Latifur Rahman vs The State of Bihar and Others

S.B. Sinha, J.—This application is directed against the orders dated 17.9.1992, 17.12.1992 and 9.3.1993 whereby the land proceedings as against the petitioner have been reopened by the Collector Katihar (respondent No. 2) in exercise of his power u/s 45B of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961. The petitioner is a landholder. A land ceiling proceeding was initiated against him which culminated in the order dated 21.5.1976 passed by the Member Board, of Revenue.

A writ petition was filed by the petitioner in this Court being CWJC No. 1259 of 1976 and by an order dated 10.5.1977 a division Bench of this Court held as follows :--

In view of apparent confliction these two documents as to the age of Zulekha Khatoon, the assessment of the age of the sons and daughter should have been made by the authorities uninfluenced by the age of Zulekha Khatoon mentioned in the application dated 30.3.1974. Under the circumstances, we quash the order of the Board of Revenue (Annexure-8) and that of the Appellate court (Annexure-7) and remand back the case to the appellate court to consider the question afresh. The Collector will rehear the appeal and permit the parties to put in such materials as they may like. The petition is accordingly allowed. In the circumstance, however there will be no order as to costs.

According to the petitioner after the aforementioned order of remand the Additional Sub-divisional officer in whose court the case was transferred for disposal, by an order dated 20.7.1981 held that the lands were class IV lands and the petitioner''s sons Farooque, Ashfaque and daughter Sanjeeda were major on 9.9.1970 and the deeds of gift executed by the landholder were also valid.

Consequently by an order dated 9.9.1981 (Annexure-3) it was held that petitioner does not possess any surplus land. However, in terms of Section 328 of the Act which came into force with effect from 9.4.1981, fresh proceedings were initiated and again by an order dated 13.6.19486 (Annexure-4) the Collector held that the lands were Class IV lands and the aforementioned two sons and daughter of the petitioner were major.

By an order dated 13.6.86 it was held that two sons of the petitioners were major but by an order dated 7.7.1986, it was further held that the petitioner''s third son was also major on 9.9.1970. By an order dated 14.1.1988 it was held that no surplus land is available at the hands of the petitioner, which is contained in Annexure-5 to the writ application.

On or about 8.9.1992, however, the Additional Collector pointed out that matriculation certificate of the eldest son Farooque had not been produced which should be the criteria for determining the age as he was the student of D. S. College, Katihar.

The petitioner thereafter was directed by the Collector of the district to produce the matriculation certificate of Farooque by an order dated 17.9.1992 (Annexure-7). The petitioner, however, alleged that his son was never a student of D. S. College, Katihar and was not even a matriculate. The Collector, however, by reason of the impugned order dated 17.12.1992 and 9.2.1993 having prima facie found that there appears to be discrepancy in the certificate issued by the Head master and the other certificates directed reopening of the proceeding.

A counter affidavit has been filed on behalf of the respondents and the entire records of the case have also been produced.

In the said counter affidavit, it has been pointed out that the concerned Officers committed a fraud in granting additional units to the sons of the petitioner namely Farooque and Ashfaque. It has been pointed out that if the eldest son of the petitioner namely Md. Farooque was not major on 9.9.1970, the question of his younger brothers namely Md. Ashaque and Md. Afaque being major on 9.9.1970 would not arise.

In this connection, it has been pointed out that although by an order dated 13.6.1986 it was held that only two sons of the petitioners were major but by an order dated 7.7.1986 without any fresh matter, it was held that even the third son of the petitioner was major.

Mr. S. S. Asgar Hussain, the Learned Counsel appearing on behalf of the petitioner submitted that in view of the fact that a final notification had been published u/s 15 of the Act as far back as on 6.11.1988, reopening of the proceeding by the Collector of the District must be held to be illegal.

The Learned Counsel further submitted that there is neither any fresh material nor any fresh information so as to warrant exercise of power by the Collector of District u/s 45B of the Act.

The Learned Counsel in this, connection has relied upon a decision of this Court in Chandeshwar Prasad Vs. State of Bihar reported in 1987 PLJR 159 and Harishchandra Singh and etc. Vs. State of Bihar and Others, .

