Choudhary Azizul Hassan and others vs State of Bihar and others

S.B. Sinha, J.—This application is directed against an order dated 18.2.1993 passed by respondent no. 2 whereby and whereunder he purported to have set aside the orders dated 1.3.1984 and 25.7.1991 passed by the Additional Collector, (Ceiling), Katihar and notice dated 22.3.1993 issued by the said respondent directing the petitioner to show cause as to why a proceeding u/s 18of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Lands) Act, 1961 (hereinafter to be referred to as the said Act), be not initiated as contained in Annexures 1 and 2 respectively. The fact of the matter is not much in dispute.

A proceeding under the said Act was initiated against the land-holder who was the father of the petitioners. A draft statement was issued u/s 10 (2) of the Act showing that the land holder had been holding 264.61 acres of land. An objection was filed by the land holder in terms of Section 10(3) of the Act which was disposed of by an order dated 27.2.1976 as it was found that surplus land was available at his hands. However, no notification u/s 11(1) of the Act was issued. It appears that the records of the said case was missing.

On 12.11.1982 some complaints had been received by respondent no. 2 whereafter a supplementary record was opened and, again a draft statement u/s 11 (1) of the Act the land holder was shown to have been holding 698.65� acres of land and upon grant of one unit to him, 673.45 acres was shown as surplus land. In the meanwhile as the land holder, Choudhary Abid Hassain, died on 7.10.1989, a copy of the statement was served upon the petitioner on 16.11.1989 and later on he was substituted in place of the original land holder on 26.12.1989. Notices were also issued to the parties subsequently. An objection was filed by the substituted heirs u/s 10 (3)of the Act on 3.5.1990.

Before the Additional Collector (Ceiling) the petitioner as also a large number of other persons appeared and made their submissions. By an order dated 25.7.1991 as contained in Annexure 3 to this writ application, it was held that the petitioner inherited 44.07� acres of lands from his parents and clubbing the same with his personal lands, the total area held by the petitioner was allegedly found to be 56.80� acres of class IV lands and thus only 26.80� acres of the land was held to be surplus as the petitioner was found to be entitled to retain 30 acres of land. The Additional Collector further found that the sisters of the petitioner also inherited some properties upon the death of their father and there were some surplus lands at their hands also. A final statement in terms of Section 11(1)of the Act was published on 5.12.1991 (Annexure 6).

The petitioner, in paras 16 to 19 of the writ application has also stated that the learned Additional Collector later on excluded some lands being : (1) the lands purported to have been belonging to Bibi Kaniz Fatima, measuring 218.51 acres (ii) lands held by Munsahi and Saifgunj Wakf measuring 155.40 acres, (iii) land surrendered by the petitioner, and (iv) 47.33 � acres of lands which was allegedly held by third parties measuring 106.39 acres.

The petitioner received a notice dated 22.2.93 asking him to show cause as to why a proceeding u/s 18of the Act be not initiated. The said notice was allegedly issued on the basis of an order dated 18.2.1993 as contained in Annexure 1 to the writ application.

In this case a counter affidavit has been filed on behalf of the respondents wherein it has been contended that an order dated 20.3.1993 was passed as contained in Annexure A thereto in terms whereof the order dated 18.2.1993 has been amended to the effect that the said notice will be deemed to have been issued u/s 458of the Act. In the said counter affidavit it has been contended that respondent no. 2 has taken a bold step in unearthing a racket with respect to lands of the petitioner as a large area of lands have wrongly been exempted from the ceiling proceeding by the then Additional Collector in collusion with the land holder-petitioner. It has further been stated that in any event only a notice to show cause has been issued and if the petitioner is directed to file show cause, he shall not at all be prejudiced. It has further been submitted that the then Additional Collector committed fraud in granting exemption and about 106 bighas of land situated in mouza Narkatiya of Purnea district and 55.11 acres of land of Purena East Circle belonging to the petitioner had delibrately not been included in the land ceiling proceeding. It has further been submitted that a fresh proceeding has to be initiated as the order passed by the then Addl. Collector (Ceiling) was a nullity as he was not authorised therefor. The petitioner has filed a reply to the said counter affidavit. A rejoinder to the said reply has also been filed by the respondents.

