the sale deed were executed after 9.9.1970 without obtaining prior permission of the Collector and therefore, the transferred lands have to be included within the ceiling area to be retained by the land-holders and ordered for draft publication of land. The appellants-land holders filed objections under Section 10(3) of the Act stating that the draft publication was not in conformity with the order of re-opening of the case and that the fishing enquiry is not permissible in law, that 31.421/2 acres of land transferred after dropping of the proceeding out to have been excluded from the land of land holders, that Dhruv Kumar Pandey was entitled to a separate unit, that 5.911/2 acres of land acquired by the State ought to be excluded from the land of the land holders, that 39.61 acres of land lying between two bundhs ought to be classified as Class V land and land belonging to other ought to be excluded from the land of the land holders. On 22.12.1995, the Additional Collector, Sitamarhi in Land Ceiling Case No. 40/75 78-93 came to the conclusion that it is not competent to examine the authority, jurisdiction and decision of the Collector to re-open the proceeding and that once the case is re-opened, the entire exercise has to be carried afresh and de novo. However, he exempted 0.90 acres of homestead land and 1.37 acres of land transferred before 9.9.1970 from the land of land holders. All other objections of land-holders were rejected and 24.11 acres of land was declared as surplus and the office was directed to take steps for publishing the final statement as contemplated under Section 11(1) of the Act. On 5.1.1996, final statement was published. Aggrieved by the order dated 22.12.1995, the appellants filed an appeal being Land Ceiling Appeal No. 2 of 1996 and the same was rejected by the Collector, Sitamarhi on 3.6.1996. Being aggrieved by the said order, the appellants filed Revision No. 50 of 1996 before the Board of Revenue, Bihar, Patna and the same was also dismissed on 26.12.1997. Against that order, the appellants approached a single Judge of the Patna High Court by way of writ petition being C.W.J.C. No. 2912 of 1998 and the same was also dismissed on 10.9.1998. Again the appellants filed L.P.A. No. 1173 of 1998 before the Division Bench of the High Court and the same was also dismissed on 29.1.1999. Against the said order, the appellants preferred the above appeal before this Court.