DADAN RAM AND ORS.versusSTATE OF BIHAR AND ORS.

        --                          DADAN RAM AND ORS.                                 A
                                              v.
                                   STATE OF BIHARAND ORS.

                                     NOVEMBER 23, 2007
_.
     __..._
                                                                                       B
                    [TARUN CHATTERJEE AND P. SATHASIVAM, JJ.]


                   Land Ceiling:
                     Bihar Land Reforms (Fixation of Ceiling Area and Acquisition c
               of
                - Surplus Land) Act, 1961-s.45-B-Land declared as .surplus-
               Distributed to downtrodden-Parcha issued in their name and
              possession also delivered-Reopening of case under s.45-B without
               issuing or giving opportunity ofhearing to parcha holders in possession
               ofland-Correctness of-Held: Not correct-Proceedings under s.45- D
         1     Bare quasi judicial in nature-Before reopening the concluded issue,
              authority had to satisfy minimum requirement ofprinciples ofnatural
              justice by issuai:ce ofnotice and hearing-Natural justice-Principles
               o.f
                                                                                        E
                   The ceiling surplus proceedings was initiated against the
              respondent No.8 and notice to the said effect was issued. The landholder,
              respondent No.8, his wife and minor children were holding land totalling
              19 acres 71 decimals. The concerned authority declared 4.64 acres of
              land as surplus and accordingly notification unders.15 ofthe Bihar Land
                                                                                        F
              Reforms (Fixation ofCeiling Area and Acquisition ofSurplus Land) Act,
              1961 was issued. Respondent no.8 unsuccessfully filed appeal before
              Commissioner and revision before Board of Revenue. Writ petition for
              quashing the earlier orders was dismissed by the High Court.
              Subsequently another writ application was filed in High Court by
                                                                                        G
 ·-J          respondent No.8 and the same was disposed of with direction to raise
              the matter before the Collector of the District within 2 weeks.
              Respondent No.8 did not file application before the District Collector.
              Therefore, after the expiry of said period, the High Court's order
                                               507                                    H
    508           SUPREME COURT REPORTS                  [200~ 1 12 S.C.R.



A became infructuous. The wife of respondent No.8 filed an application
  before the District Collector for re-opening the case under s.45-B and
  the same was dismissed. Challenging the order ofdismissal and previous
  orders passed in appeal and revision filed by respondent No.8, an
  application under s.32 was filed before Board of revenue which was
B disposed of with direction that Collector should ascertain the allegation.
  After final publication under s.15(1), the aforesaid excess land i.e. 4
  acres 64 decimals was distributed to 8 down-trodden people. Parchas
  were issued in their name and the possession was also delivered to them.

C      The District Collector transferred the case to the Court of
  Additional Collector who re-opened the case and held that the land
  holder has no excess land. Before disposal of the application under s.45-
  B, no notice was issued nor opportunity was given to the appellants with
  whom the aforesaid lands were in possession. High Court dismissed the
D writ petition filed by appellants. Hence the present appeal.
          Partly allowing the appeal, the Court

        HELD: 1.1. S.45-B of the Bihar Land Reforms (Fixation of Ceiling
  Area and Acquisition of Surplus Land) Act, 1961 was inserted by Bihar
E Act 22of1976. Prior to the aforesaid amendment, there was no such
  power enabling the Collector, Member, Board of Revenue or State
  Government to re-open the case for fresh disposal which had been
  concluded. By the aforesaid s.45-B, power has been vested in the State
  Government or in the Collector of the District (since deleted by Act 8
F of1997) for re-opening of cases which had been disposed of so that they
  may be heard afresh in accordance with the provisions ofthe Act Though
  the amended provision contains very wide and extra-ordinary power,
  admittedly no guidelines have been provided as to when such power is
  to be exercised. In fact, no period oflimitation has been fixed, the result
G whereof may be that a proceeding which had been initiated under the
  provisions of the Act and has been concluded by final orders passed by
  the origina~ appellate and the revisional authority can be re-opened after
  lapse of several years. The amended provision also makes it clear that
  while exercising powers under the said provision, no one can act as an
H appellate or revisional court. It is an extra-ordinary power which can
                              DAD AN RAM v. ST ATE                           509

           be invoked only if earlier order is found to have been passed not in A
           accordance with the Act. [Para 11] [514-B, C, D, E]