Mr. Ahmad, the Learned Counsel appearing on behalf of the petitioner, submitted that the impugned order is a nullity as the same has been passed without any notice to the petitioner and as the same is also mala fide. He further submitted that on 5.10.1991 a notification u/s 11(1) of the Act was issued and on 1.4.1992 a notification u/s 15 (1) of the Act was issued upon which the proceedings had attained finality. Learned Counsel further submitted that there does not appear to be any justifiable reason to pass the impugned order as contained in Annexure 1 to the writ application which was done only upon hearing the learned Government Pleader. Learned Counsel submitted that the order also contains errors of record.

It was further submitted that the writ petition was filed on 5.3.1993 and on 18.3.1993 an application for time was filed before the Collector in order to enable the petitioner to bring the stay order but time was granted till the rising of the court and during the pendency of this writ application he passed an order dated 30.3.1993 amending his earlier order dated 18.2.1993. It has been also submitted that the Collector of the district had all along been acting mala fide inasmuch as it would be evident from the facts stated hereinbefore that although the proceeding had earlier been reopened on the basis of the complaints received by him but when the final order had been passed by the Additional Collector (Ceiling) the State without preferring any appeal therefrom, initiated another proceeding only with a view to harass the petitioner. It was submitted that the report upon which reliance has been placed by the respondent no. 2, had been fabricated and in this connection our attention was also drawn to various Annexures contained in the reply to the counter affidavit.

Mr. B.P. Verma learned standing counsel appearing on behalf of the respondents, however, submitted that although the earlier proceedings were completed, but the matter was considered afresh on the basis of the complaints made by the public on 12.11.82. Thereafter, although only records were to be reconstructed but the Addl. Collector (Ceiling) started the proceeding suo motu. It has further been submitted that the Addl. Collector had no authority to grant any exemption. Learned Counsel further submitted that in terms of Section 32Bof the Act proceeding had to be started afresh by the Addl. Sub-divisional Officer as no final publication in terms of Section 11(1) was made till 9.4.1981.

It appears that the original records of the case are missing. On or about 1.3.84 a proceeding appears to have been initiated by the Addl. Collector, (Ceiling). Prior to the ordersheet of the said date, no other order sheet is available and thus it does not appear as to how the said proceeding came up before him for adjudication. Respondent no. 2 in his impugned order dated 18.2.93 as contained in Annexure 1 to the writ application has held that the Additional Collector reopened the case and finally disposed of the same. He, further found that a supplementary record of the case was opened on a wholly wrong premises inasmuch as from the ordersheet it appears that the matter relating to the misplacement of the records was directed to be enquired into but the Addl. Collector (Ceiling) purported to have started acting in the matter only on the basis thereof although the proceeding under the said Act was not transferred to his court. It has further been found by the Respondent no. 2 that, in fact, the then Addl. Collector (Ceiling) was not authorised to deal with the matter.

In this case a notice has been issued upon the petitioner to show cause as to why a proceeding shall not be reopened. It is true that by reason of the impugned order a wrong provision of law had been mentioned but the same was corrected by respondent no. 2 by reason of his order dated 20.3.93 as contained in Annexure A to this counter affidavit. It is not in dispute that the earlier proceeding was pending before the Addl. Subdivisional Officer. The said proceeding however, abated as no notification u/s 11 (1) of the Act had been issued and thus the proceeding was to start afresh from the stage of Section 10of the Act in terms of Section 32Bthereof. The petitioner did not raise any objection to reopening of the proceeding. Prima facie, therefore, it does not stand to reason as to how the proceeding which was assigned to the Addl. Subdivisional Officer and although merely a direction had been issued by respondent no. 2 to trace out the records, the Addl. Collector (Ceiling) started the proceeding himself. In terms of Section 31of the Act, it is for the Collector of the district to assign the business to the officers concerned if some local areas are assigned to two or more officers exercising powers of Collector under the Act.

