Patna High Court
Prakash Kumar Jha And Ors. vs State Of Bihar And Ors. on 9 March, 1995
Equivalent citations: 1995(1)BLJR645
JUDGMENT N. Pandey, J.
1. This writ application has been filed for quashing the entire proceeding of celling case No. 24 of 1979-80/ Tr. No. 86 of 1984-85 as also die order dated 26.4.1991, whereby, the Deputy Collector, Land Reforms, sent the matter for final publication in the official gazette of the District for acquisition of 126, 73 Acres of land as surplus.
2. For proper adjudication of the questions, involved in the present writ application, it would be appropriate to have a brief survey of certain facts. It appears in the years 1979 a land ceiling case was registered as L.C. Case No. 24 of 1979-80 against the petitioner on receipt of an information, submitted by the Anchal Adhikari, Katihar, the petitioner land holder submitted his return and approached for dropping the proceeding on the ground that he had no excess or surplus land for acquisition.
3. The additional collector (ceiling) published a draft statement under Section 10(2) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter %o be referred as the 'Ceiling Act'), granting two units to the petitioners..
4. The land holder being aggrieved by the draft statement, filed objection under Section 10(3) of the Ceiling Act, claiming four units on the ground that his sons, namely, Prakash Kumar Jha and Prabhat Kumar Jha, were majors on 9.9.1970, Besides the aforesaid, it was also claimed that major portion of the lands were within the jurisdiction of Katihar Municipality, therefore the provisions of Ceiling Act would not be applicable with respect to such lands.
5. The Anchal Adhikari then submitted his verification report, accepting the case of the petitioner that except the land of two villages, namely, Para and Kehuniya, other lands are lying within the jurisdiction of Katihar Municipality.
6. The Additional Collector, Katihar, by his order dated 15.7.1982 dropped the proceeding and finally determined that out of total 120.30 Acres of land, the Circle Officer has reported that 94.90 Acres of land fell within the Municipal Area and remaining 35.40 Acres of land will come under the Ceiling Act. It was further held that the petitioner and his mother were entitled for two units of Class IV land and, therefore, there was no excess or surplus land for acquisition. Having so held, the Additional Collector finally dropped the proceeding by his order dated 15.7.1982.
7. Near about four years later, the succeeding Additional Collector reopened the proceeding while exercising his power under Section 45-B of the Ceiling Act. According to him, the finding of the then Additional Collector that major portion of the land is within the municipal area, was wrong.
8. The petitioner questioned the validity and jurisdiction of the Additional Collector for reopening the proceeding before this Court in CWJC No. 3507 of 1987. The writ application was finally heard and by judgment dated 11th July, 1990, the order of the Additional Collector was quashed on the ground that the then Additional Collector had arrived at a definite conclusive finding that out of the total land, held by the petitioner, 84.90 Acres of land fell within the Municipal Area. It was further held that the Additional Collector had no jurisdiction to reopen the proceeding under Section 45-B of the Celling Act for reconsideration of the same materials, which had earlier been considered by his predecessor. There was neither any material, which was omitted from consideration, nor there was any fresh material, relevant on the question, which it considered, could lead to a different conclusion.
9. But after sometime under the orders of the Collector of the District as per the provisions of Section 32-B of the Act, the petitioners were directed to file objection, if any, with respect to the draft statement, published under Section 10(2) of the Act. Ultimately, on 23.1.1991 the Additional Collector directed that 27.50 Acres of Class-III land be allotted in favour of the petitioner and rest 126.73 Acres be declared surplus and a draft statement be accordingly, published.
10. Mr. Kamal Nayan Choubey. learned Sr. Counsel, appearing on behalf of the petitioners has questioned the validity of the order of the Additional Collector, whereby, the proceeding has been reopened and different orders, passed therein, on various grounds. He submitted that once the matter was finally decided and dropped by the Additional Collector vide his order dated 15.7.1982, the succeeding Additional Collector or any other authority had no jurisdiction to reopen the proceeding in order to give a reconsideration or rethought of the matter. He contended that this Court also while disposing of the earlier writ application, held that once the matter was dropped by the Additional Collector, it could not have been reopened by the succeeding Additional Collector.