                 1.2. The proceedings under the amended section are quasi judicial,
           the right to get opportunity of hearing cannot be denied in such
           proceedings. Therefore prior to re-opening, issue of notice and
                                                                                     B
           opportunity ofhearingofthe land holder or person in possession of the
     J,
           land are mandatory. Further, the said power to re-open has to be
           exercised sparingly and for adequate reasons and the proceeding
           concluded earlier cannot be re-opened merely for verification whether
           the orders were correctly passed. The reason for issuing a show cause
           notice is very clear in view of the fact that a proceeding once concluded
                                                                                     c
           after a regular hearing should not be ordered to be re-opened suo motu
           by the authorities concerned in a capricious manner and reasonableness
           requires that parties to be affected by the same should be heard.
                                  [Paras 11and12] [514-E, F, G; 516-G; 517-A, BJ
                                                                                     D
                Baban Paswan and Anr. v. Pratima Devi and Ors., [2003] 10 SCC
           239, relied on.
                 2. The orders impugned suffer from the infirmity of not giving
           reasonable opportunity to the appellants before reopening the E
           proceedings. The order, therefore, is liable to be set aside. However,
           the State Government is free to pass fresh order if they so desire under
           s. 45-B of the Act after affording opportunity to all the parties including
           the appellants. [Para 13] [517-B, C, DJ
               CIVIL APPELLATE JURISDICTION: Civil Appeal No. 26 of F
           2001.
               From the final Judgment and Order dated 14.9.1999 of the High
           Court of Judicature at Patna in L.P.A. No. 1545of1997.
                S.B. Sanyal and Ranjan Mukherjee for the Appellants.                G

--- ----         P.S. Mishra, Dhruv Kumar Jha, Upendra Mishra, Ravi Chandra
           Prakash, Himanshu Shekhar, Gopal Singh, AI1ukul Raj and Manish Kumar
           for the Respondents.
                                                                                   H
    510            SUPREME COURT REPORTS                  [2007] 12 S.C.R.


A         The Judgment of the Court was delivered by
        P. SATHASIVAM, J. (I) Whether the "parcha holders", who are
  in possession of the land in question, have any right to be heard in a
  proceeding arising out of Section 45-B of the Bihar Land Reforms
B (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961
  (hereinafter referred to as the 'Act') is the only question to be decided in
  this appeal.
        (2) This appeal is directed against the impugned final judgment and
  order dated 14.9.1999 passed by the Division Bench of the High Court
C of Judicature at Patna in LP.A. No. 1545of1997 whereby the High
  Court dismissed the LP.A. filed by the appellants herein against the
  judgment and order dated 24.11.1997 passed by the learned single Judge
  of the High Court in C. W.J.C. No. 12036 of 1996 arising from a
  proceeding under Section 45-B of the Act.
D
        (3) The Ceiling (surplus) proceedings bearing Ceiling Case No. 149
  of 1973-74 were initiated against Nand Kishore Tiwari, respondent No.8
  herein and a notice to the said effect was issued to him under Section
  6(1) of the Act in Form LC-I as prescribed under Rule 5 under the said
E Act and respondent No.8 submitted a return under the said Act in respect
  of his entire land, total 19 acres 71 decimals. The aforesaid land was found
  to be owned and possessed by the family as defined in Section 2(ee) of
  the said Act i.e. land holder, respondent No.8, his wife - Sumitra Devi
  and their two minor children as on appointed day i.e., 9. 9.1970 and
F ultimately the authority concerned by holding 15 acres of class I lands
  was permitted to be retained by respondent No.8 under Section 5(1) and
  the remaining 4.64 acres ofland were declared as surplus. Final publication
  of draft statement under Section 11 (I) of the said Act was accordingly
  made and subsequent to that a notification under Section 15( I) was also
G issued on 15.1.1993. Against the said notification, respondent No.8 filed
  an appeal under Section 30(1 )(b) of the Act before the Commissioner,          ,.__   ___
  Patna Division, Patna bearing Ceiling Appeal No. 160 of 1994. The
  Commissioner dismissed the appeal on merits. Dissatisfied therewith, a
  Ceiling Revision was filed before the Member, Board of Revenue, Bihar,
H Patna which was also dismissed. Writ Petition filed for quashing the earlier
                  DADAN RAM v. STATE [P. SATHASIVAM, J.]                            511

