BAGESHWARI PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner in this application challenges an order dated 6.7.1985/29.7.1985 passed by the Additional Collector, Gaya wherein he has made a recommendation to the Collector to reopen a land ceiling proceeding which had earlier concluded in the petitioner's favour in exercise of power under Section 45 -B of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act. In the order sheet, below the aforesaid order, the Collector has made an endorsement "as recommended" and put his signature on 15.10.1985.

(2.) WITHOUT going into the merits of the case, it is evident that the Collector has acted with material irregularity in the purported exercise of power under section 45 -B of the Act. Section 45 -B authorises the State Government or the Collector of the District to reopen a land ceiling proceeding under certain circumstances. It is beyond doubt that an order for reopening a proceeding under Section 45 -B is a judicial order and it must therefore be passed in a judicial manner and after due application of mind. One of the hall marks of such an order is that it must be passed (and must appear to have been passed) on an independent application of mind by the authority competent to pass the order. Unlike an administrative order, it cannot be passed by the competent authority by simply making an endorsement "as recommended" or "as proposed" on a note prepared by some subordinate. This writ petition, therefore, is fit to succeed on this ground alone that in the eye of law there is no order passed in terms of Section 458 of the Act.

(3.) IT may further be noted that even the reasons assigned for making the recommendation to reopen the proceedings do not stand a judicial scrutiny. From the order of the Additional Collector, it appears that he noticed that in the High School certificate the date of birth of the petitioner's middle son, Jitendra Singh was recorded as 1.2.1953; on 9.9.1970 he was, therefore, below 18 years of age. The Additional Collector further observed that in view of the High School certificate the horoscope furnished by the land holder in support of his son's age was of no value. He accordingly, observed that no extra units could be given for Jitendra Singh and the land holder was thus entitled to only two units. In the draft statement he was shown to hold 31.07 acres of Class I lands and thus after allowing two units, 1.07 acres would still be available with him for being declared as surplus. Hence, the recommendation to reopen the proceedings.