Supreme Court of India
KAMAL KRISHAN RASTOGI & ORS.versusSTATE OF BIHAR & ANR.
- Citation
- 2008 INSC 1012
- Decided
- 3 September 2008
- Disposal
- Appeal(s) allowed
- Bench
- TARUN CHATTERJEE
Holding
The Collector’s order reopening the proceeding was illegal and without jurisdiction, rendering the subsequent revenue orders unsustainable; the High Court judgment and revenue orders are set aside.
Summary
The Collector of Bihar reopened a land‑ceiling proceeding under Section 45‑B of the Bihar Land Reforms Act without giving notice or a hearing to the land‑holder, Sarju Madhav Rastogi. The proceeding was transferred to the Additional Collector, who after a brief appearance by the deceased land‑holder, issued notices in his name and eventually declared a portion of his land surplus. The heirs were never substituted or notified. The heirs challenged the reopening order and the subsequent revenue orders, arguing that the reopening was illegal and that orders passed against a dead person were unsustainable. The Patna High Court rejected this contention, holding that the heirs were estopped from questioning the reopening order because they had participated thereafter. The Supreme Court held that the Collector’s reopening order was illegal and without jurisdiction, that the subsequent orders were therefore unsustainable, and that an order passed against a deceased person is void. The Court set aside the High Court judgment and the revenue orders, allowing the appeals.
Issues considered
- Whether the Collector’s order reopening the land‑ceiling proceeding without notice to the land‑holder is illegal and without jurisdiction.
- Whether subsequent orders passed by the revenue authorities are invalid by virtue of the illegal reopening order.
- Whether the heirs of the deceased land‑holder can challenge the reopening order despite having participated in the proceedings after the reopening.
- Whether an order passed against a dead person is sustainable under the Act.
Legislation cited
- Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961s. 10(2), s. 45, s. 45-B
Subjects
land ceilingBihar Land Reforms ActSection 45-Bnoticejurisdictionheirssubstitutionillegal ordersurplus land
Judgment
[2008] 13 S.C.R. 14
1
A KAMAL KRISHAN R,;STOGI & ORS.
v.
STATE OF BIHAR & ANR.
(Civil Appeal Nos.5771-5772 of 2002)
SEPTEMBER 3, 2008
B
[TARUN CHATTERJEE AND AFTAB ALAM, JJ.]
Bihar Land Reforms (Fixation of Ceiling Area and
Acquisition of Surplus Land) Act, 1961 - s. 45-B - Land ceiling
c proceedings- Re-opened by Collector- Thereafter transferred
to Additional Collector for disposal - Land-holder, 'S', prayed
for time to file objections - But did not file any objection and
died a few months later.:_ No steps taken for substitution of his
heirs in the proceeding - Additional Collector sent notice in
name of 'S' (who was by then dead) fixing hearing of the case
0
- No one appeared in response - Additional Collector passed
orders holding that the land holder was entitled to 78 acres of
class I land and declaring 130. 56 acres of class I land as
surplus - Heirs of 'S' challenged the order of Additional
E Collector in appeal and revision but were unsuccessful - They
filed writ petition contending that the Collector's order
reopening the proceeding was incurably bad and illegal
because it was passed without notice to the land-holder and
consequently, all subsequent orders passed by revenue
authorities were equally illegal and unsustainable - High Court
F rejected the submission, holding that having participated in
proceedings before the Additional Collector and then having
taken the matter in appeal and revision, it was no longer open
to the heirs of 'S' to question the validity of the Collector's
order reopening the proceeding - On appeal, held: It would
G be hardly fair and just to hold that the land-holder took any
part in the proceeding after it was reopened by the Collector's
order - Order of Additional Collector was made against a
dead person and for that reason alone it was unsustainable - ·
Only after the order of Additional Collector, the heirs of 'S'
H 1l
KAMAL KRISHAN RASTOGI & ORS. v. STATE 15
'r OF BIHAR & ANR.
