Jharkhand High Court
Jugal Kishore Singh And Ors. vs State Of Bihar And Ors. on 4 February, 2003
Equivalent citations: [2003(1)JCR615(JHR)]
Author: Tapen Sen
Bench: Tapen Sen
JUDGMENT Tapen Sen, J.
1. Heard the parties.
2. The writ petitioners are aggrieved by the order dated 11.4.1994 passed by the S.D.O.-cum-Collector, Latehar (respondent No. 5) wherein while referring to the provisions of Section 15(1) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to wherever necessary as the said Act), he observed that 119.93 1/24 acres of land, which was found to be in excess, should be acquired and accordingly directed the records to be sent down to the office of the Deputy Commissioner, Palamau for doing needful. According to the petitioners, the entire proceedings starting from 28.4.1981 are wholly without jurisdiction and consequently they also pray that the said proceedings starting from that day and ending on 11.4.1994 (i.e. Annexure 3) be quashed.
3. The case of the parties is that Chaudhary Lakshmi Singh was recorded as a land holder in respect of land situated in village Darha Gari and Rud, P.S. Balumath, District Palamau. The said Lakshmi Singh died in the year 1934 leaving behind him his legal heirs and the petitioners claim that they are his heirs. From perusal of Annexure 1, it appears that admittedly a proceeding under the provisions of the said Act was initiated being L.C. Case No. 12/117 of 73 - 74 in which 21 acres of land were declared to be surplus. The petitioner Nos. 1 and 5 filed L.C. Appeal No. XV/166 of 1976 and the respondent No. 3 (Additional Collector) after hearing the parties remanded the matter where after upon such remand, the respondent No. 5 (Additional S.D.O. Latehar) [described in the cause title as Sub-Divisional Officer- cum-Collector under the Land Ceiling Act at Latehar] passed an order on 5.8.1977 (Annexure-1) holding that there was no surplus land and accordingly he dropped the proceedings. At paragraph 10, the petitioners have specifically stated that neither any appeal nor revision had been filed by the State against the order dated 5.8.1977 and therefore it became final. In reply to the aforesaid, all that the respondents have stated is at paragraph 20 of the Counter Affidavit and which reads as follows :--
"20. That with regard to the statements made in paragraph 10 of the writ application, I say and submit that the case was reopened under Section 45(B) of the Act by respondent No. 2 on 28.4.1981."
Thus, the factum relating to reopening of the proceeding dated 28.4.1981 is admitted in the Counter affidavit of the respondent No. 4 and the statement that the State did not file any appeal or revision has not even been replied to.
4. The grievance of the learned counsel for the petitioners therefore is that neither any appeal nor revision having been filed by the State against the order dated 5.8.1977, the same became final and all of a sudden in the year 1981, the proceedings could not have been re-opened. The learned counsel for the petitioner has relied upon Annexure 3 and submits that the order dated 28.4.1981, (i.e. the order by which the proceedings were re-opened) suffers from a complete non-application of mind.
5. Since Annexure 3 is not very legible, the learned counsel for the petitioners also therefore produced for perusal of this Court, the certified copy thereof and upon going through the same, it is apparent that the order dated 28.4.1981 read thus :--
"24.4.1981. The proceeding of the case is re-opened under Section 45(B) and transferred to the Court of Additional S.D.O. Latehar under Section 31 of the Act for disposal according to law."
6. From a bare reading of the reply made at para 20 of the Counter Affidavit, which also refers to the Order dated 28.4.1981, it is clear that the proceedings were reopened without giving reasons and without application of mind. This is clearly in violation of law.
Section 45-B reads as follows :--
"45-B. State Government to call for and examined records.--The State Government or the Collector of the district, who may be authorized in this be half may, at any time, call for and examine any record of any proceeding disposed of by a Collector under the Act and may, if it thinks fit, direct that the case be re-opened and disposed of afresh in accordance with the provisions of the Act."
(underlining by Court)
7. A bare perusal of Section 45-B above amply establishes that the Collector can direct the reopening of proceedings afresh, but such an act must be preceded by the existence of two essential prerequisites and they are (a) that the Collector MUST examine the records and (b) if he thinks fit to do so. In other words, the implied meaning assigned by the statute is that prior to taking action under Section 45-B, there must be application of mind followed by a reasoned order clearly saying why the concerned authority THOUGHT IT FIT to reopen the proceedings. No such reasons have been given in the order dated 28.4.1981 as is apparent from a plain reading thereof.
8. Consequently, it is held that order dated 28.4.1981 suffers from a complete non-application of mind in as much as once the proceedings were dropped, the same could not have been opened just like that in a routine manner. Reference in this con-text may be made to a Division Bench Judgment of the Patna High Court delivered in the case of Shiv Shankar Prasad Singh and Ors. v. State of Bihar, reported in 1982 PLJR 331. In the said case, the Division Bench held at para 5 therein that the power under Section 45-B should be sparingly exercised and only for adequate reasons and proceedings once concluded, cannot be reopened merely by verifying the correctness of the previous order. Moreover, there should be some reason to justify such an action. Similar is the view taken in yet another Judgment in the case of Narsingh Prasad Sah v. State of Bihar and Ors., reported in 1981 BBCJ 324. This Court is also satisfied that the order dated 28.4.1981 does not reflect any application of mind.
9. Finally, this Court is also of the opinion that not only did the Collector acted in a weird manner by reopening the proceedings in a routine manner but he also clearly acted wholly without jurisdiction when he transferred the same to the Court of Additional S.D.O. Latehar for disposal. It is now well settled that the Collector has no jurisdiction to direct a subordinate authority to continue with the proceeding and dispose it off. From the records of this case it appears that the case had been transferred from one authority to the other. In a Division Bench Judgment passed in the case of Kesara Devi and Anr. v. State of Bihar and Ors., reported in 1984 PLJR 209, it has inter alia been held that the District Collector has no jurisdiction to refer the matter for disposal to any subordinate authority. Similar view has been taken in yet another Division Bench Judgment delivered in the case of Kameshwar Prasad Singh v. State of Bihar and Ors., reported in 1984 PLJR (NOC) (V) 21 where also it has been held that the action of the District Collector in directing an Additional Collector to dispose off the matter is without jurisdiction.
10. For the reasons stated above this Court is therefore satisfied that the petitioner has been able to make out a case that the entire proceedings beginning from 28.4.1981 (by which they were reopened) and which finally led to the passing of the Order dated 11.4.1994, are wholly without jurisdiction. Consequently, the proceedings and the impugned orders are quashed and the writ application is allowed. There shall however be no order as to costs.