Holding

Section 32B cannot be exercised to revive proceedings that had already concluded before its insertion, and the authority’s default in not issuing a final statement does not prejudice the landholder, rendering the fresh proceedings ultra vires.

Summary

The appellant, a landholder, filed a return under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 in 1973-74 claiming he did not possess excess land. The Deputy Collector in 1976 upheld his claim and ordered the proceedings dropped, but no final statement under Section 11(1) was issued and no appeal was filed. After the Act was amended in 1981 inserting Section 32B, fresh proceedings were initiated in 1993 on the allegation that the appellant had concealed land, and the authorities declared him in possession of surplus land. The High Court held the fresh proceedings permissible because the earlier final statement was never issued. The Supreme Court ruled that Section 32B could not be applied to a case that had already concluded before its insertion, and the authority’s failure to issue a final statement does not prejudice the appellant; consequently, the 1992-93 proceedings were set aside and the matter remitted for fresh determination under the pre‑amendment law.

Issues considered

Whether the failure to issue a final statement under Section 11(1) of the Bihar Land Reforms Act invalidates the earlier order and bars fresh proceedings.
Whether Section 32B, introduced by the 1982 amendment, can be exercised for a case whose original proceedings concluded before its enactment.
Whether fresh proceedings can be initiated on the ground of alleged fraud despite the statutory limitations.
Whether the landholder can be penalised for alleged non‑disclosure of land in the original return.

Legislation cited

Army Act, 1950
Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961s. 10, s. 11, s. 32, s. 32A, s. 32B

Subjects

Land reformsCeiling ActSurplus landFinal statementSection 32BFresh proceedingsStatutory amendmentFraud allegationJurisdiction

Judgment

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_.
~
KUSHESHWAR PRASAD SINGH A
v.
STATE OF BIHAR AND ORS.

MARCH 19, 2007

[C.K. THAKKER AND LOKESHWAR SINGH PANTA, JJ.] B

Bihar Land Reforms (Fixation of Celling Area and Acquisition of Surplus
Land) Act, 1961-s. 32B (as amended by Bihar Act 55of1982)-Returnjiled
by land holder-In proceedings under the Act, landholder held not possessing
surplus land-Final Notification not issued-Order also not challenged-
c
Amendment of the Act permitting initiation of fresh proceedings-At the
instance of one person, alleging that the previous return of landholder did
not disclose full and correct facts, initiation offresh proceedings-Landholder
held to be in possession of surplus land by the Authorities-Single Judge as
well as Division Bench of High Court upholding the finding of the Authorities- D
On appeal, held: Power under section 32B to initiate fresh proceedings
could not have been exercised as the provisions came to the statute book
much after the case of the landholder was over-Failure to issue final
statement was default in discharge of statut01y duty by the Authorities-
Hence cannot prejudice the landholder-However, since the fresh proceedings
were initiated on the ground that the landholder had played fraud, an E
appropriate action can be taken, irrespective of statutory provisions-Matter
remitted to High Court to decide it under the law as it stood prior to
amendment of the Act.

In 1973-74, appellant-landholder filed return under Bihar Land Reforms
F
(Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.
Alleging that the landholder possessed excess land. Collector issued a draft
statement under Section 10. Deputy Collector, Land Reforms, in 1976
recorded a finding that the landholder did not possess surplus land and the
proceedings were required to be dropped. No 'final statement' as required
under Section 11 was issued or published by the Authority. No appeal was G
filed against the order of the Deputy Collector. In 1981, the Act was amended
inter alia permitting initiation of fresh proceedings in certain cases. One
. 'H' thereafter moved an application for intiation of fresh proceedings against

- · the landholder in respect of the return of 1973-74, on the ground that the
95 H
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96 SUPREME COURT REPORTS [2007) 4 S.C.R.
.,
A landholder had not disclosed full and correct facts in the return and in fact J.. "
the landholder possessed more lands than prescribed under the Ceiling Act.
Fresh proceedings were initiated in 1993 and it was held that thf landholder
possessed surplus land and direction was given to take appropriate steps for
issuance of final statement under Section 11. The appeal thereagainst was
dismis~ed by the Collector holding that the landholder was in possession of
B excess land. The Revision Petition was also dismissed by Board of Revenue.
Appellant-landholder filed Writ Petition Single Judge of the High Court held
.,..
that initiation of fresh proceedings were permissible as no final notification
under Section 11 was issued prior to 1981 amendment. Division Bench of
High Court confirmed the decision of Single Judge. Hence the pmsent appeal.
c Partly allowing the appeal, the Court