came into picture, when they tried to challenge the same - It A
is, therefore, quite wrong to say that it was not open to the land
holders to question the validity of the reopening order since
they had participated in the proceeding after its reopening -
Order passed by High Court as well as orders of revenue
~
authorities unsustainable in law and set aside. B
The Collector, in exercise of his powers under s.45-
B of the Bihar Land Reforms (Fixation of Ceiling Area and
Acquisition of Surplus Land) Act, 1961, passed order for
re-opening of land ceiling proceeding. The order was
passed without giving notice or opportunity of hearing to c
the landholder. The proceedings were thereafter
transferred to the Additional Collector for disposal. On a
notice issued to him, the land-holder, 'S', appeared before
· the Additional Collector and filed a petition praying for
time to file objections. Thereafter, he neither filed any D
'I'
objection nor ever appeared before the Court and few
months later died. After death of the land-holder, no steps
were taken for substitution of his heirs in the proceeding
nor any notice was sent to the heirs of the deceased 'S'.
The Additional Collector sent a registered notice in the E
' name of 'S' (who was by then dead) fixing the hearing of
the case. No one appeared in response to the notice and
apparently no hearing was done on that date. Then on
receipt of the Circle Officer's report, the Additional
Collector sent another registered notice fixing the hearing F
" of the case. This notice too was addressed to 'S'. Finally,
..... on a subsequent date, the Additional Collector passed
t orders holding that the land holder was entitled to 78
acres of class I land and 130.56 acres of class I land was
declared as surplus. It was also held that no gift was
G
executed within the period permitted under the Act and
that in the earlier proceedings 43.41 acres of land was
}, wrongly excluded on the plea of having been given in gift
by the land-holder to his daughters. The sons of 'S' took
the order of the Additional Collector in appeal and revision
H
16 SUPREME COURT REPORTS [2008] 13 S.C.R.
1
A and being unsuccessful before the revenue authorities
filed writ petition before the High Court. Before the High
Court, it was inter alia contended that the Collector's order
reopening the proceeding was incurably bad and illegal
because it was passed without any notice to the land-
s holder and consequently, all the subsequent orders
passed by the revenue authorities were equally illegal
and unsustainable. The High Court rejected the
submission, taking the view that having participated in
the proceeding before the Additional Collector and then
c having taken the matter in appeal and revision, it was no
longer open to the sons of 'S' to question the validity of
the Collector's order reopening the proceeding. Hence
the present appeals by the sons of 'S'.
Allowing the appeals, the Court
D
HELD:1.1. Whether or not the land holder's
participation in the proceeding before the Additional
Collector would cure the illegality of the reopening order
passed by the Collector is a debatable issue but on
E admitted facts that larger issue does not even arise in the
present case. It would be hardly fair and just to hold that
the land-holder took any part in the proceeding after it
was reopened by the Collector's order. On notice being
issued by the Additional Collector, 'S' appeared before
him on 30th April, 1984 and prayed for time for filing
F objections. He then never appeared and a few months
later died on 27th January, 1985. He did not file any
objection before the Additional Collector. Had he filed one,
he might have taken the precise objection that the
proceeding was without jurisdiction because the
G reopening order was itself illegal and without jurisdiction.
After the death of 'S' his heirs were neither substituted
nor they were given any notice by the Additional Collector.
They did not appear before the Additional Collector.
Significantly, the order of the Additional Collector was
H made against a dead person and for that reason alone it
KAMAL KRISHAN RASTOGI & ORS. v. STATE 17
OF BIHAR & ANR. [AFTAB ALAM, J.]
was unsustainable. It was only after the order of the A
Additional Collector that the heirs of 'S' came into picture
when they tried to challenge the order on many grounds
including the one that the order was passed in a
proceeding that was held on the basis of the Collector's
order that was illegal and without jurisdiction. It is, B
therefore, quite wrong to say that it was not open to the
land holders to question the validity of the reopening
order since they had participated in the proceeding after
its reopening. [Para 8] [22G-H; 23 A-E]
1.2. The judgment and order passed by the High C
Court as well as the orders of the revenue authorities are
unsustainable in law and are set aside. This order,
however, shall not stand in the way of the State
Government in calling and examining the records of the
case and on being satisfied that the materials so warrant D
.., to pass appropriate orders under Section 45-B of the Act.
