Supreme Court of India
ASHOK KUMAR PANDEY & ORS.versusSTATE OF BIHAR
- Citation
- 2008 INSC 621
- Decided
- 9 May 2008
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
The Collector validly re‑opened the proceeding after due notice and hearing, and lands transferred after the notified date without permission are deemed selected by the land‑holder, with mortgaged land considered part of the land‑holder’s holdings.
Summary
The appellants, Ashok Kumar Pandey and others, had mortgaged portions of their land in 1966 and later transferred the same lands to the mortgagees by registered deeds in 1972, after the notified ceiling date of 9‑9‑1970 under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. Land‑ceiling proceedings were initiated in 1975, the case was dropped in 1981 after the transfers were held valid, and the orders became final. In 1993 the Collector, invoking Section 45‑B, issued a show‑cause notice and, after a 14‑year delay, re‑opened the case in 1995, treating the 1972 transfers as illegal and declaring surplus land. The appellants challenged the re‑opening and argued that mortgaged land should not be counted as their land under Section 2(g). The Supreme Court held that the Collector had complied with the procedural requirements of Section 45‑B and that mortgaged land is deemed the land of the land‑holder; consequently, transfers made after the notified date without prior permission are treated as land selected for retention within the ceiling area. The Court dismissed the appeal, upholding the revenue authorities’ orders.
Issues considered
- Whether the District Collector could validly re‑open a concluded land‑ceiling proceeding after a 14‑year lapse under Section 45‑B of the Bihar Land Reforms Act.
- Whether lands transferred to mortgagees after the notified ceiling date, without prior written permission, are to be treated as selected land within the ceiling area.
- Whether the definition of ‘land holder’ under Section 2(g) excludes mortgaged land from the land‑holder’s holdings.
Legislation cited
- Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961s. 10(2), s. 10(3), s. 18, s. 2(eee), s. 2(g), s. 45-B, s. 5(ii), s. 5(iii), s. 9(2)
Subjects
land ceilingre‑opening of proceedingsmortgaged landsurplus landshow cause noticeBihar land reformsceiling limitsection 45‑B
Judgment
[2008] 8 S.C.R. 162
A ASHOK KUMAR PANDEY & ORS.
II.
STATE OF BIHAR
(Civil Appeal No. 7770 Of 2001)
MAY 9, 2008
8
[DR. ARIJIT PASAYAT, P. SATHASIVAM AND DR.
MUKUNDAKAM SHARMA JJ.]
Bihar Land Reforms (Fixation of Ceiling Area and Ac-
c quisition of Surplus Land) Act, 1961:
s. 45 - Re-opening of proceedings under- After 14 years
- Challenge to - Held: On facts, not tenable - Case herein
was re-opened after issuance of show cause notice and after
hearing of objection of the land holders - In absence of any
D time limit, such action taken in order to ascertain the actual I
eligible land holding~, could not be faulted with - Show cause
notice was issued to the land holder and they were heard on
the point of draft publication prior to passing of the order -
Order regarding draft publication was passed after taking into
E consideration all the relevant facts.
ss. 2(g), 5(iii), 9(2) - Land mortgaged in 1966 - And in
1972 transferred by the land-holders to ihe same mortgagees
- Land Ceiling proceedings initiated under the Act - Whether ~
•
the mortgaged lands, possession of which was handed over
F to the mortgagees by the mortgagor-land holders, could be
included within lands of the land holders - Held: Mortgaged
land is essentially considered as land of the land holder -
Mortgage of the land in 1966 could not be considered as a
transfer prior to the notified date i.e. 9-9-1970 - Lands were
G transferred by registered sale deed after 9-9-1970 and the title
passed only thereafter - High Court was right in concluding
that transfers made in 1972 having been made after 9-9-1970,
with or without permission, be treated as lands selected by the
land holders for purpose of retention of their lands within their
H 1 62
ASHOK KUMAR PANDEY & ORS. v. 163
STATE OF BIHAR
'J
ceiling units in terms of s. 9(2). A
Appellants, land-holders, mortgaged the lands in
question in 1966 and in 1972 transferred the said lands to
the same mortgagees. In 1975, Land Ceiling proceedings
were initiated under the provisions of the Bihar Land Re-
forms (Fixation of Ceiling Area and Acquisition of Surplus 8
... Land) Act, 1961. After coming into force of the Act, no per-
son could hold land beyond the ceiling limit after the ap-
pointed d~y i.e. 9-9-1970. Appellants, land-holders claimed
exemption of the land sold to the mortgagees. An enquiry
was contemplated under s.5(iii) of the Act. The transfers c
made to the mortgagees were found to be genuine and
valid. The proceedings were thereafter dropped. No ap-
peal, revision or review was filed against the same.