HELD: 1.1. Final statement under Section 11(1) ofBihar Land Reforms
(Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 ought
to have been issued immediately or in any case within 'reasonable time'. The
D authority cannot neglect to do that which the law mandates and requires doing.
By to issuing consequential final statement under Section 11(1) of the Act,
authority had failed to discharge its statutory duty. Therefore, such default
in discharge of statutory duty by the respondents under thf Act cannot
prejudice the appellant. (Para 10) (100-E-F)
.;
E 1.2. The power under Section 32B of the Act to iriitiate fresh
proceedings could not have been exercised. Admittedly, Section 32B came on
the statute book by Bihar Act 55 of 1982. The case of the appellant was over
much prior to the amendment of the Act and insertion of Section 32B.
Therefore, the authorities cannot be allowed to take undue advantage of its
own default in failure to act in accordance with law and initiate fresh
F
proceedings. (Para ll) (100-G-H; 101-A)

1.3. A man cannot be permitted to take undue and unfair advantage of
his own wrong to gain favourable interpretation of law. It is sound principle
that he who prevents a thing from being done shall not avail himself of the
G non-performance he has occasioned. "A wrong doer ought not be permitted
to make a profit our of his own wrong". (Para 14) (101-F-GJ

Mrutunjqy Pani and Anr. v. Narmada Bala Sasma/ and Anr., AIR (1961)
SC 1353 and Union of India and Ors. v. Major General Madan Lal Yadav
""
H
(Retd.), [1996) 4 SCC 127, relied on.
-
KUSHESHWAR PRASAD SINGH v. STATE OF BIHAR [C.K. THAKKER, J.] 97

.-' Broom's legal Maxims (I 0th Edn.) p. 191, referred to . A
2. In the application filed by 'H', the allegation was that the landholder
had played fraud upon the authorities and on the statute by not furnishing
true and full facts as to the land possessed by him. If it is so, irrespective of
statutory provisions, an appropriate action can be taken. Though the question
was raised before the statutory ~uthorities under the Act, the High Court B
had decided the case only on the basis only on the basis of Section 328 of the
Act which could not have been done. Since Section 328 is not applicable to
the case on hand, it is appropriate to remit the matter to the Division Bench
of the High Court to decide it afresh under the law as it stood prior to
amendment by Bihar Act 55of1982. At the same time, however, the High
Court will consider the case as to whether all requisite facts had been
c
disclosed by the landholder when he filed return in 1973-74 or there was
non-disclosure of certain lands. (Para 15) (102-A-B-C)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7351 of2000.
D
From the Final Judgment and Order dated 13.08.1999 of the High Court
of Judicature at Patna in L.P.A. No. 1117 of 1998.

K.B. Sinha, Bharat Sangal, R.R. Kumar and Samyadip Chatterji for the
Appellant.
E
Mohit Sah, Rituraj Biswas and Gopal for the Respondents.

The Judgment of the Court was delivered by

C.K. THAKKER, J. l. The present appeal is filed by the appellant
against the judgment and order passed by the Division Bench of the High
F
Court of Patna on August 13, 1989 by which it dismissed the Letters Patent
Appeal No. 1177 of 1998 and confirmed the order passed by a Single Judge
on September 24, 1998 in Civil Writ Jurisdiction Case No. 3008of1998.

2. Brief facts of the case leading to the present appeal are that a return
was filed by the landholder under the Bihar Land Reforms (Fixation of Ceiling G
Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as
'the Act'). It was alleged that the landholder possessed excess land. A draft
~ statement under Section I 0 was issued by the Collector under the Act. The
landholder objected to the proceedings and asserted that he did not possess
land in excess of ceiling area. An enquiry was made and verification reports
H
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98 SUPREME COURT REPORTS [2007] 4 S.C.R.

A were submitted by the Circle Officers (Anchal Adhikaris). The Deputy Collector,
Land Refonns, (DCLR) Samastipur, vi de his order dated January 07, 1976
upheld the objection of the landholder and recorded a finding that the
landholder did not possess surplus la~d and the proceedings were required
to be dropped. The case was accordingly disposed of. No appeal was filed
B against the said decision and it had become final. No 'final ~;tatement', as
required under Section 11 of the Act, however, was issued or published by
the authority. The Act was amended in April, 1981 (Bihar Act 5'.i of 1982) and
after Section 32, Sections 32A and 32B came to be inserted. Whereas Section
32A provided for abatement of appeal, revision, review and refe.rence, Section
32B pennitted initiation of fresh proceedings in certain cases. In the present
C case, as already noted earlier, no final statement under Section 11 was issued.
It appears that one Hridya Narayan Yadav, Secretary, Kisan Sabha Darbhanga- ·
cum-Member, Darbhanga District Committee, Bhartiya Communist Party
(Marxist), Darbhanga moved an application in the Court of Additional Collector,
Land Ceiling, Darbhanga along with an affidavit alleging therein that the
landholder had more lands than prescribed under the Ceiling Act, but correct
D facts were not disclosed when the return was filed under the Act by the
landholder in 1973-74. Fresh proceedings were, therefore, initiated in the year
1993 in Land Ceiling Case No. 65 of 1992-93 and statement of landholder was
recorded. The Additional Collector, after considering the objection of the
landholder and referring to details furnished by Circle Officers held that the
E landholder possessed 96.40 acres of land. He was entitled to only one unit.
Thus, he could retain only 25 acres of Category III land and the remaining
land of 71.40 acres was required to be declared surplus. An order was passed
to that effect. A direction was also given to take appropriate steps for
issuance of final statement under Section 11 of the Act.