In this situation, the Collector of the District could, in his wisdom, direct that a proceeding would be reopened. This aspect of the matter has recently been considered by a Division Bench of this Court in Mritunjay Narayan Mishra v. State of Bihar (CWJC No. 8843/91) wherein it has been held that although the jurisdiction u/s 45Bof the Act should be exercised upon receipt of new materials or new information but the said power can also be exercised if it is found that a fraud had been practised upon the court or mandatory provisions of law have been violated in passing the orders.

In this case, according to respondent no. 2, the Addl. Collector (Ceiling) had no jurisdiction which he had usurped and passed orders in favour of the land holder in collusion and in conspiracy with each other. If this be the factual position, in our opinion, there cannot be any doubt that the Collector of the District could exercise his jurisdiction u/s 45Bof the Act.

Recently the Supreme Court of India in a case of Union of India v. K.K. Dhawan reported in 1993 (2) Sup 56 while considering the question as to whether a disciplinary proceeding may be initiated against the officer exercising quasi judicial or judicial functions, held that such an action can be taken in the following terms :

Certainly, therefore, the officer who exercises judicial or quasi judicial powers acting negligently or recklessly or in order to confer undue favour on a person is not acting as a judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act but we have no doubt in our mind that Govt. is not precluded from taking the disciplinary action for violation of the conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases.

Where the officer had acted in a manner as would reflect on the reputation for integrity or good faith or devotion to duty.

If there is prima facie material to show recklessness or misconduct in the discharge of his duty.

If he has acted in a manner which is unbecoming of a Govt, servant.

If he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers.

If he had acted in order to unduly favour a party.

If he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago though the bribe may be small, yet the fault is great.

It is, therefore, clear that in some case the officer discharging judicial function may also be proceeded with departmentally. I have cited the aforesaid decision only for the purpose of showing that the law normally does not recognise a decision; if the same has been rendered in bad faith or on extraneous consideration. As Section 45Bof the Act authorises the State or the Collector of the district especially empowered in this behalf to reopen a proceeding, the respondent no. 2, in our opinion, could do so, if prima facie, it is found that the order has been passed to favour a party unduly or was actuated by corrupt motive.

In this case the Collector has, inter alia, came to a prima facie finding that the Additional Collector (Ceiling) passed orders in favour of the landholder with a view to favour the petitioner.

Further, at this juncture, only a notice has been issued upon the petitioner. The petitioner, in law, would be entitled to full opportunity of being heard before any decision is taken to reopen the proceeding. It is now a settled law that normally the jurisdictional fact should be allowed to be convassed at the first instance before the tribunal itself. Reference in this connection may be made to The Management of Express Newspapers Ltd. Vs. Workers and Staff Employed under it and Others, and in the case of State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, .

Recently a Full Bench of this Court in Ahmad Ali Akhtar v. Union of India, reported in 1993 (1) P.L.J.R. 665, at page 701 held as follows :

13.2. In the case of Carl Still vs. The State of Bihar, AIR 1961 SC 1615, the Supreme Court pointed out that if a statute sets up a tribunal and confines to it, jurisdiction over certain matters and if a proceeding is properly taken before it in respect of such matters, the High Court will not, in the exercise of its extraordinary jurisdiction under Article 226, issue a prerogative writ so as to remove the proceedings out of the hands of the tribunal or interfere with their course before However, when proceedings are taken before a tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the court under Art. 226 for issuing appropriate writs for quashing them on the ground that they are incompetent without his being obliged to wait until those proceedings run their full course.

4: However, even if it can be termed as "jurisdictional fact, it is a matter for the tribunal atleast at the first instance to go into the same. It is not for this Court at this stage to take up the role of the tribunal and decide as to whether there was any justification for issuance of such notification or whether the grounds are justified or not. Reference may be made in this connection to the decision in the case of The Management of Express Newspapers Ltd. Vs. Workers and Staff Employed under it and Others, ."