    >-·
          orders was dismissed by the High Court. Subsequently another writ                 A
          application which was filed in the High Court by respondent No.8 herein
          and the same was disposed of with a direction to raise the matter before
          the Collector of the District within two weeks from the date of the receipt
          of the order. However, no such application was filed by respondent No.8
          before the District Collector, therefore, after the expiry of said such period,   B
          the High Court's order became infructuous. The wife of respondent No.8,
          namely, Sumitra Devi filed an application before the District Collector for
          re-opening the case under Section 45-B of the Ceiling Act and the same
          was dismissed. Challenging the order of the District Collector as well as
"
«         the orders of the appellate Court which was passed in the appeal filed            C
          by respondent No.8 and the order passed in Revision application, an
          application under Section 32 of the Act was also filed before the Member,
          Board of Revenue, Bihar and the same was finally disposed of on
          12.7.1995 with a direction that the Collector shall ascertain the allegation.
          After final publication under Section 15(1) of the Ceiling Act, the aforesaid     D
          excess land i.e. 4 acres 64 decimals was distributed to 8 down-trodden
          people of the village and separate parchas were issued in name of the
          aforesaid eight persons and the possession was also delivered to them.
          The District Collector transferred the case to the Court of Additional
          Collector who re-opened the case, conducted the impugned proceedings              E
          in question and held that the land holder has no excess land. Accordingly,
          he set aside the notification issued under Section 15(1) of the Ceiling Act.
          Respondent No.5 before disposal of the application under Section 45-B
          of the Ceiling Act, did not issue notice nor opportunity was given to the
          appellants with whom the aforesaid lands were in possession.                      F
                (4) Being aggrieved, the appellants filed C.W.J.C. No. 12036 of
          1996 before the High Court. Learned single Judge of the High Court
          dismissed the same. Dissatisfied therewith, LP.A. was filed before the
          Division Bench of the High Court of Patna. The Division Bench of the G
          High Court dismissed the same affirming the order passed by the learned
          single Judge. Aggrieved by the said order, the appellants filed the present
          appeal by way of special leave petition.
               (5) We heard Mr. S.B. Sanyal, learned senior counsel for the
                                                                                            H
    512           SUPREME COURT REPORTS                   [2007] 12 S.C.R.


A appellants and Mr. P.S. Mishra, learned senior counsel for the contesting
  private respondent No!>. 8 and 9 and Mr. Gopal Singh, learned counsel
  for the State of Bihar.

        (6) After taking us through the entire proceedings including the orders
B passed by the authorities under the Act as well as the High Court, Mr.
  S.B. Sanyal, learned senior counsel, for the appellants mainly submitted
  that inasmuch as the appellants-parcha holders who were in lawful
  possession of the land in question and continuing the same even today
  are entitled to notice and opportunity of being heard in a proceeding arising
c out of Section 45 of the Act. He also contended that in view ofabuse of
  process by the contesting private respondent Nos. 8 and 9 who are none
  else than husband and wife, all the orders are liable to be quashed. On
  the other hand, Mr. P.S. Mishra, learned senior counsel for respondent
  Nos. 8 and 9 submitted that in view of order of status quo which was
D passed in the presence of both parties even in the absence of the separate
  notice in a proceeding under Section 45-B of the Act in the facts and
  circumstances, the rules of natural justice were substantially complied with
  and hence there is no ground for interference by this Court under Article
  146 of the Constitution ofindia.
E        (7) We have carefully perused the annexures and relevant materials
    and considered the rival contentions with reference to the pleadings.
        (8) If we accept the first contention of the learned senior counsel
  for the appellants, namely, notice or opportunity of being heard in a
F proceeding under Section 45-B of the Act, there is no need to consider
  the other contentions. It is seen from the materials placed, after proper
  notice, the land holder and respondent No.8, and his wife - Sumitra Devi
  and their two minor children on the appointed day, i.e., 09.09.1970 were
  permitted to retain 15 acres of Class-I lands and the remaining 4.64 acres
G ofland were declared as surplus. Based on the same, a notification under
  Section 15(1) was issued on 15.01.1993. The appeal as well as the
  revision filed against the same was dismissed. The writ petition filed by
  the 8th respondent was also dismissed. When special leave petition was
  filed against the order of the High Court, the same was disposed of with
H a permission to the applicant to raise the matter before the Collector of
             DADAN RAM v. STATE [P. SATHASIVAM, J.]                          513