14 years later, the Revenue Authority re-opened the
D
proceedings in exercise of power under s.45-8. It did not
accept th& transfers made in favour of the mortgagees,
on the ground that the sale deeds were executed after 9-
9-1970, and held that the transferred lands have to be in-
eluded within the ceiling area to be retained by the Appel-
lants land-holders. The order of the Revenue Authority E
was upheld by the High Court.
In appeal to this Court, it was contended on behalf
" of the Appellants that after inordinate delay of 14 years,
the Collector was not justified in re-opening a concluded F
proceeding in exercise of power under s.45-B of the Act
and that even if the transfers made by the land holders in
the year 1972 in favour of the mortgagees are to be ig-
nored on the ground that the same was without obtain-
ing prior approval of the Collector in writing as required
G
under s.5(ii) of the Act, still the mortgaged lands, the pos-
" session of which has been handed over to the mortgag-
ees by the mortgagor-land holders, cannot be included
within the lands of the land holders in view of the defini-
tion of "land holder" as defined in s.2(g) of the Act.
H
164 SUPREME COURT REPORTS [2008] 8 S.C.R.
A Dismissing the appeal, the Court
HELD: 1. Insofar as the first contention regarding re-
opening of the case under s.45-B of the Act is concerned,
it is seen that the District Collector, finding fault with the
disposal of the case, re-opened the case after issuance
B of show cause notice and after hearing the objection of
the land holders. A reading of the above provisions, mainly •
s.45-B, makes it clear that after affording an opportunity
to the land holder, the Collector of the District (since omit-
ted by Act No.8/97) or the State Government call for and
C examine any proceeding and direct the case to be re-
opened and dispose of afresh. In absence of any time limit,
the action taken by the Collector in order to ascertain the
actual/eligible land holdings, cannot be faulted with. How-
ever, the said provision mandates that aggrieved person
D must be afforded an opportunity by way of show cause
notice. It is sP-an from the order of the Additional Collec-
tor, the show cause notice was issued to the land holder
and they were heard on the point of draft publication prior
to passing of the order. The order further shows that the
E enquiry report was received from the Circle Officer,
Belsand, regarding the partition taken place between the
members of the family of the land holders. The order fur-
ther shows that after taking into consideration all the rel-
evant facts, the order regarding the draft publication was •
F passed on 10.10.1995. Accordingly, contention of the ap-
pellants was rejected. [Para 8] [170-G, 171-A,D]
2. Coming to the other contention, the mortgaged
land is essentially considered as the land of the land
holder. In those circumstances, the mortgage of the land
G in 1966 cannot be considered as a transfer prior to
9.9.1970. Admittedly, the lands were transferred by regis- . _
tered sale deed after 9.9.1970 and the title has passed only
thereafter. The High Court correctly concluded that trans-
fers made on 2.8.1972 and 4.8.1972 having been made
H after 9.9.1970 with or without permission be treated as
ASHOK KUMAR PANDEY & ORS. v. 165
STATE OF BIHAR [P. SATHASIVAM, J.]