11. It was further contended that the findings recorded by this Court in earlier writ petition with respect to the same facts would operate as res-judicate, at subsequent stage of the same proceeding. He stated that in any view of the matter, from several authentic documents and reports of the authorities, available on the record, it has already been established that 84.90 Acres of the land are within the jurisdiction of Katihar Municipality, therefore, no purpose would serve even the matter is re-examined from the stage of Section 10(2) of the; Ceiling Act.
12. Two different counter-affidavits have been filed on behalf of the State. Mr. B.P Verma, learned Counsel appearing on behalf of the State, contended that the petitioner had unnecessarily interpreted the impugned orders as under Section 45-B of the Act. In fact, the order of the Additional Collector dated 15.7.1982, dropping the proceeding, was not approved by the Collector or the State Government. Therefore, this Court was wrongly informed on the earlier occasion that the order of the Additional Collector, dropping the proceeding, was final.
13. He contended that admittedly, in view of the Amendment of the Act Act 55 of 1982, certain new provisions including Section "32-A and 32-B" were introduced, making a provision for abatement of appeal, revision, review or reference. In other words, by insertion of these provisions, all those proceedings either appeal, revision, review or reference, pending on the date of commencement of the Act, 1982, and in which final publication under Sub-section (1) of Section 11 of the Act, as it stood before the amendment of the Act, had not been made, were required to be disposed of afresh from the stage of Section 10 of the Act. The aforesaid provision was introduced with effect from 9.4.1981. Therefore, the Additional Collector had no jurisdiction to drop the proceeding on 15.7.1982, because by virtue of insertion of Section 32-B of the Act, entire proceeding was to be disposed of afresh in accordance with the provisions of Section 10.
14. In view of the facts, stated above, and apart from the material amendment in the other revisions, Section 32-A and 32-B, which pointedly called construction here, are being noticed in extenso:
32-A. Abatement of appeal, revision, review or reference--An appeal, revision, review or reference other than those arising out of orders passed under Section 8 or Sub-section (3) of Section 16 pending before any authority on the date of commencement of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1982, shall abate :
Provided that on such abatement, the Collector shall proceed with the case afresh in accordance with the provisions of Section 10:
Provided further that such appeal, revision, review or reference arising out of orders passed under Section 8 or Sub-section (3) of Section 16 as has abated under Section 13 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) [Ordinance, 1981 (Bihar Ordinance No. 66 of 1981], shall stand automatically restored before the proper authority on the commencement of this Act.
32-B. Initiation of fresh proceeding--All those proceedings, other than appeal, revision, review or reference referred to in Section 32-A pending on the date of commencement of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1982, and in which final publication under Sub-section (1) of Section 11 of the Act as it stood before the amendment by aforesaid Act, had not been made, shall be disposed of afresh in accordance with the provisions of Section 10 of the Act.
15. In the light of the aforesaid legislative changes, it is manifestly clear that by virtue of Sections 32-A and 32-B, the surplus area of the land in a ceiling proceeding has to be determined in accordance therewith from the date of enforcement of the Amending Act.
16. It provides that all appeals, revisions, reviews or reference, pending before any authority on 9th of April, 1981, would abate and the Collector shall proceed with the case afresh in accordance with the amended provisions from the stage of Section 10 of foe Act. Similarly, with regard to all proceedings, pending on 9th April, 1981, barring those, which had achieved finally by publication under unamended Sub-section (1) of Section 11, are to be disposed of afresh in accordance with the amended law.
17. These questions were called for consideration before this Court on several occasions in different cases. Say for example 1984 BBCJ 879 (Harendra Prasad Singh v. The State of Bihar and Anr.). 1984 PLJR 90 (Chandrajot Kuer v. State of Bihar) , Harendra Prasad Singh v. State of Bihar and Anr.) 1992(2) PLJR 702 (Smt, Jyotsna Devi andAnr. v. State of Bihar and Ors. ).
18. From a bare reference to the aforesaid judgments, it would appear that by insertion of Section 32-B, a categoric mandate was issued by the Legislature to decide the proceedings, afresh in which express publication under Sub-section (1) of Section 11 of the unamended Act was not made.