     the concerned District. It is brought to our notice that though no such         A
     petition was filed by the 8th respondent, subsequently his wife - Sumitra
     Devi - 9th respondent herein has filed an application before the District
     Collector, Bhojpur - 4th respondent-herein for re-opening the case under
     Section 45-B of the Act. The said application was dismissed by the
     District Collector and subsequent to that an application under Section 32       B
_j   of the said Act was filed before the Member, Board of Revenue, Bihar
     challenging the entire order of the District Collector. The same was finally
     disposed of on 12.07.1995 with a direction to the Collector to consider
     the grievance ofSumitra Devi. It is further seen that the District Collector,
     Bhojpur transferred the case to the Court of Addi. District Collector who       C
     re-opened the case and found that the land holder has no excess land
     and notification issued under Section 15(1) of the Act was to be set aside.
     Questioning the said proceedings, the appellants filed CWJC No. 12036
     of 1996 before the High Court, Patna. Learned Single Judge, who heard
     the matter, dismissed the same by order dated 24.11.1997. Dissatisfied          D
     with the said order, an appeal was filed before the Division Bench in L.P.A.
     No. 1545 of 1997 which was also dismissed affirming the order dated
     24.11.1997 passed by the learned Single Judge.
           (9) At this juncture, it is relevant to mention that based on the earlier E
     proceedings holding that the 8th respondent herein was having excess land
     of 4.64 acres, the authority concerned, after following the procedure, and
     after proper verification assigned the excess lands in favour of the
     appellants. According to them, from that date onwards, they are in
     possession of the assigned lands and they are the 'parcha-holders'.
                                                                                     F
           (10) Since initially at the instance of 8th respondent and thereafter
     his wife - Sumitra Devi - 9th respondent-herein, the case was re-opened
     and found no excess land available, it is useful to refer the relevant
     provision, i.e., Section 45-B of the Act. The said provision was inse1ted
     by Bihar Act 22 of 1976. The Section reads as under:-                           G
            ''45-B. State Government to call for and examine records.- The
            State Government *[or I he Collector of the district who may
            be authorized in this behalf] may, at any time, call for and
            examine any record of any proceeding disposed of by a Collector H
    514            SUPREME COURT REPORTS                   [2007] 12 S.C.R.


A          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."

           * Deleted by Act 8 of 1997
B        (11) It is not in dispute that prior to the aforesaid amendment, there
   was no such power enabling the Collector, Member, Board of Revenue                . ._
   or State Government to re-open the case for fresh disposal which had
   been concluded. By the aforesaid Section 45-8, power has been vested
   in the State Government or in the Collector of the District (since deleted
C by Act 8 of 1997) for re-opening of cases which had been disposed of
   so that they may be heard afresh in accordance with the provisions of
  the Act. Though the amended provision contains very wide and extra-
   ordinary power, admittedly no guidelines have been provided as to when
   such power is to be exercised. In fact, no period of limitation has been
D fixed, the result whereof may be that a proceeding which had been initiated
  under the provisions of the Act and has been concluded by final orders
  passed by the original, appellate and the revisional authority can be re-
  opened after lapse of several years. The amended provision also makes
  it clear that while exercising powers under the said provision, no one can
E act as an appellate or revisional court. It is an extra-ordinary power which
  can be invoked only if earlier order is found to have been passed not in
  accordance with the Act. The proceedings under the amended section
  are quasi judicial, the right to get opportunity of hearing cannot be denied
  in such proceedings. Under this section initially both the State Government/
F Collector has the jurisdiction, but by the amendment Act 8of1997, State
  alone is empowered to re-open such matters for valid reasons. The
  proceedings are quasi judicial in nature. Considering the fact that the State
  Government and previously the District Collector were authorized to re-
  open the issue which was concluded, we are of the view that prior to re-
G opening, issue of notice and opportunity of hearing of the land holder or
  person in possession of the land are mandatory. In the instant case, from       \...._ _
  the materials it is clear that the appellants as parcha holders, though the
  issue was re-opened they were not issued notice or given an opportunity
  to put-forth their case. Though the High Court has concluded that in view
H
        DADAN RAM v. ST ATE [P. SATHASIV AM, J.]                            515

