MRIDULA MISHRA, J.
(1.) Heard learned counsel for the petitioner and the counsel appearing for the State.
(2.) Instant writ application has been filed for quashing the order dated 3.9.2001, passed by the Subdivisional Officer Mohania (Annexure-2) and the Gazette Notification dated 20.11.2001 publised under Section 15 (1) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter to be referred to as the Ceiling Act) Annexure-2/A and further for commanding the respondents to forebear from interfering with the possession of the petitioner over the land in question.
(3.) Facts leading to the present application is that a Ceiling proceeding No. 12 of 1970-71 was initiated against the land holder Bhagirathi Devi wife of Sheo Kumar Tiwary and mother of present petitioner. This proceeding was initiated with respect to 120.40 acres of land appertaining to R.S. Khata No. 238,264,265 and 420 situated in village Barhupar and Khata No. 56 situated in village Tilanga in the district of Kaimur. In the said Ceiling proceeding Bhagirathi Devi and her two daughters i.e. the petitioner Kamla Kuer and Vidyut Prabha Devi filed a Ceiling Revision Case No. 641 of 1976 before the Member Board of Revenue, Bihar, Patna and the matter was remanded to the S.D.O. Bhabhua for deciding the age of Vidyut Prabha and also for holding an enquiry regarding the transactions of the land in question. Sheo Kumar Tiwary the husband of land holder had executed two gift deeds in favour of his two daughters namely Kamla Kuer and Vidyut Prabha Devi on 13.4.1963. The donees were transferred 29 acres of Class IV land in their favour through this registered deed of gift executed within the permissible period under Section 5(v) of the Ceiling Act as existing at that period as such the transfer in favour of the daughters through the gift deed was in cons
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onance with the provisions of the Ceiling Act. The S.D.O. Bhabhua on remand of the case by order dated 18.4.1978 dropped the proceeding. The reason for dropping the proceeding was that after excluding 45.33 acres of Shikm land only 75.10 acres of land was found to be possessed by the land holder and the land was classified as Class-IV land. After giving three major units the S.D.O. came to a conclusion that there is no excess land and the proceeding was concluded in favour of the land holder. The order dated 18.4.1978 remained unchallenged. Petitioner and her sister Vidyut Prabha Devi after transfer of 29.97 acres of Class IV land in their favour in village Tilanga got their names duly mutated and their names were also entered into the survey Khatian finally published in the area on 8.1.1997. The petitioner and her sister became distinct and independent raiyat as also all the documents of title and possession are in their name. A fresh Ceiling case No. 139 of 1982 was started against Bhagirathi Devi. In that ceiling case the land of the donees were also included, but no notice was sent to them. There was no reason for reopening the case under Section 45-B as the condition precedent for reopening was not satisfied. The case was reopened just to test the veracity of the final order dated 18.4.1978. -
(4.) It has been submitted by the counsel for the petitioner that any proceeding which has earlier been dropped by a reasoned order which has reached finality cannot be reopened under Section 45-B just to verify the correctness and legality of the order by which the ceiling proceeding has been dropped. Reliance has been placed by the petitioner in the case of Shiv Shankar Pd. Singh and Ors. v. State of Bihar and Ors., 1982 BBCJ 362. and in the case of Praveen Shankar Singh and Ors. v. The State of Bihar and Ors., 1987 BLJR 292, wherein it has been held that Insertion of the "expression" if it thinks fit in the section means to act with sufficient cause, proceeding cannot be re- opened for merely making a fishing enquiry to test the correctness of the earlier order. The power cannot be exercised lightly since its consequences may seriously affect a person. Length of time after which the closed matters are sought to be re-opened should be the ground. The proceeding cannot be re-opened on the material which was already on record and duly considered and became final whether on appeal etc or otherwise.
(5.) Submission advanced by the petitioner is that since on consideration of the entire material the proceeding was dropped holding that the land holder do not possess land in excess of the ceiling unit. The proceeding was dropped in the year 1978 and after much delay in the year 1982 ceiling proceeding was re- opened just to make a fishing enquiry regarding the validity and legality of the earlier order which was not permissible under the law. In the facts and circumstances the re-opening of the ceiling proceeding itself was illegal, arbitrary and without jurisdiction as such the entire proceeding is fit to be quashed. Further case of the petitioner is that once the proceeding was reopened under Section 45-B of the Ceiling Act in that case it was the legal necessity that there should have been recommencement of the proceeding afresh. The provisions under Section 45-B of the Ceiling Act enjoins duty on the Collector or the State to start proceeding afresh which will have same effect as it is under Section 32-A or 32-B of the Ceiling Act. Under Section 32-B wherein initiation of fresh proceeding has been mentioned, it has been stated that all those proceedings other than appeal, revision, review or reference referred to under Section 32-A pending on the date of commencement of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, in which final publication in Sub-section 1 of Section 11 of the Act as it is stood before the amendment by aforesaid act has not been made, shall be disposed of afresh in accordance with the provisions of Section 10 of the Act.