)
lands selected by the land holders for the purpose of re- A
tention of their lands within their ceiling units in terms of
s.9(2) of the Act and dismissed their writ petition. [Paras
9, 12] [171-E,F,G, 172-E,F,G]
3. In view of s.45-B of the Act and the fact that the trans-
fers of land in favour of mortgagees on 2.8.1972 and 8
4.8.1972 having been made after the notified date, i.e.,
9.9.1970 without prior permission from the authority con-
cerned, the same are to be treated as lands selected by the
land holders for the purpose of retention of their lands
within their ceiling units and consequently, the orders of C
Revenue Authorities cannot be faulted with. Also the show
cause notice was issued to the appellants and thereafter
after affording a further opportunity, an order was passed
determining their surplus land. In view of the statutory pro-
visions and of the fact that the appellants were afforded D
adequate opportunity before passing the order declaring
certain lands as surplus lands and all the relevant aspects
having been duly considered by the hierarchy of revenue
authorities as well as the High Court, there is no valid
ground for interference. [Paras 13, 14] [172-G, 173-A,B,C] E
CIVILAPPELLATEJURISDCTION: CivilAppeal No. 7770
of 2001
· From the Judgment & Order dated 29.1.1999 of the High
Court of Judicature at Patna in LP.A. No. 1173/1998 F
Lakshmi Raman Singh for the Appellants.
Gopal Singh and Manish Kumar for the Respondent.
The Judgment of the Court was delivered by
G
P. SATHASIVAM, J. 1. Challenge in this appeal is the fi-
nal judgment and order dated 29.1.1999 passed by the Divi-
sion Bench of the High Court of Judicature at Patna in LP.A.
No. 1173 of 1998 whereby the High Court dismissed the said
appeal of the appellants herein.
H
166 SUPREME COURT REPORTS [2008] 8 S.C.R.
A 2. The brief facts in a nutshell are:
The appellants are the land-holders. On 11.2.1966, Ram
Nandan Pandey, the father of the appellants, mortgaged 6 Big ha
15 Katha of land to one Md. Kuddus and subsequently on
4.8.1972, he transferred the said land along with some other
B land to the same mortgagee. On 11 :02.1966, one Rajendra
Pandey, the brother of Ram Nandan Pandey mortgaged 6 Bigha ~
4 Katha 10 Dhur land to one Md. Alam. After the death of
Rajendra Pandey, his widow Chandrakala Devi transferred the
said land to Md. Alam.
c
3. On 27 .12.1975, a proceeding being Land Ceiling Case
No.40 of 1975 was ir.itiated against Ram Nandan Pandey un-
der the provisions of the Bihar Land Reforms (Fixation of Ceil-
ing Area and Acquisition of Surplus Land) Act, 1961 (hereinaf-
ter referred to as "the Act"). In the draft statement published un-
D
der Section 10(2) of the Act, the land holders were shown in
possession of 126.38 acres of Class IV land and after allowing
three units for Ram Nandan Pandey, Smt. Chandrakala Devi -
the widow of Rajendra Pandey and Ashok Kumar Pandey, 36.38
acres was shown as surplus land. The land holders filed objec-
E tions against the said claiming, inter alia, one more separate
unit for Arun Kumar Pandey and exemption of 12 Big ha 19 Katha
10 Dhur of land which were sold to the mortgagees - Md.
Kuddus and Md. Alam respectively. An enquiry was contem-
>
plated under section 5(iii) of the Act and the transfers found to
F be genuine and valid as the transferees were found in actual
physical and cultivating possession of the lands transferred and
their names were also mutated in the revenue records of the
Government. The transfers were also effected through regis-
tered documents and for a valuable consideration. They were
G also paying land revenue to the Government. After the enquiry
on 24.4.1981, the Additional Collector, Sitamarhi held that the
land holders were entitled to four units including one separate
unit for Arun Kumar Pandey and the transfer of land in favour of
Md. Kuddus and Md. Alam were genuine and valid transfers.