of the order of status quo which was passed in the presence of both                 A
parties including the present appellants, the rules of natural justice were
substantially complied with in view of the power conferred on the State
Government to re-open a case that too even after final notification, the
person/persons who are in possession of the land in question or parcha
holders are entitled opportunity of notice and they must be heard before            B
final decision being taken. In this regard, it is useful to refer to the decision
of this Court in Baban Paswan and Anr. v. Pratima Devi and Ors.,
 [2003) 10 sec 239. The case relates to determination of the ceiling area
in respect of the family of Prabal Pratap Singh and Dinesh Prasad Singh
and it was then worked out that 43.26 acres was excess land. The                    C
Respondent I - Pratima Devi being the sister of the aforesaid two persons
raised some dispute stating that she was not heard in the matter. In the
meanwhile the surplus land was distributed to different persons and the
appellants came into possession of some areas of that surplus land pursuant
to the allotment made in their favour in 1985. Thereafter, Prabal Pratap            D
Singh and Dinesh Prasad Singh filed a writ petition challenging the
aforesaid dete1mination of the excess land and also the distribution in
favour of the appellants. Though the appellants were made parties in the
said writ petition, the High Court ultimately dismissed their writ petition
and the LPA filed by those two persons was withdrawn subsequently.                  E
Thereafter, the !st respondent Pratirna Devi filed CWJC No. 323of1999
before the High Court contending that she was not heard and she was
vitally interested in the matter before determining the ceiling area applicable
to the family of Pratima Devi, Prabal Pratap Singh and Dinesh Prasad
Singh. In that writ petition, the appellants in this Court were not made            F
parties though the land was in the lawful possession of the appellants. The
writ petition was allowed by the High Court by ordering certain areas
claimed by the I st respondent to be excluded from the ceiling limit of the
aforesaid two persons (Prabal Pratap Singh and Dinesh Prasad Singh).
When the appellants came to know about the said verdict of the High                 G
Court in the 'A-rit petition they filed LPA by obtaining permission. But the
LPA was dismissed by a Division Bench of the High Court holding that
the appellants/parcha-holders cannot acquire any right merely because
parcha has been issued in tl1eir favour and since the acquisition has been
held to be invalid they have no option but to walk out. Questioning the             H
    516            SUPREME COURT REPORTS                    [2007] 12 S.C.R.


A said order, the appellants have filed special leave petition before this Court.
  Considering the issue which is similar to our case, this Court held as under:
           "5. We are not inclined to take the view that the appellants are
           not entitled to be heard in the writ petition filed by the I st
           respondent Pratima Devi merely because the determination of the
B
           ceiling area had taken place at a time when the appellants had no
           right in the land. The appellants have been put in possession of
           the land way back in 1985 by holding that it was a surplus area
           pertaining to the family. They being in the enjoyment of the land
           on the strength of the said allotment, they must have the right to
c          substantiate that the allotment has been rightly made in their favour
           and the area was rightfully held to be surplus area."

  After holding so, this Court set aside the judgment passed by the learned
  Single Judge and the Division Bench of the High Court and remitted to
D the High Court for disposal after affording opportunity to the appellants.
  The decision therein is directly applicable to the case on hand particularly
  in the light of the language used in aniended Section45-B of the Act.
        (12) In view of the same, we are unable to agree with the
E observation of the Division Bench that since the appellants had the
  knowledge of the order of status quo passed by the District Collector
  on 24.08.2005, the rules of natural justice were substantially complied
  with. We have already held that prior to re-opening, notice to all the parties
  including person(s) in possession was mandatory. It is not in dispute that
F the case was re-opened and earlier decision was reversed holding that
  there was no excess land without issuing notice to the appellants. Section
  45-B empowers the State Government to re-open the case which was
  already been disposed of by the Collector under the Act. After re-opening
  the case, the State Government is to dispose of the matter afresh in
G accordance with law. It is, therefore, clear that before passing any order
  in a concluded issue, the authority is expected to satisfy the minimum
  requirement of principles of natural justice by issuance of notice and
  hearing. Further, the said power to re-open has to be exercised sparingly
  and for adequate reasons and the proceeding concluded earlier cannot
H be re-opened merely for verification whether the orders were correctly
                     DADAN RAM v. STATE [P. SATHASIV AM, J.]                    517


            passed. The order of re-opening should be passed after hearing the parties A
            concerned and where an order of re-opening the case had been passed
            without hearing the party against whom it was passed, the order suffers
            with legal infirmity and liable to be quashed. The reason behind in issuing
            a show cause notice is precisely very clear in view of the fact that a
            proceeding once concluded after a regular hearing should not be ordered B
            to be re-opened suo motu by the authorities concerned in a capricious
            manner and reasonableness requires that parties to be affected by the same
            should be heard.
                   (13) In this view of the matter, we are of the view that the orders C
            inipugned suffer from the infirmity of not giving reasonable opportunity to
            the appellants before reopening the proceedings. The order, therefore, is
            liable to be set aside. Under these circumstances, the order of the High
            Court both learned Single Judge and the Division Bench are set aside.
            However, the State Government is free to pass fresh order if they so desire D
            under Section 45-B of the Act after affording opportunity to all the parties
            including the appellants herein. Civil appeal is allowed to this extent. No
            costs.
            D.G.                                             Appeal partly allowed.




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