[Paras 10, 11] [23 F; 23 G]
Maharaja Chintamani Saran Nath Shahdeo vs. State of.
B1har, (1999) 8 SCC 16 - held inapplicable.
E
Case Law Reference
(1999) 8 SCC 16 held inapplicable Para 6
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
21.3.2001 of 2002 F
From the final Orders dated 1.2.2000 and 21.3.2001 of
,
the High Court of Judicature at Patna in C.W.l.C. No. 7439 of
1989 and Civil Review No. 143 2000
P.S. Mishra, Manu Shanker Mishra, Upender Mishra, Ravi G
C. Prakash and Mohan Pandey for the Appellant.
,
Manish Kumar and Gopal Singh for the Respondents.
' >
The Judgment of the Court was delivered by
AFTAB ALAM, J. 1. These two analogous appeals arise H
•
18 SUPREME COURT REPORTS [2008) 13 S.C.R.
1
A from a land ceiling proceeding that was reopened under Section
45-B of the Bihar Land Reforms (Fixation of Ceiling Area and
Acquisition of Surplus Land) Act, 1961 (hereinafter referred to
as 'the Act').
2. In the first round a proceeding was held against the
B land-holder Sarju Madhav Rastogi in Case No. 868 of 1973-
74. In that proceeding he was shown entitled to only two ceiling
units but having 205.83 acres of different classes of land in his
possession. The land holder raised many objections against
the draft statement. He disputed the classification of lands and
C claimed three more units for his three sons who, according to
him, were already major on the appointed date, 9 September,
1970 and further claimed an additional unit for his two minor
grand-sons. He stated that by gift deeds dated 28 September,
1962 he had given 21.98 acres and 21.43 acres respectively
D to his two married daughters: 2.56 acres were taken in
acquisition by the State Government for construction of an
irrigation canal and 9.69 acres was voluntarily surrendered by
him. He contended that all these lands (adding to a total of
55.56 acres) were wrongly shown in the draft statement made
E in his name. The revenue authorities disallowed his objections
and the matter finally came to the Patna High Court in two writ
petitions, C.W.J.C.No.1393 of 1977 (filed by Sarju Madhav
Rastogi and his sons) and C.W.J.C.No.1816 of 1977 (filed by
the two daughters who claimed the lands gifted by their father
F and objected to their inclusion in the land ceiling proceeding
against their father). The two writ petitions were allowed by
judgment and order dated 7 November, 1977 and the matter
was remitted to the Sub-Divisional Officer, Bhabua, for
reconsideration of the matter and to re-examine the land-
G holder's objections in light of the observations made by the
court. In the fresh round following the remand by the High Court
practically all the objections raised by the land-holder were
accepted and the proceeding was dropped by order dated 25
October, 1978 passed by the Additional Collector, L.R., Rohtas,
Sasaram. The order held and found that the land-holder
H
KAMAL KRISHAN RASTOGI & ORS. v STATE 19
OF BIHAR & ANR. [AFTAB ALAM, J.]
possessed 8 acres of class II and 132.01 Y2 acres of class IV A
lands; he was held entitled to five units that added up to 156
acres and thus there was no surplus land in his hands.
3. The matter rested thus when the Collector,_ Rohtas
passed an order on 8 September, 1982 reopening the
- '· proceeding in exercise of the powers under Section 45-B of B
the Act. (Under Section 45-8, as it stood at that time, the Collector
of the district was equally empowered to reopen a proceeding
on going through the records of the case). It is, however, the
admitted position that the order to reopen the proceeding was
passed by the Collector without giving any notice or an c
opportunity of hearing to the land-holder, Sarju Madhav Rastogi.
4. After being reopened the proceeding was renumbered
as Land Ceiling Case No. 64 of 1982. A fresh draft statement
under Section 10(2) of the Act was issued to the land-holder in
D
"f
which he was shown to hold 200.51 acres of class I land and
0.11 acre of class IV land. In the draft statement he was allowed
four units and two additional units for the minors and the rest of
the land was declared surplus.
