LAXMI NARAIN SAHI Vs. STATE OF BIHAR

JUDGEMENT

(1.) FOUR brothers, namely, the Appellants No. 1 and 2 and the Respondent No. 5 & 6 held altogether 134 acres of land. 35.47 acres of such land were situate in Village Punaura under Dumra Circle in the District of Sitamarhi. The remaining were distributed in three Villages, namely, Chaumukh, Balia and Ratanpura under Bochhan Circle in the District of Muzaffarpur. When the land ceiling proceedings were initiated, four returns were filed; one by the Appellant No. 1 whereby and under it was held out that four brothers are joint and the total land held by them is 134 acres. In the separate return filed by the Appellant No. 2, he held out that the brothers are separate and in his share he has 30. acres of land situate in the aforementioned three villages under Bochhan Circle in the District of Muzaffarpur. In the return filed by the Respondent No. 5, he held out that the brothers are separate and on the basis of his share he is holding 35.47 acres of land situate in Village Punarua under Dumra Circle in the District of Sitamarhi. The Respondent No. 6 in his return held out that on his own right he is entitled to 37 acres of land situate in the three villages, as named above, under Bochhan Circle in the District of Muzaffarpur. The returns were then considered by the first authority appointed under the Act who held that notionally the brothers were separate in relation to the lands in question and permitted the Respondent No. 5 and his sons to retain 35.47 acres of land, and at the same time permitted the Respondent No. 6 and his sons to retain 37 acres of land. However, the said authority did not permit the Appellant No. 2 to retain 30 acres of land and directed a part thereof to vest in the State Government. The appellant No. 1 was permitted to retain less than 28 acres of land and the remaining were directed to vest.

(2.) THE lands in question were classified as Class IV lands and in accordance with the law as applicable, one unit is entitled to retain 30 acres of land. There is no cogent reason why the Appellant No. 2, therefore, was not entitled to retain 30 acres of land in respect of which he had submitted his return. In so far as the Appellant No. 1 is concerned, after deducting the lands held by the Appellant No. 2 and the Respondent No. 5 & 6, he could have approximately 31.5 acres of land, but in law, he was entitled to retain only 30 acres of land for he was on unit. In such view of the matter it was obligatory on the part of the said authority to permit the Appellant No. 1 to exercise his option under Section 9 of the Act to choose 30 acres of land to be retained out of approximately 31.5 acres of land. That was not, however, permitted.

(3.) THE decisions of the first authority and the revisional authority were assailed in the writ petition. In the writ petition it was contained that the brothers were not separate. At the time when the writ petition was heard, none appeared on behalf of the parties, except the respondent No. 6. As a result, the learned Single Judge proceeded on the basis that the contention that the petitioners are still joint cannot be held good in view of the concurrent findings of fact by the authorities who were entitled to determine facts on issue. In as mush as no one assisted the learned Single Judge, the learned Single judge failed to take note of the fact that having regard to the Class of land, the Appellant No. 2 was entitled to retain 30 acres of land, in respect of which, he had submitted the return and accordingly there was no question of taking out any part of such land as surplus land. Similarly in as much as no one appeared on behalf of the appellant no. 1 before the learned Single Judge, it could not be pointed out to the learned Single Judge that the Appellant No. 1 has a statutory right under Section 9 of the Act to exercise an option to retain 30 acres of land out of approximately 31.5 acres of land.