H Accordingly, on 5.5.1981, the Additional Collector having found
.,
ASHOK KUMAR PANDEY & ORS. v. 167
STATE OF BIHAR [P. SATHASIVAM, J.]
no surplus lands in possession of the land holders, dropped the A
proceeding. The State of Bihar did not prefer any appeal, revi-
sion or review against the order dated 24.4.1981 or against the
order dated 5.5.1981 and those orders were allowed to be-
come final. After dropping of the proceeding, the Ram Nandan
Pandey and his sons transferred 31.41 ~acres of land to dif- s
ferent persons for their legal necessity. Smt. Chandrakala Devi
and her daughters namely Usha Devi and Manju Devi trans-
ferred 29.24 acres of land to different persons for their legal
necessity. In December, 1983, Ram Nandan Pandey died and
by that time his third son Dhruv Kumar was a major. On c
22.4.1993, a notice under Section 45 B of the Act was sent by
the Collector, Sitamarhi to show cause as to why the case be
not re-opened on the ground that 12 Big ha 19 Katha 10 Dhur of
land transferred to Md. Kuddus and Md. Alam were illegally ex-
empted as no previous permission in writing of the Collector
0
was obtained and thus the transfers have been made with mala
fide \ntention of defeating the object of the Act. On 16.8.1993,
the land holders replied to the notice contending that the lands
were rightly excluded after conducting proper enquiry and that
order of exemption had become final as no appeal, revision or
review was preferred by the State against those orders before E
any higher forum as prescribed under the provisions of the Act
and that the matter cannot be re-opened. On 26.6.1995, the
Collector, Sitamarhi re-opened the case in exercise.of his power
conferred under Section 45 B oftheActaftermore than 14 years.
On reconsideration of the materials, the Collector transferred F
the same for disposal to the Court of Additional Collector,
Sitamarhi. On 10.10.1995, the Additional Collector, Sitamarhi
in Land Ceiling case No. 46/76/78/93 did not accept the two
transfers made in favour of the mortgages-Md. Alam and Md.
Kuddus respectively and after granting two units for Ashok Kumar G
Pandey and Arun Kumar Pandey and 20 acres of land for Dhruv
Kumar Pandey, third son of Ram Nandan Pandey, declared
46.39 acres of land as surplus on the ground that the sale deed
were executed after 9.9.1970 without obtaining prior permis-
sion of the Collector and therefore, the transferred lands have H
168 SUPREME COURT REPORTS [2008] 8 S. C.R.
A to be included within the ceiling area to be retained by the land- •
holders and ordered for draft publication of land. The appel-
lants-land holders filed objections under Section 10(3) of the
Act stating that the draft publication was not in conformity with
the order of re-opening of the case and that the fishing enquiry
B is not permissible in law, that 31.42 % acres of land transferred
after dropping of the proceeding out to have been excluded from
the land of land holders, that Dhruv Kumar Pandey was entitled •
to a separate unit, that 5.91 % acres of land acquired by the
State ought to be excluded from the land of the land holders,
C that 39.61 acres of land lying between two bundhs ought to be
classified as Class V land and land belonging to other ought to
be excluded from the land of the land holders. On 22.12.1995,
the Additional Collector, Sitamarhi in Land Ceiling Case No.
40/75 78-93 came to the conclusion that it is not competent to
D examine the authority, jurisdiction and decision of the Collector
to re-open the proceeding and thatonce the case is re-opened,
the entire exercise has to be carried afresh and d~ novo. How-
ever, he exempted 0.90 acres of homestead land and 1.37 acres
of land transferred before 9. 9.1970 from the land of land hold-
ers. All other objections of land-holders were rejected and 24.11
E acres of land was declared as surplus and the office was di-
rected to take steps for publishing the final statement as con-
templated under Section 11(1) of the Act. On 5.1.1996, final
statement was published. Aggrieved by the order dated
22.12.1995, the appellants filed an appeal being Land Ceiling •
F Appeal No.2 of 1996 and the same was rejected by the Collec-
tor, Sitamarhi on 3.6.1996. Being aggrieved by the said order,
the appellants filed Revision No. 50 of 1996 before the Board
of Revenue, Bihar, Patna and the same was also dismissed on
26.12.1997. Against that order, the appellants approached a
G single Judge of the Patna High Court by way of writ petition
being C.W.J.C. No. 2912 of 1998 and the same was also dis-
missed on 10.9.1998. Again the appellants filed LP.A. No. 1173
of 1998 before the Division Bench of the High Court and the
same was also dismissed on 29.1.1999. Against the said or-
H de[, the appellants preferred the above appeal before this Court.