5. What happened from this stage is important for the purpose E
of the case and we accordingly state the facts exactly as they
appear in the order of the High Court coming under appeal. The
proceeding was transferred before the Additional Collector for
disposal. On a notice issued to him the land-holder, Sarju Madhav
Rastogi appeared before the additional Collector on 30 April, F
-"
1984 and filed a petition praying for time to file objections.
Thereafter, he neither filed any objection nor ever appeared before
the court till his death on 27 January, 1985. It is undeniable that
after the death of the land-holder no steps were taken for substitution
of his heirs in the proceeding nor any notice was sent to the heirs
G
of the deceased Sarju Madhav Rastogi. On 6 February, 1986, the
Additional Collector sent a registered notice in the name of Sarju
Madhav Rastogi (who was by then dead) fixing the hearing of the
" case on 5 February, 1986. No one appeared in response to the
notice and apparently no hearing was done on that date. Then on
H
20 SUPREME COURT REPORTS [2008] 13 S.C.R.
1'
A receipt of the Circle Officer's report on 25 August, 1987, the
Additional Collector sent another registered notice fixing the hearing
of the case on 2 November, 1987. This notice too was addressed
to Sarju Madhav Rastogi. Finally, on 14 January, 1988 the Additional
Collector passed orders holding that the land holder was entitled
B to 78 acres of class I land and the balance 130.56 acres of class
I land was declared as surplus. The order found and held that no
gift was executed within the period permitted under the Act and
that in the earlier proceeding 43.41 acres of land was wrongly
excluded on the plea of having been given in gift by the land-holder
c to his daughters.
6. The sons of Sarju Madhav Rastogi took the order of the
Additional Collector in appeal and revision and being
unsuccessful before the revenue authorities brought the matter
to the High Court in C.W.J.C. No.7439of1989. Before the High
D Court it was inter alia contended that the Collector's order
reopening the proceeding was incurably bad and illegal because
it was passed without any notice to the land-holder.
Consequently, all the subsequent orders passed by the revenue
authorities were equally illegal and unsustainable. The High
E Court rejected the submission. One of the Judges on the Division
Bench, hearing the case, took the view that having participated
in the proceeding before the Additional Collector and then having
taken the matter in appeal and revision it was no longer open
to the writ petitioners to question the validity of the Collector's
F order reopening the proceeding. In paragraph 13 of the judgment
the learned judge observed and held as follows:
"Mr. Rastogi, counsel for the petitioners submitted that no
notice was given to the petitioners in connection with
reopening of the land ceiling proceeding under Section 45-
G B of the Act and as such the same was illegal and without
jurisdiction. Consequently all the orders passed thereafter
are also illegal and not binding on the petitioners. I do not
find any merit in this submission. After proceeding was
reopened, the petitioners instead of challenging the same "'
H appeared and submitted to the jurisdiction of the court
} KAMAL KRISHAN RASTOGI & ORS. v. STATE 21
OF BIHAR & ANR. [AFTAB ALAM, J.]
and participated in the proceedings and as such they are A
estopped from challenging the same at a later stage."
(emphasis added)
The other learned Judge constituting the bench agreed with
the view taken by the first Judge but found the issue sufficiently B
important to give his own reasons for rejecting the submission of
the writ petitioners. The second Judge accepted the legal position
that the reopening order was quite illegal since it was passed
without any notice to the land holder. In paragraph 17 of the
judgment, the other Judge observed as follows: c
'The precise question is whether the order of reopening of
the proceeding dated 8.9.82 being illegal, about which there
can be little doubt as this was done without issuing notice
to the landholder, the subsequent orders passed by the
1'
Additional Collector are also illegal and without jurisdiction." D
(emphasis added)
Nevertheless, the learned Judge held, the illegality of the
reopening order would not affect the subsequent orders passed
by the revenue authorities. The learned Judge observed that E
__ .
,
even though an order might be without jurisdiction the court
would decline to interfere in case the setting aside of that order
should lead to reviving another bad and illegal order. In support
of the principle he relied upon a decision of this Court in
Maharaja Chintamani Saran Nath Shahdeo vs. State of Bihar, F
(1999) 8 sec 16. we fail to see the application of the Supreme
Court decision or the principles invoked by the learned Judge
as it is not clear to us what other illegal order might have been
revived as a result of setting aside the reopening order passed
by the Collector. It surely cannot be the order by which the G
proceeding was earlier dropped because the law mandates
that before that is held to be bad and reopening is ordered the
land-holder must be given an opportunity to defend that order.
