DULAHIN DHANESHRA KUER Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ application the petitioners prayed for issuance of appropriate writ for quashing of the order dated 9.9.1994 passed by the Additional Member, Board of Revenue, Bihar, Patna in Board case No. 52 of 1994, copy whereof is Annexure 7 to this writ application.

(2.) The petitioners case, inter alia, was that one Late Chaudhary Girdhari Singh who was the common ancestor had two sons, namely, Lok Nath Singh and Ram Baran Singh. Rachala Kuer is widow of Late Ram Baran Singh. Lok Nath Singh died leaving behind a son Ramdhwaj Singh. Petitioner No. 1 is his widow and petitioner No. 2 is his major son. Ramdhwaj Singh has four more issues, namely, Pashupati Nath Singh and three daughters Savitri Kuar, Sushila Kumari and Manorama. All these four issues were minor on 9.9.1970. According to petitioners a notices under Section 10 (2) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquistion of Surplus Land) Act (hereinafter referred to as the "said Act") was served upon stating that he possessed 91.38 acres of class IV land and 0.03 acres of class VI land, thus 91.40 acres of class IV land. It was further said that only one unit was admissible to the family along with two additional units to the extent of 2/10 and therefore, 36 acres of land were admissible to the family and 55.30 acres of class IV land were surplus which were fit to be acquired by the State. Ramdhwaj Singh filed an objection under Section 10 (3) of the Act contending, inter alia, that two more units were admissible to the family, one for Rachala Kuer, widow of Ram Baran Singh, who was alive and one for Paras Nath Singh petitioner No. 2 who was major on 9.9.1970. In the said petition it was also pointed out that 36.82 acres of land had been gifted by Ramdhwaj Singh in favour of his daughter Savitri Devi by virtue of two deed of gift on 24.11.1961 and 24.10.1962 during the period when it was legally permissible for land holders to gift their land in favour of the relatives and heirs. It was further contended that these lands were excluded from consideration. He also claimed to have sold some land with valuable consideration and the vendees were in possession. Some more lands said to have been acquired by the State of Bihar in connection with different projects and schemes which no more, belonged to the petitioners family and thus they should also be taken out of consideration. The matter was heard by S.D.O., Bhabhua who did not issue notice to the vendee nor made any en- quiries under Section 5 (1) (iii) of the said Act and by order dated 1.12.1975 dismissed the objection. Accordingly, final publication under Section 11 (1) was made on 25.6.1975. As against the said order Ramdhwaj Singh filed appeal in the Court of A.D.M., Sasaram which was subsequently transferred to the Court of Collector, Sasaram. He modified the order to the extent that Paras Nath Singh was held to be Major. Ramdhwaj Singh filed Ceiling Revision No. 652 of 1976 before the Board of Revenue, Bihar, Patna. The Board by its resolution dated 16.3.1977 rejected the claim of separate unit of Paras Nath Singh although there had been no cross objection of appeal filed by the State. However, he held that Most Rachala Kuer was entitled to one unit and thus two units were allowed. The Board further found that there had been no proper enquiry under Section 5 (1) (iii) of the Ceiling Act and hence, the case was remanded back to the court of Collector for passing fresh order in accordance with law. The petitioner filed C.W.J.C No. 940 of 1977 against the order of remand but the said writ application was subsequently withdrawn. The petitioner further case was that after remand the Collector transferred the matter before the Additional Collector for disposal. However, in the meantime, Section 32-A was brought in by amendment and the proceeding was deemed to have been abated and a fresh notice under Section 10 (2) of the Ceiling Act was issued against the petitioner No. 1 as in the meantime, Ramdhwaj Singh died on 28.10.1978. However, petitioner No. 2 was not made a party and no notice was issued to him. Petitioner further case was that after receiving notice supplementary objection under Section 10 (2) of the Act was filed reiterating the same points raised in the earlier objection. It was said that the learned Additional Collector without making the verification and without considering the documentary evidence filed by the petitioner with regard to majority of petitioner No. 2 passed an order dated 5.12.1985 whereby the objection filed by the petitioner was rejected. According to learned Additional Collector the landholders were entitled to two units only : one for petitioner No. 1 and the other for Rachala Kuer and two additional units of 2/10 for the minor sons of petitioner No. 2, copy of the said order is Annexure 1 to the writ application. Against the said order the petitioners filed ceiling Appeal No. 27 of 1986 before jhe Collector, Rohtas at Sasaram which appeal was heard and admitted on 5.6.1986, The Additional Collector said to have made clandestine enquiry and without giving any opportunity of hearing on the basis of the report dismissed the appeal in terms of the order , dated 30.3.1987, copy of which is Annexure 2 to the writ petition. The petitioners then filed revision before Member, Board of Revenue being case No. 303 of 1988. The Additional Member Board of Revenue found substance in the submission of the petitioners and set aside the appellate order, by virtue of order dated 25.4,1989 and remanded the matter back for fresh consideration by the appellate court, copy of the order is Annexure 3 to the writ application. After remand the petitioners made their submissions and assailed the report of the Additional Collector but the appellate court without considering the submission and the documentary placed before him dismissed the appeal vide order dated 4.8.1992, copy of the order" is Annexure 4 to this writ application. The petitioners again filed Board Case No. 168 of 1992. Learned Additional Member Board of Revenue after hearing the parties allowed the application in part holding that Paras Nath Singh had attained majority on 9.9.1990 and thus he was entitled to one unit. The Board further held that land standing in the name of purchaser will be deemed to be their lands even if the same was benami transactions. The Additional Member, Board of Revenue also anlowed the petitioners to exercise their option and the petitioners after the records were sent back to the Court below, petitioners filed an application seeking to exercise their option as granted by the Revisional Court and besides the three and odd units granted to them, they prayed for exempting the lands under the deed of gift of Savitri Devi. The appellate court referred the matter back to the Additional Collector, Bhabhua who after consideration of the matters held that the lands gifted to Savitri Devi vide deed of gift dated 24.11.1961 dated 12.10.1962 cannot be exempted inasmuch as that will be clubbed along with the land of the landholders because she was minor on 9.9.1970. The Additional Collector, therefore, directed the petitioners to furnish afresh option for retaining the lands for the family, copy of the order of Additional Collector is Annexure 6 to this writ application.

(3.) A counter-affidavit has been filed on behalf of the respondents stating, inter alia, that the petitioner have suppressed the fact in this writ application inasmuch as the original land holders Ramdhwaj Singh who died in 1978 who took the stand that out of two sons and three daughters Paras Nath Singh was born on 1.1.1951 and Papoo alias Pashupati Nath Singh, Savitri Devi, Sushila Kuer and Manorma Kuar were minors. The landholder claimed 3 units, one for the landholder, other for his wife, Dulhin Dhaneshwar Kuer and the third for his major son Paras Nath Singh as well as one additional 1/10th uinit for one of the minor children. But subsequently the petitioners changed their case and tried to say that the second son Pashupati Nath Singh and the daughter Savitri Kuer were major on 9.9.1970. It was further stated in the counter affidavit that after the initiation of a fresh proceeding petitioner No. 1 filed another objection on 7.9.1983 stating therein that she has four minor children and claimed one additional unit for one extra member because on the appointed date there were six members in the family.