(6.) Section 10 of the Act deals with the preparation of draft statement. The draft statement under Section 10 is prepared on the basis of the information given by or on behalf of the land holder under Sections 6,7,9 or the information obtained by the Collector under Section 7, checked in the prescribed manner. For preparation of the draft statement, there must be an enquiry under Section 5(i) (iii) of the Act. It means that if any proceeding is reopened under Section 45-B of the Act in that case the proceeding must start afresh and for starting a proceeding from the stage of Section 10 it is necessary that an enquiry under Section 5(i) (iii) of the Act, on the basis of information given by on behalf of the land holder under Section 6,8,9 or the information obtained by the Collector under Section 7, the draft statement under Section 10 can be prepared. On reopening of a proceeding under Section 45-B it is the duty enjoined on Collector to observe the provisions under Section 10 (c) (i) and (Cii) of the Act which reads as follows : --
"The area and description of land of each of the categories in Clause (a) which is allowed by the Collector to be held and retained by the land-holder under Section 5."
(c2) The substance of findings of the Collector under Clause (iii) of Sub-section (I) of Section 5.
(7.) Further it has been submitted by the petitioner that the ceiling case was re-opened by the order dated 4.12.1982. Evidently at that time there was drastic amendment in the Act in terms of the Act No. 55 of 1982 with effect from 9.4.1981. Law commanded at least to start in terms of Section 10 (1) of the Act. After amendment, law enjoined a duty to hold an enquiry under Section 5 (i)(iii) etc. of the Act after which a fresh draft statement was required to be published which was not done. There was no service of any draft statement. The petitioner who was an independent land holder was not even noticed. The proceeding continued on the basis of old materials and the reports, the Anchal Adhikari did not furnish any information and notice to the petitioner before conducting any enquiry and submitted report to the Collector under the Act. The mandate of the amended law was not followed and there was no publication of draft statement under amended Section 10 (1) of the Act. The proceeding was reopened for examining the question of (i) majority (ii) Whether the petitioner was married prior to 9.9.1970 as such ceased to be the member of the family of the land holder. (iii) Whether the deed of gift executed in favour of the petitioner and her sister were within the permissible period or beyond the purview of any enquiry (iii) the right of Shikmidar under Section 22 of the Act and (v) the classification of the land. These points were not considered. There is no finding on the point of majority as it was not done after holding full enquiry. The finding recorded on the point whether the petitioner was married prior, to 9.9.1970 is erroneous as even if the petitioner was married prior to 9.9.1970, her right to remain a land holder or her right on the basis of inheritance cannot be taken away. The finding recorded on the point of the deed of gift was also erroneous as the deed of gift was executed in favour of the petitioner and her sister within the permissible period and this was not subject to any enquiry, the deed of such transfer could not have been annulled nor it should have been ignored by the respondents. However, that has also" been ignored. The right of Shikmidar under Section 22 of the Act has been done. Classification of the land has been done without where being any basis for ignoring the report of the Assistant Engineer regarding classification which was already there which was duly accepted by the Collector under the Act on 18.4.1978.
(8.) Most surprising part of this proceeding is that after reopening of the proceeding, the land holder Bhagirathi Devi died in the year 1996 during the pending of case before the Collector. The petitioner and her sister who were already impleaded in the proceeding made an application regarding the death of land holder even then the name of Bhagirathi Devi was not expunged from the records. The petitioner and her sister besides their right as donee on the basis of a registered deed within the permissible period followed by actual possession inherited the property being the legal heirs of their parents. This was also ignored by the Collector. The Collector in total disregard of all the provisions of the ceiling Act finally on 3.9.2001 passed an order whereby the land which were earlier classified as Class IV were treated as Class I land. Three units which were allowed by order dated 18.4.1978 was reduced to two units. The gift deed which was executed within the permissible period was totally ignored. One unit was allowed to Bhagirathi Devi the land holder as she was alive on 9.9.1970 and another unit was given to Vidyut Prabha Devi treating her as major and entitled for one unit. So far the case of the petitioner is concerned she being older than Vidyut Prabha Devi was not allowed any unit in her favour. Another illegality in the order was that the order was passed against dead person Bhagirathi Devi and the Collector directed for final publication under Section 15 (i) of the Act without there being any notification under Section 11 (1) of the Act. This notification under Section 15 (1) has taken away the right to appeal and revision of the petitioner, provided under Section 30 and 32 of the Ceiling Act. Appeal can be preferred only against the notification published in the gazette under Section 11 (1) of the Act. Since there was no publication of notification in the gazette under Section 11 (1) and directly there was a publication of notification under Section 15 (1) of the Act. The Collector snatched away the valuable right of the petitioner as provided under the Act. The gazette notification dated 20.11.2001 was published under Section 15 (i) of the Act in the name of Bhagirathi Devi, who was admittedly dead on the date of its publication, which also is a serious illegality. The petitioner has challenged the entire proceedings of the ceiling case No. 189 of 1982 as well as the notification dated 20.11.1981 published in the district gazette under Section 15(i) of the Ceiling Act.
