Jai Prakash Narain Mahto and Others vs The State of Bihar and Others

S.J. Mukhopadhaya, J.—As both the cases arise out of a common ceiling proceeding and common order of reopening u/s 45(B) they were heard together and are being disposed of by this common order.

The Petitioners of both the cases are purchasers who purchased their respective lands from land holder, Shree Goshala. Bhagalpur by two sale deeds, both dated 3rd February, 1967.

In a ceiling proceeding initiated against land holder, Shree Goshala, certain lands including the lands, in question, were declared surplus land of land holder, Shree Goshala.

Most of the purchasers, including the Petitioners were not noticed u/s 5(1)(iii) of the Act nor they were heard. For the said reason, some of them moved before this Court in writ petitions, including C.W.J.C. No. 6371/95 and other cases. Those cases were heard together and disposed of by common order dated 22nd January, 1996 with observation that the Petitioners should approach the State Government u/s 45(B) of the Ceiling Act.

The State of Bihar (Hon''ble Minister Incharge of Revenue and Land Reforms Department) heard the purchasers including the Petitioners and reopened the case u/s 45(B) of the Act, vide order dated 8th April, 1997. The order of reopening reads as follows:

The proceedings of the Goshala was perused the original sale deed also bears the date 3.2.97 (sic 3.2.67). It will therefore be a judicious approach if this case is reopened u/s 45(B) and the case should be sent to the Collector Bhagalpur for hearing. The Collector is directed to dispose of the case within a period of three months. Hence the case is reopened u/s 45(B).

It is admitted that the Collector of the district thereafter transferred the file to the Additional Collector (Ceiling), Bhagalpur who is the Collector under the Act (distinct from Collector of the district). After hearing the parties, he passed the common impugned order on 3rd November, 1997 and annulled all the sale deeds executed on 3rd February, 1967, including the deeds in question.

The counsel for the Petitioners relied on order of reopening passed by the State dated 8th April, 1997. According to him, when the case was transferred to the Collector, Bhagalpur for hearing, i.e. the Collector of the district, the Additional Collector had no jurisdiction to decide the same. Reliance was placed on a decision of this Court in the case of Kesara Devi and Anr. v. State of Bihar and Ors. reported in 1984 B.L.J. 420 : 1984 PLJR 209.

Further submission was that even if the order is held to be within jurisdiction, such order is to be held illegal as the sale deeds cannot be stated to have been executed to defeat the provisions of Ceiling Act. Reliance was placed on a Bench decision of this Court in the case of Bachan Singh v. S.D.O. and Ors. reported in 1977 B.B.C.J. 728 : 1978 PLJR 375.

Counsel for the State rightly pointed out that the decision of this Court in Kesara Devi''s case (supra) was overruled by Full Bench of this Court in the case of Mahanth Siya Ram Das and Anr v. State of Bihar and Ors. reported in 1985 PLJR 101. The Full Bench held that the scope of. power under the provision of Section 45(B) has been given to the State Government or the Collector of the district authorised in this behalf to direct reopening and disposal afresh of any proceeding disposed of by Collector under the Act. The wide ranging power is limited to the proceeding disposed of by the authorities upto the level of Collector under the Act and no higher authority. The section does not mandate that the decision afresh of a proceeding disposed of by Collector under the Act, must be done by the State Govt. or by the authorized ''District Collector'' alone.

Though the aforesaid question stood decided by the aforesaid Full Bench diction in the case of Mahanth Siya Ram Das (supra), but in view of changed circumstances and amendment of the Act. the matter requires consideration in the light of such amendment. The State Govt. initially promulgated an ordinance, whereunder the power of District Collector to reopen a case u/s 45(B) was deleted. It was followed by Act No. 8 of 1977. Since such amendment, the District Collector has no jurisdiction to reopen a case u/s 45(B) of the Act. It is the State of Bihar who can reopen a case under the said provision, as has been done in the present case. The State of Bihar seems to have issued a guidelines in this respect vide Letter No. 1492 dated 15th May, 1989, as printed (sic) book ''Bihar Land Ceiling Manual'' punished by Malhotra Books, which is below the provision of Section 45(B). Extract of the said circular, is given below:

Letter No. 11/L.R.10-28/89-1492 RAO dated 1.5.89.

SUBJECT: BIHAR BHUMI SUDHAR (ADHIKTAM SEEMA NIRDHARAN AUM ADHISHESH BHUMI ARJAN) ADHINIAM 1962 Kl DHARA 45(B) KAY ANTARGAT SHAKTIYO KA UPYOG.

YUH BHI NIRNAI LIA GAYA HAI Kl BJHAR BHUMI SUDHAR (ADHIKTAM SEEMA NIRDHARAN AUM ADHISHESH BHUMI ARJAN) ADHINIYAM 1962 Kl DHARA 41(A) YA 45(B) KAY ANTERGAT PUNARJIWIT KIYAY GAI WADO MAY SUNWAI KA KAAM JILA SAMAHARTA KAY ATIRIKTA KISJ DUSREPADADHIKA Ri KAY NYAYALAYA MAY NAHI KIA JAIGA.

By the aforesaid circular, power has been delegated for determination of case on reopening u/s 45(B) afresh to the Collector of the district. It has been specifically directed that except the District Collector no other officer is to hear such case on reopening.

It appears that aforesaid guidelines being binding on the authorities, the State of Bihar vide order dated 8th April, 1977 directed the Collector of the district Bhagalpur to hear and dispose of the case on such reopening.

In view of amendment made in the provision of Section 45(B) specific guidelines issued on 1st May, 1989 in this respect; and the order of State Government dated 8th April, 1997, the law laid down by Full Bench in the case of Mahanth Siya Ram Das and Anr. (supra), cannot be made applicable in the present case, on changed circumstances.

Accordingly, I hold that the common impugned order dated 3rd November, 1997 passed by the Additional Collector (Ceiling). Bhagalpur is without jurisdiction and thereby illegal. The same is, accordingly, set aside.

In view of aforesaid decision, it is not necessary to decide other questions raised on behalf of the Petitioners, though on principle I accept that mere execution of several sale deeds on a day or undervaluation cannot be a factor to annul a transfer u/s 5(1)(iii) of the Ceiling Act as held by this Court in the case of Bachan Singh (supra).

In the result, the writ petitions succeed and the cases stand remitted to the Collector of the district, Bhagalpur for decision afresh, in accordance with law, after notice and hearing the parties.

Till such decision is given, the lands, in question, be not distributed in favour of any one or other parties.

Both the writ petitions are allowed with the aforesaid observations and directions.