In this case, the earlier proceedings admittedly abated in terms of Section 32B of the Act.

The question, which this Court in the earlier writ petition decided, was that the age of the sons of the petitioner should be determined without considering the age of their mother. It, therefore, cannot be said that the High Court opined that the sons of the petitioner are major.

The age of each of the sons of the petitioner was thus required to be determined as on 9.9.1970 in view of the definition of "Minor Children" as contained in Section 2(cce) of the said Act.

For the said purpose, the petitioner was required to bring on legal evidence on records. Apparently neither any matriculation certificate nor any school leaving certificate had been produced. Even a report of the Medical Board was also not produced.

The Additional Sub-divisional Officer had no jurisdiction in the ceiling matter.

from the records of the proceedings it appears that by an order dated 13.6.1986, the records were directed to be placed before the Additional Collector, Ceiling. By an order dated 13.6.1986, he on the basis of the materials held that two sons and one daughter of the petitioner were major on 9.9.1970.

He, however, by reason of the next order dated 7.7.1986 held that the third son of the petitioner Md. Afaque is also major and he has been living separately from his father and carrying on a separate business.

The Additional Collector, Ceiling, therefore, passed two orders u/s 10(3) of the Act which are contrary to each other. So far as the age of Md. Afaque is concerned, in his order dated 7.7.1986 he clearly held that he has modified his earlier order dated 13.6.1986.

The learned Collector of the District by reason of his impugned order has taken into consideration the fact that the power of the reopening of the proceeding can be exercised not only on the basis of new information or new materials brought on record but also if it is found that the mandatory procedures of law had not been followed.

The learned court in this connection has relied upon a decision of this Court in 1984 PLJR 60, Harihar Singh Vs. State of Bihar and Others, .

In Mrityunjay Narayan Mishra Vs. State of Bihar and other analogous cases (CWJC No. 8843/1991) this Court upon taking into consideration various other decisions held as follows :--

From the conspectus of the decisions referred to hereinbefore, it is evident that Section 45B does not confer upon any arbitrary power upon the Collector of the District to reopen a proceeding on his own sweet will. All such orders must be informed by reasons. A land ceiling proceeding can be reopened only on the availability of the new material or if it is found that the Collector under the said Act has passed such orders in violation of the provisions of law both Substantive and procedural which was resulted in real prejudice to the State, landholder or any third party. However, I may mention that in a given case it may also be permissible for the Collector of the District or the State of Bihar to direct reopening of the proceeding when a fraud has been practised upon the Collector or any other party or when it is found that the order has been passed on extraneous considerations.

The power u/s 45B of the said Act, has to be exercised sparingly and the same cannot be exercised for the purpose of making a roving or fishing enquiry. While however, passing such order, the object and purpose of the Act should be the upper most consideration, in the mind of the Collector of District or the State.

Although, the principles of res-judicata are not attracted when the Collector passes an order u/s 45B of the said Act as has been held by this Court in Harischandra Case (Supra), but once a proceeding has been directed to be opened and the same upon enquiry has been dropped, in my opinion, such a proceeding cannot be directed to be reopened again except in very exceptional cases like practising fraud upon the court. A matter which has been duly enquired in to by the Collector of the District cannot ordinarily be directed to be reopened, by his successor in interest on the self same ground.

In this view of the matter, there cannot be any doubt that a proceeding can be reopened, if a fraud has been practiced upon the parties or mandatory procedures had not been followed.

From a perusal of the records, it appears that various certificates had been taken in evidence, although the contents thereof had not been proved.

The learned Additional Collector appears to have committed an apparent error in reviewing his earlier order.

It is also doubtful as to whether the sons of a Mohamndan during the life time of their father would be entitled to any separate unit at all or not.

The Collector of the District, has also inter alia held that the certificate granted by the Principal of the College is doubtful.

For the reasons aforementioned, in my opinion, it is not a fit case in which, we should exercise our jurisdiction under Article 227 of the Constitution of India. This application, is, therefore, dismissed, but without any order as to costs.

A.N. Chatturvedi, J.

I agree.