ASHOK KUMAR PANDEY & ORS. v. 169
) STATE OF BIHAR [P. SATHASIVAM, J.]
4. Heard Mr. Lakshmi Raman Singh, learned counsel for A
the appellants and Mr. Gopal Singh, learned counsel appear-
ing for the respondent-State.
5. The only point for consideration in this appeal is whether
the appellants have made out a case for interference in the im-
pugned order of the Division Bench of the High Court and ear- 8
•
lier orders of Revenue Authorities?
6. Learned counsel appearing for the appellants mainly
contended that after inordinate delay of 14 years, the Collector
was not justified in re-opening a concluded proceeding in exer- c
cise of power under Section 45-B of the Act. He also contended
that even if the transfers made by the land holders in the year
1972 in favour of the mortgagees are to be ignored on the
ground that the same was without obtaining prior approval of
the Collector in writing as required under Section 5(ii) of the
0
Act, still the mortgaged lands, the possession of which has been
handed over to the mortgagees by the mortgagor-land holders,
cannot be included within the lands of the land holders in view
of the definition of "land holder" as defined in Section 2(g) of the
Act.
E
7. In order to appreciate the above contentions, it is useful
1
to refer certain provisions from the Act:
"Section 2(ee) - "Family" means and includes a person,
his or her spouse and minor children;
F
Explanation 1.- In this clause the word "person" includes
any company, institution, trust, association, or body of
individuals whether incorporated or not.
Explanation II.- The personal law shall not be relevant or
be taken into consideration in determining the composition G
of the family for the purposes of the Act;
"Section 2(g) - 'land holder' means a family as defined
in clause (ee) holding land as raiyat or as under-raiyat or
a mortgagee of land in possession or holding land H
170 SUPREME COURT REPORTS [2008] 8 S.C.R.
A permanently settled by Government or lessee of land not
resumable by Government."
"Section 9(2) - Where the land held by the land-holder
includes land transferred by him in accordance with or in
confravention of the provisions of clause (ii) of sub-section
B (1) of section 5, the land so transferred in accordance with
or in contravention of clause (ii) of sub-section (1) of
Section 5 shall, to the extent of the ceiling area admissible
to the land holder, be deemed to have been selected by
him for retention within the ceiling area, and where the
c total area of such land is less than the ceiling area
admissible to him, the land holders shall select the balance
of ceiling area from his remaining land:
Provided that where the land so transferred in accordance
with or in contravention of clause (ii) of sub-section (1) of
D
Section 3 is equal to or more than the ceiling area
admissible to him and if because of the selection under
sub-section (2) the land holder's homestead cannot be
trained within his ceiling area, the land holder may be
permitted to hold his homestead subject to a maximum
E limit of two acres only."
"Section 45-B - State Government to call for and
examine records - The State Government [or the Collector
of the district who may be authorized in ~! is behalf]* may,
F at any time, call for and examine ar} record of any
proceeding disposed of by a Collector under the Act and
may, if it thinks fit, direct that the case be reopened and
disposed of afresh in accordance with the provisions of
the Act.
G * Omitted by Act 8/97."
8. Insofar as the first contention regarding re-opening of
the case under Section 45-B of the Act is concerned, it is seen
that the District Collector, finding fault with the disposal of the
H case, re-opened the case after issuance of show cause notice
ASHOK KUMAR PANDEY & ORS. v. 171
) STATE OF BIHAR [P. SATHASIVAM, J.]
and after hearing the objection of the land holders. A reading of A
the above provisions, mainly Section 45-B, makes it clear that
after afford.ing an opportunity to the land holder, the Collector of
the District (since omitted by Act No.8/97) or the State Govern-
ment call for and examine any proceeding and direct the case
to be re-opened and dispose of afresh. In absence of any time B
limit, the action taken by the Collector in order to ascertain the
actual/eligible land holdings, cannot be faulted with. However,
the said provision mandates that aggrieved person must be
afforded an opportunity by way of show cause notice. It is seen
from the order of the Additional Collector, the show cause no- c
tice was issued to the land holder and they were heard on the
point of draft publication prior to passing of the order. The order
fur.lier shows that the enquiry report was received from the Circle
Officer, Belsand, regarding the partition taken place between
the members of the family of the land holders. The order further
D
shows that after taking into consideration all the relevant facts,
the order regarding the draft publication was passed on
10.10.1995. Accordingly, we reject the contention of the appel-
lants.