19. The word "abatement" under these provisions, as interpreted by this Court, connotes a ceasing or putting an end of the proceeding. The mandate to decide the proceedings afresh not only wipes away earlier decisions or findings, but commands a fresh application of mind and decision thereof.
20. Admittedly in the instant case, no final publication under Sub-section (1) of Section 11 of the Act, as it stood before the amendment, was made. The order of the Additional Collector to drop the proceeding was passed on 15.7.1982. The amended Act was introduced, retrospectively with effect from 9th April, 1981. Therefore, apparently, the order of the Additional Collector, dropping the proceeding on 15.7.1982 was illegal and without jurisdiction, because by virtue of the amended provisions, the proceeding had abated automatically and it was to be disposed of afresh in accordance with the provisions of Section 10 of the Amended Act.
21. Much emphasis has been given to the judgment of this Court in earlier writ application bearing CWJC No 3507 of 1987. It has been urged since by the said judgment the order, reopening the proceeding, has been quashed, any subsequent order by the authorities or this Court would be without jurisdiction as the findings recorded in the earlier judgment shall operate as res judicata. In support of such connection reliance has been made to the following decisions; namely, 1958 SC 232 (P.B. Lokotaiah etc. v. Union of India and Ors. ) (Jaisri Sahu v. R. Jdewan Dubey and Ors. ) as also (Choudhary Sahu v. State of Bihar and Ors. ). On the basis of die aforesaid decisions, it has been urged that it was not open to the State to reopen the proceeding or initiate afresh, unless the aforesaid judgment of this Court was set aside.
22. It was further urged that even assuming while delivering the judgment the Court failed to notice the legal position, the effect of the judgment has to be honoured at the subsequent stage of the said proceeding. It may pericardium or sub-silentio for other cases but effect of such judgment is binding at the subsequent stage of the said proceeding. Therefore, this Court is bound by the findings recorded by the earlier Court.
23. In my view, by the earlier judgment this Court had only examined the scope of reopening of a proceeding under Section 45-B of the Act. The order of the Additional Collector was set aside on the ground that no fresh material was noticed for reopening of the proceeding. It was held that to give reconsideration of the same facts, reopening a proceeding under Section 45-B of the Act was not permissible.
24. The question of abatement and the jurisdiction of the Court to proceed further in terms of the amended provisions of Section 32-A and 32-B were not taken into consideration.
25. It is well known that a decision is an authority for the proposition what it decides. A decision, which has been passed in ignorance of the statute of any earlier decision, does not create any binding precedent, having been rendered per incuriam or sub' silentio. In support of the aforesaid finding reference can be made to the case of 1988 SC 1531 (A.R. Antulay v. R.S. Nayak and Anr.) and (Shankar Prasad Sahi v. Stage of Bihar and Ors.)..
26. In the back ground of the facts, stated above, in my view, the earlier decision of this Court, referred to above, will not operate as res-judicata, since the points, as well as the provisions of law, involved herein, were not taken into consideration at that state.
27. But before parting with this judgment, it would be relevant to notice the submission of the learned Counsel that from various materials, available on the record, it is established that 84.90 acres of land are within the jurisdiction of Municipal area of Katihar Municipality. Therefore, even a redetermination of the ceiling area is taken up from the stage of Section 10, no useful purpose would be served and it will unnecessarily cause harassment to the parties.
28. It is well settled that the land, as it would appear from Section 4 of the Act does not include homestead land of landholder or a land lying within the jurisdiction of Municipal Corporation or Municipality. Therefore, obviously such land cannot be considered for determination of ceiling area. But in view of amended provision, such determination has to be made from the stage of Section 10 of the Act. The moment, it is held that by virtue of insertion of new provision, the proceeding stands abated with effect from 1.4.1981 it would not be proper for this Court to determine the ceiling area after excluding the land, lying within the jurisdiction of Municipal area, Such decision can only be taken by the Collector under the Act while recording fresh order in accordance with law. The reports of the authorities and materials, available on record, would naturally establish these facts, if such lands are within the jurisdiction of the Municipal area.
29. In the result, subject to observations, made above, the writ application is dismissed. But in the circumstances of the case, there shall be no order as to costs.