(9.) A counter affidavit has been filed by the State wherein it has been stated that the proceeding was reopened as S.D.O. Bhabhua had passed the order dated 18.4.1978 going against the material on the records and has caused miscarriage of justice. The Collector of the district Rohtas, considering the material on record and after applying his judicial mind reopened the case on 4.12.1982. Thereafter the proceeding was conducted in the prescribed manner, a draft statement was prepared under Section 10 (i) of the Act in the official gazette of the district in the manner prescribed. The copy of the draft statement was also sent to the land holder by registered post. The land holder appeared in the proceeding, took time for final objection under Section 10 (3) of the Act, but no objection was filed by her. The daughter of land holder Vidyut Prabha Devi appeared and took adjournments for filing objection. The petitioner also appeared and took several adjournments, but no one filed any objection. On 20.11.1995 Kamla Devi filed an objection stating that the land holder Bhagirathi Devi has died and their names be substituted in place of Bhagirathi Devi as land holder. Since then they were already appearing in the proceeding as land holder, but they never filed any objection under Section 10 (3) of the Act.
(10.) So far the gift deed is concerned, it was executed by Sheo Kumar Tiwary on 13.4.1963 in favour of his daughter Kamla Devi for 30.98 acres and in favour of Vidyut Prabha Devi for 29.97 acres, but in the revisional survey khatian name of Sheo Kumar Tiwary and Bhagirathi Devi was continuing with respect to these lands. The daughters name were never recorded in the revenue records. The gift was never acted upon. The deed was executed only with an object to retain farji land in excess of the ceiling area.
(11.) So far the classification of the land is concerned simply it has been stated that earlier the lands were classified as class I land and two major units were allowed declaring 90.11 1/2 acres as surplus. Transfers made by the land holders were annulled. It has also been stated that if the land holders were dissatisfied with the order dated 3.9.2001 in that case they could have filed an appeal and should not have directly come before this Court in its extra ordinary writ jurisdiction.
(12.) Considering the points of law and the statement made by the parties I find that the ceiling proceeding in the present case which was dropped by order dated 18.4.1978 by the S.D.O. Bhabhbua remained unchallenged. No objection was raised by the authorities for four years. Suddenly in the year 1982 ceiling case was reopened under Section 45-B of the Act when the case was reopened there was drastic amendment in the Act in terms of the Act No. 55/82 with effect from 9.4.1981. On account of the amendment it was necessary that the provisions under Sections 32-A and 32-B of the Act should have been observed under Sections 32-A and 32-B, there should have been fresh verification for deciding majority, classification of the land and transfer by the land holder in consonance and in contravention of the Ceiling Act, only after this. The proceeding should have proceeded from the stage of Section 10 of the Ceiling Act and Section 10 Clause (Cl) and (Cll) should have been observed, there should have been enquiry under Section 5 (i)(iii), but nothing was done on the same old verification report, the proceeding continued but the verification report was ignored on the point of classification of the land without there being any fresh material for coming to the conclusion that the lands are not Class IV but Class I land. In the proceeding the deed of gift which were earlier held to be inconsonance with the provisions of the erstwhile act being within the permissible period and as such not liable for any enquiry, these gift deeds were annulled. Even if the deed of gift was ignored in that case also the petitioner and her sister being the legal heirs were entitled for one unit on their account as well as one unit which was allowed to Bhagirathi Devi, the land holder who being alive on 9.9.1970.
(13.) In the counter affidavit the respondents have admitted that the information was given by the petitioner and her sister that Bhagirathi Devi is dead and they should be substituted as legal heirs. Even then a proceeding continued in the name of a dead person and the order was passed against a dead person. The Collector did not direct, the impugned order for publication of notification under Section 11 (i) of the Act and he directed to publish notification under Section 15 (i) of the Act. Section 11 (i) provides a valuable right to the land holder as an appeal under Section 30 of the Ceiling Act can be preferred only against the publication of notification under Section 11 of the Act. Since there was no publication of notification under Section 11 (1) of the Act, the petitioner had no option to prefer any appeal or revision. Under these circumstances, they have rightly come before this Court and filed this application. Non publication of the notification under Section 11 (1) of the Act is a serious illegality and it goes to the root of the case. Another illegality which has rightly been pointed out by the petitioner is that the notification under section 15 (1) of the Act has been published in the name of a dead person Bhagirathi Devi. In the counter affidavit, there is no statement regarding publication of the gazette notification under Section 11 (1) as well as the illegality committed by the respondents by publishing a gazette under Section 15 (1) in the name of the dead person.
(14.) So far the reopening of the case is concerned, the petitioner cannot now raise this question as they have opted to participate in the proceeding after reopening of the case. If they were aggrieved by reopening of the ceiling proceeding in that case they should have challenged the jurisdiction of the respondents at the initial stage itself. Once they have submitted themselves before the jurisdiction of the respondents, they are restrained from challenging the reopening.
(15.) On consideration of the facts and circumstances of the case the order dated 3.9.2001 (Annexure-2) and the gazette notification dated 20.11.2001, Annexure-2/A is quashed. The matter is remanded to the Collector, Kaimur at Bhabhua for fresh consideration in accordance with law.
(16.) The respondent No. 2 will see that objection of the petitioners regarding gift deed, unit and classification are properly considered and there after order is passed for publication of gazette under Section 11 (1) of the Act. Till then, lands are not distributed