9. Coming to the other contention, it is seen from the ma- E
terials that Ram Nandan Pandey and Rajendra Pandey on
11.2.1966 had mortgaged 6 Bigha 15 Katha and 6 Bigha 4
Katha 10 Dhur to Md. Kuddus and Md. Alam respectively and
both the land holders executed registered sale deeds in favour
of the mortgagees on 4.8.1972 and 2.8.1972 respectively. It F
further shows that at the time of passing of the order of draft
publication, the issue had already been discussed at length and
the title of the land was not transferred. Ttie mortgaged land is
essentially considered as the land of the land holder. In those
circumstances, the mortgage of the land in 1966 cannot be con-
G
• sidered as a transfer prior to 9.9.1970. Admittedly, the lands
were transferred by registered sale deed after 9.9.1970 and
the title has passed only thereafter.
10. As per the provisions of Section 18 read with Section
2(eee) of the Act, Ashok Kumar Pandey and Arun Kumar Pandey H
172 SUPREME COURT REPORTS [2008] 8 S.C.R.
A were allowed to retain 30 acres of Class IV land each by treat-
ing them major on 9.9.1970 and both the land holders have in-
herited 10 acres each after the death of their father. After com-
ing into force of the Act, no person can hold the land beyond the
ceiling limit after the appointed day i.e., 9.9.1970. It is further
B seen that Ashok Kumar Pandey has inherited 10 acres of land
from his father and after the death of his father he was holding •
40 acres of land. Similar situation was there in the case of Arun
Kumar Pandey. Taking note of all these relevant materials, the
Additional Collector, by proceedings dated 22.12.1995, arrived
c at a conclusion that an extent of 24.11 acres of land is left as
surplus and declared the same as surplus !2nd.
11. The abovementioned order of the Additional Collector
was duly considered by the Collector and by order dated
3.6.1996 after finding no error, he refused to interfere and dis-
D missed the appeal. The revision filed against the order of the
Collector was heard by the Board of Revenue. Tre Additional
Member of the Board also considered the relevant materials
including the orders passed by the Additional Collector, Collec-
tor and other documents and concurred with the decision. In
E fact, the Board has permitted the appellants herein to approach
the Collector for exercise of option for retaining the land of their
choice in accordance with law.
12. Dissatisfied with the order of the Revenue Authority,
the appellants took the matter to the High Court. The learned
F single Judge correctly concluded that transfers made on
2.8.1972 and 4.8.1972 having been made after 9.9.1970 with
or without permission be treated as lands selected by the land
holders for the purpose of retention of their lands within their
ceiling units in terms of Section 9(2) of the Act and dismissed
G their writ petition. The said order of the learned single Judge
was confirmed by the Division Bench. •
13. As pointed out earlier, in view of Section 45-B of the
Act and the fact that the tran.sfers of land in favour of mortgag-
ees on 2.8.1972 and 4.8.1972 having been made after the no-
H .
ASHOK KUMAR PANDEY & ORS. v. 173
STATE OF BIHAR [P. SATHASIVAM, J.]
tified date, i.e., 9.9.1970 without prior permission from the au- A
thority concerned, the same are to be treated as lands selected
by the land holders for the purpose of retention of their lands
within their ceiling units and consequently, the orders of Rev-
enue Authorities cannot be faulted with. It is also not in dispute
that the show cause notice was issued to the appellants and B
thereafter after affording a further opportunity, an order was
passed determining their surplus land.
14. In view of the statutory provisions and of the fact that
the appellants were afforded adequate opportunity before pass-
ing the order declaring certain lands as surplus lands and all C
the relevant aspects having been duly considered by the hierar-
chy of revenue authorities as well as the High Court, we do not
find any valid ground for interference. Consequently, the appeal
fails and the same is dismissed. There shall be no order as to
costs. D
B.B.B. Appeal dismissed.
)
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