SHYAMDEOKUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and the learned counsel for the State. The application is directed against the order dated 4/9/1990 passed by the Collector, Purnea in Ceiling Appeal No. 66/90-91 as contained in Annexure-4 to the writ petition as also the resolution dated 28/12/1991 passed by the Additional Member Board of Revenue, as contained in Annexure thereto. The grievance of the petitioner is confined with regard to the classification of land. According to the learned counsel for the petitioner Chaur lands have been classified as Class III lands. It has been submitted that the land sub merged under river has also been included in the notification under Section 11 (1) of the Act, although such and do not come within the purview of definition of 'land', under Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 Before us, the records have been produced and from the verification report it does not appear that exists as source of irrigation for irrigation the lands in question. It is relevant to mention here that Sub-Divisional Officer Irrigation Department has granted a Certificate in favour of the petitioner which is contained as Annexure-3 to the writ petition but the said certificate has been rejected by the Collector as also by the Additional Member Board of Revenue on wholly non-existent ground. It is for the authorities to classify the lands in question in accordance with the provision of the said Act. For that purpose there must be material on the record to show as to whether provision for irrigation the land exists. If no provision for irrigating the land in question has been made such lands cannot be classified as Class III as has been held by this court in various decisions. Similarly, the question as to whether the lands which are submerger river under the water of land or not would be land or not could depend upon determination of the relevant question of fact land perennially submerged under water would be Class VI land within the meaning of Explanation II to Section 2 (f) of the Act read with Section 4 (f) thereof. In this view of the matter the impugned orders cannot be sustained and thus are set aside. The Collector shall give an opportunity to the petitioner as also the State to adduce their respective evidences with regard to the classification of the land. In the peculiar facts and circumstances of the case it is observed that in that event the Collector under the said Act determines the matter in favour of the petitioners they may be given an opportunity to exercise their option. This application is disposed of with the aforementioned observation and direction.