F 3. The appellant preferred an appeal against the said order before the
Collector under Section 30 of the Act. It was, inter alia, contended that the
order dated January 7, 1976 declaring that the landholder did not possess
excess .land, had not been challenged and attained finality. The notification
and final statement which was required to be issued under Section 11 of the
G Act had not been issued by the authorities. Non-issuance of final statement
cannot adversely affect the landholder. It was also submitted that the Ceiling
case was of 1973-1974. It was over in 1976 and it cannot now be reopened.
It was also urged that Section 32B came to be inserted only in 1981, but before
that final order was passed in 1976. No fresh proceedings thus could be
initiated under the Amendment Act of 1982. It was, therefore, submitted that
H the order passed by the District Collector was liable to be set aside.
KUSHESHWAR PRASAD SINGH v. ST ATE OF BIHAR [C.K. THAKKER, J.] 99
.,, 4. The Collector, however, by an order dated June 2, 1997 dismissed the A
appeal and confirmed the order passed by the Additional Collector, Darbhanga
and observed that the landholder was in possession of excess land. The
landholder approached the Board of Revenue by filing a Revision Petition
under Section 32 of the Act which was also dismissed by the Member, Board
of Revenue, Bihar vide his order dated January 13, 1998.
B
5. The aggrieved landholder then instituted a writ petition before the
High Court of Patna. A counter affidavit was filed on behalf of the respondent-
State in which a stand was taken that Land Ceiling Case No. 65 of 1992-93
was in fact renumbered of the old case and proceedings were started afresh
in exercise of power under Section 328 of the Act and such a course was C
permissible in the light of the fact that after the order was passed on January
7, 1976, no final statement was issued under Section 11 of the Act. Initiation
of fresh proceedings was, therefore, permissible and the order passed by the
Additional Collector, Darbhanga and Collector, Darbhanga could not be said
to be unlawful.
D
6. The learned Single Judge noted that though the order was passed in
1976, no final notification under Section 11(1) of the Act was issued prior to
April 9, 1981 when the Act was amended and Sections 32A and 328 were
added. In the circumstances, observed the learned Single Judge, initiation of
fresh proceedings was permissible and the order passed in those proceedings
could not be objected. The writ petition was, therefore, dismissed. The Division E
Bench in Letters Patent Appeal confinned the order of the learned Single
Judge. The said order has been challenged in this Court.

7. On February 4, 2000, notice was issued by this Court and ad-interim
relief was granted. The matter was thereafter adjourned from time to time. On F
December 11, 2000, leave was granted. The matter has now been placed before
us for final hearing.

8. The learned counsel for the appellant contended that the proceedings
had been concluded and final order was passed under the Act as early as on
January 7, 1976 and that order had become final. Nobody had challenged it. G
Legality of that order could not be subsequently considered by initiating
fresh proceedings. It was incumbent on the authority to take consequential
action of issuance of final statement under sub-section ( l) of Section 11 of
the Act immediately after the order was passed, but it was not done. There
was thus failure to discharge statutory duty by the authorities which cannot
H
100 SUPREME COURT REPORTS (2007) 4 S.C.R.

A adversely or prejudicially affect the interest of the landholder. It was also
submitted that there was no question of application of Section 328 of the Act
which was added only in April, 198 l. Fresh proceedings initiated in 1992-93,
therefore, were without jurisdiction and all actions taken in those proceedings
are liable to be set aside. It was further submitted that it was due to mala fide
act by Hridya Narain Yadav that proceedings were started in 1992-93.
B According to the learned counsel, neither the authorities nor the High Court
considered the provisions of law·and the orders are contrary to law.

9. The learned counsel for the respondent-authorities supported the
orders and submitted that they were right in holding that since no final
C notification under Section 11 (1) was issued, the proceedings could not be ·
said to have been concluded and in view of amendment in 1981, action could
be taken under Section 328 of the Act and appellant had no right to make
grievance against it.