It is true that the impugned order dated 18.2.93 as contained in Annexure 1 to this writ application has been modified by the order dated 20.3.93. In our opinion, making changes or alterations in the provision of the statute, is wholly irrelevant for the purpose of determination of the jurisdiction of the authority. It is now well known that if a jurisdiction can be exercised on two different provisions of law, the fact that source power has been attributed to one provision of law which may not be attracted to the facts of the case, the order itself cannot be struck down if the authority passing the order had the jurisdiction to do so under a different provision of law.

Recently the Supreme Court in Kishun Singh and Others Vs. State of Bihar, , has observed as follows:

For the reasons stated above while we are in agreement with the submission of the Learned Counsel for the appellants that the stage for exercise of power u/s 319of the Code had not reached, inasmuch as the trial had not commenced and evidence was not led, since the court of Sessions had the power u/s 193of the Code to summon the appellants as their involvement in the commission of the crime prima facie appeared from the record of the case. We see no reason to interfere with the impugned order as it is well settled that once it is found that this power exists the exercise of power under a wrong provision will not render the order illegal or invalid.

In a recent decision in Ganga Prasad Sharma and ors v. State of Bihar (CWJC 3475 of 1988 disposed of on 8.4.93 a Division Bench of this Court, of which I was a member; took the same view in the following terms :

this Court in Krishnadeo Mishra v. State of Bihar (1987 PLJR 854) has also not considered the various decisions of the apex court as also this Court wherein it has been held that if a power exists in the authority having emanated from two different sources, wrong leveling or non- mentioning of the provisions of law does not render the order itself invalid.

In B. Balakotaiah v. Union of India and others AIR 1958 Sup 232) it has been held :

It is argued that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provisions if it can be shown to be within its powers under any order, rule and that the validity of any order should be judged on a consideration of its substance and not its form.

In J.K. Steel Ltd. Vs. Union of India (UOI), it has been held as follows :

There is no dispute that the officer who made the demand was competent to make demands both under rule 9(2) as well as under rule 10. If the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different provisions does not vitiate the exercise of the power in question. This is a well settled proposition of law. In this connection reference may be usefully made to the decision of this Court in P. Balakotaiah Vs. The Union of India (UOI) and Others, and Afzal Ullah Vs. The State of Uttar Pradesh, .

In State of Sikkim Vs. Dorjee Tshering Bhutia and others, it has been held as follows :

The fact that the State Govt. purported to act under rule 4(3) of the Rules in issuing the impugned notification is of no consequence. When the source of power can be validly traced then the State action in the exercise of such power cannot be struck down on the ground that it was labeled under a different provision.

Similar view has been taken by the Supreme Court recently in Union of India Vs. Khazan Singh,

Reference in this connection may also be made to the decision in the case of Rama Sharma Vs. Pinki Sharma and Others , Smt. Kalawati Tripathi and Others Vs. Smt. Damayanti Devi and Another and Durga Pada Banerjee v. Smt. Sushmita Banerjee, 1993 (1) BLJ. 313.

However, it is evident that the learned Collector of the district could not have passed the order dated 18.2.93 without giving any opportunity of being heard to the petitioner. He appears to have pre-judged the entire issue. The petitioner, therefore, has a reasonable apprehension that he would not get justice at the hands of the respondent no. 2. Bias of the respondent no. 2 with regard to subject matter of the proceeding is apparent on the face of the order dated 18.2.93 and 20.3.93. It is now well known that justice is not only to be done but manifestly seem to be done. Bias or a reasonable apprehension of bias vitiates the orders passed by the respondent no. 2.

In this situation, in my opinion, the State itself should examine the matter afresh for the purpose of consideration as to whether the proceeding shall be directed to be reopened in exercise of its power u/s 45Bof the said Act or not.

The respondent no. 2 shall, therefore, transmit the entire records to the Secretary of Revenue in order to enable the competent authority of the State to consider the matter at its own level. The petitioner shall file his show cause treating the notice dated 20.3.93 as contained in Annexure-2 to the writ petition to be one u/s 45Bof the Act and as if the same had been issued by the State of Bihar. This application is, thus, allowed in part but without any order as to costs.

A.N. Chaturvedi, J.

I agree.