In other words, the earlier order dropping the proceeding cannot
be said to be bad prima facie and declared as such unilaterally.
H
·~
22 SUPREME COURT REPORTS [2008] 13 S.C.R.
A That being the position there is no question of an illegal order
getting revived as a result of setting aside the order to reopen
the proceeding that was admittedly passed in an illegal manner.
7. The learned judge then proceeded to examine the
different natures and shades of jurisdiction and cited a number T
B of decisions to elaborate the point. But at the end an erudite
discussion he also, like the first Judge, fell back on the argument
that it was no longer open to the writ petitioners to question the
validity of the reopening order since they had fully participated
in the proceeding after it was reopened. In paragraph22 of the
c judgment the learned judge observed as follows:
"Section 45-B empowers the State Government or the
Collector of the district authorized in that behalf at any time
to call for and examine any record of any proceeding
disposed of by Collector under the Act and, if it thinks fit, to
D direct that the case be reopened and disposed of afresh in
accordance with the provisions of the Act. As held by this
Court, it is mandatory to issue notice and give an opportunity
of hearing to the landholder before any order for reopening
a concluded proceeding is passed. Thus, where notice is
E not given the order has to be treated as illegal and, within
the extended meaning of the term, as per the aforequoted
observation of the Supreme Court, also without jurisdiction.
But that does not mean that on that ground alone the
subsequent orders would also become illegal, particularly
when the petitioner participated in the proceedings, thus,
F acquiescing in the jurisdiction of the Additional Collector
which he undisputedly possessed."
(emphasis added)
8. We are unable to agree with the view taken by the High
G Court. Whether or not the land holder's participation in the
proceeding before the Additional Collector would cure the
illegality of the reopening order passed by the Collector is a
debatable issue but we see that on admitted facts that larger
issue does not even arise in the case. It would be hardly fair
H and just to hold that the land-holder took any part in the
KAMAL KRISHAN RASTOGI & ORS. v. STATE 23
OF BIHAR & ANR. [AFTAB ALAM, J.]
proceeding after it was reopened by the Collector's order. As A
seen above, on notice being issued by the Additional Collector,
Sarju Madhav Rastogi appeared before him on 30 April, 1984
and prayed for time for filing objections. He then never appeared
., and a few months later died on 27 January, 1985. He did not
file any objection before the Additional Collector. Had he filed B
one, he might have taken the precise objection that the
proceeding was without jurisdiction because the reopening
order was itself illegal and without jurisdiction. Admittedly, after
the death of Sarju Madhav Rastogi his heirs were neither
substituted nor they were given any notice by the Additional
Collector. They did not appear before the Additional Collector. c
What is significant here is to note that the order of the Additional
Collector was made against a dead person and for that reason
alone it was unsustainable. It was only after the order of the
Additional Collector that the heirs of Sarju Madhav Rastogi
came into picture when they tried to challenge the order on D
many grounds including the one that the order was passed in
a proceeding that was held on the basis of the Collector's
order that was illegal and without jurisdiction. It is, therefore,
quite wrong to say that it was not open to the land holders to
question the validity of the reopening order since they had
E
participated in the proceeding after its reopening.
9. As noted above, the order of the Additional Collector
was also unsustainable for the additional reason that it was
...:, passed against a dead person .
10. For all these reasons we are satisfied that the judgment F
and order passed by the High Court as well as the orders of the
revenue authorities are unsustainable in law. The appeals are
allowed and the orders of the High Court and the revenue
authorities are set aside.
G
11. This order, however, shall not stand in the way of the
>- State Government in calling and examining the records of the
case and on being satisfied that the materials so warrant to
pass appropriate orders under Section 45-B of the Act.
. B.B.B. Appeals allowed . H
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