10. Having considered the rival submissions of the learned counsel for
D the parties, in our opinion, the appeal deserves to be partly allowed. So far
as the contention of the appellant that the proceedings had been initiated in
1973-74 and final order was passed on January 7, 1976 is not disputed and
cannot be disputed. If it is so, submission of the appellant is well founded
that final statement as required by sub-section (I) of Section 11 ought to have
been issued and effect ought to have been given to the final order. Admittedly,
E no appeal was filed. Nor the order was challenged by any party. The appellant
is right in contending that final statement ought to have been issued
immediately or in any case within 'reasonable time'. The authority cannot
neglect to do that which the law mandates and requires doing. By not issuing
consequential final statement under Section 11 ( 1) of the Act, the authority
F had failed to discharge its statutory duty. Obviously, therefore, the appellant
is justified in urging that such default in discharge of statutory duty by the
respondents under the Act cannot prejudice him. To that extent, therefore, the
grievance of the appellant is well-founded.

11. The appellant is also right in contending before this Court that the
G power under Section 32B of the Act to initiate fresh proceedings could not
have been exercised. Admittedly; Section 328 came on the statute book by
Bihar Act 55 of 1982. The case of the appellant was over much prior to the
amendment of the Act and insertion of Section 328. The appellant, therefore,
is right in contending that the authorities cannot be allowed to take undue
H advantage of its own default in failure to act in accordance with law and
KUSHESHWARPRASADSINGH v. STATEOFBIHAR [C.K. THAKKER. J.) 101

.,. initiate fresh proceedings . A
12. In this connection, our attention has been invited by the learned
counsel for the appellant to a decision of this Court in Mrutunjay Pani & Anr.
v. Narmada Bala Sasma/ & Anr., AIR (1961) SC 1353, wherein it was held by
this Court that where an obligation is cast on a party and he commits a breach
of such obligation, he cannot be permitted to take advantage of such situation. B
This is based on the Latin maxim 'Commodum ex injuria sua nemo habere
debet' (No party can take undue advantage of his own wrong).

13. In Union of India & Ors. v. Major General Madan Lal Yadav
(Retd.), [1996] 4 SCC 127, the accused-anny personnel himself was responsible
for delay as he escaped from detention. Then he raised an objection against·
c
initiation of proceedings on the ground that such proceedings ought to have
been initiated within six months under the Army Act, 1950. Referring to the
above maxim, this Court held that the accused could not take undue advantage
of his own wrong. Considering the relevant provisions of the Act, the Court
held that presence of the accused was an essential condition for the D
commencement of trial and when the accused did not make himself available,
he could ·not be allowed to raise a contention that proceedings were time-
barred. This Court referred to Broom's Legal Maxims (10th Edn.) p. 191
wherein it was stated;

" ... it is a maxim of law, recognised and established, that no man E
shall take advantage of his own wrong; and this maxim, which is
based on elementary principles, is fully recognised iri Courts of law
'nd of equity, and, indeed, admits of illustration from every branch of
legal procedure".

14. It is settled principle of law that a man cannot be permitted to take F
undue and unfair advantage of his own wrong to gain favourable interpretation
of law. It is sound principle that he who prevents a thing from being done
shall not avail himself of the non-performance he has occasioned. To put it
differently, "a wrong doer ought not to be permitted to make a profit out of
his own wrong''..
G
~
15. In view of the findings recorded by us hereinabove, we would have
allowed the appeal in its entirety and would have quashed the proceedings
...; initiated in 1992-93 by setting aside all orders passed in such proceedings.
It, however, appears that an application was made by Hridya Narain Yadav,
in which it was stated that the landholder had. not disclosed full and correct H
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102 SUPREME COURT REPORTS [2007] 4 S.C.R.

A facts in his return. Certain lands belonged to him and located in District of
Darbhanga were not shown in the earlier proceedings. In other words. the
· allegation was that the landholder had played fraud upon the authorities and
on the statute by not furnishing true and full facts as to the land possessed
by him. If it is so, irrespective of statutory provisions, an appropriate action
B can be taken. Though the question was raised before the statutory authorities
under the Act, the High Court (learned Single Judge as also the Division
Bench) had decided the case only on the basis of Section 32B of the Act
which could not have been done. In view of our findings as to non-applicability
of Section 32B to the case on hand, we consider it appropriate to remit the
matter to the Division Bench of the High Court to decide it afresh under the
C law as it stood prior to amendment by Bihar Act 55 of I 982. At the same time,
however, the High Court will consider the case as to whether all requisite facts
had been disclosed by the landholder when he filed return in 1973-74 or there
was non-disclosure of certain lands. The Division Bench of the High Court
will finally decide the matter after affording opportunity to all the parties. Let
D such a decisioJ} be taken as expeditiously as possible, preferably within six
months from the receipt of the order of this Court.

16. For the foregoing reasons, the appeal is partly allowed to the extent
indicated hereinabove. The matter is remitted to the High Court to decide it
afresh in accordance with law. In the facts and circumstances of the case,
E there shall be no order as to costs.

K.K.T. Appeal allowed.