Patna High Court
Yamuna Rai And Ors. vs State Of Bihar And Ors. on 13 January, 1984
Equivalent citations: 1984(32)BLJR553, AIR 1984 PATNA 195, 1984 BBCJ 487, (1984) BLJ 269, (1984) PAT LJR 480
JUDGMENT B.P. Jha, J.
1. In an application under Articles 226 and 227 of the Constitution, these petitioners pray for quashing an order dated 3rd August, 1982, contained in An-nexure-1, and the other subsequent orders.
2. In the present case, the Additional Collector granted four units to the landholders. These petitioners were in possession of 119.81 acres of Class IV lands. It is relevant to quote the genealogy given at page 7 of the writ petition which is as follows :
Chandraman Rai | _____________________|______________________ | | Lal Babu Rai (Deceased) Yamuna Rai-Petitioner No. 1 | | = Raj Kali Kuer-Petitioner No. 3 = Surajyoti Devi | | _____________|__________ | | | | Satyadeo Pd. Jaganath Pd. | Petitioner No. 4 Petitioner No. 5 | | | | = Phul Kumari Devi = Taranath Devi | | | | _______|_______________ | | | | | | | Bina Rameshwar Rajeshwar | | Kumari Prasad Prasad | | | | ______________|_________________ | | | | | Bimla Kumari Bijoy Kumar Sanjoy Kumari | | _____________________|______________ | | Inderjit Rai-Petitioner No. 2 Mithliesh Kumar | = Ram Pati | Binod Prasad The Additional Collector has accepted this genealogy. He granted four units-- one each to (I) Yamuna Rai, (2) Raj Kali Kuer, (3) Satyadeo Prasad, and (4) Jaganath Prasad. The matter was reported to the State Government, and the State Government directed to reopen the case. The order for reopening the case is mentioned in Annexure-A to the counter-affidavit.
3. It is mentioned in Annexure-A that under Section 6 of the Hindu Succession Act, after the death of Lal Babu Rai in the year 1978, Jamuna Rai will be deemed to be separate. In the opinion of the State Government, Yamuna Rai is entitled to one unit. It is for this reason that the State Government directed the authority concerned to reopen the case 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').
4. Before ordering to reopen the case, the State Government did not issue notice to the petitioners. It has been consistently held by this Court that before reopening a case, either the State Government or the District Collector must issue notice to the party concerned which has not been done in the present case, and, therefore, the order contained in Annexure-A attached to the counter-affidavit is not in accordance with law.
5. In the present case, I want to lay down the guidelines for reopening a case under Section 45-B of the Act. The Bombay High Court in the case of Commr. of income-tax, Bombay City H v. H. Holck Larsen, (1972) 85 ITR 467 : (1973 Tax LR 48), while interpreting Section 34 (1) (b) of the Indian Income-tax Act, 1922 (hereinafter referred to as 'the Income-tax Act'), has held that reopening should not be done by the Income-tax Officer in respect of the existing materials in order to take a different view of the same facts. In other words, if a Revenue Authority has decided certain matters on certain facts, then on the same facts and the existing materials, the Revenue Authority has no authority to reopen the case under Section 45-B of the Act. The Revenue Authority can reopen a case under Section 45-B of the Act provided there exists any new material or new information on the record which did not exist earlier while passing the order. In other words, while reopening the case, he cannot revise an order and take a different view of the matter on the already existing materials. The District Collector can reopen the case only on the basis of fresh materials, or, if a new law or new decision or new provision of law has come into force and otherwise not. Suppose a decision on a certain point given by the Collector has been set aside and a fresh principle of law has been laid down by the High Court, then in that case the District Collector can reopen the matter under Section 45-B of the Act. If a law existed at the time of passing the order, then the mere fact that the District Collector did not apply his mind to the law which existed at that time would not allow the District Collector or the State Government to reopen the matter.
6. If a fact existed or the law existed at the time of passing order, then simply because the Collector did not apply his mind would not be a case for reopening a case under Section 45-B of the Act. It has been held by the Supreme Court in Income-tax-cum-Wealth-tax Officer, Hyderabad v. Nawab Mir Barkat Ali Khan Bahadur, (1974) 97 ITR 239 : (AIR 1975 SC 703), that having a second thought on the same materials is not permissible for the initiation of proceedings under Section 147 of the Income-tax Act.
7. To summarise the point raised in this case is as follows :
A case can be reopened On new materials of fact or law which has been laid down by the High Court or superior Courts or there is any change in legislation. The State Government or the District Collector cannot reopen a case for taking a different view or for changing opinion or for revising opinion on the existing materials on the record. A proceeding under Section 45-B of the Act should not be initiated for giving a second thought to the existing materials. Therefore, in order to reopen the case, the State Government or the District Collector must be in possession of new materials which were not available at the time of giving judgment. This material may be on the basis of the information received by the State Government or the District Collector or from the record as well. Suppose some information may be available to the Anchal Adhikari or the Collector, to which the Collector did not apply his mind while passing the order, that information to which mind was not applied by the earlier authority can be a source of information or material for reopening a case. Suppose in a case where there are three sons and a father and four units have been given to the three sons and their father. It was held that all the sons were major on 9th Sept., 1970. If an information comes to the Collector that one son was not major on 9th Sept., 1970, the State Government or the District Collector cannot reopen the matter because on the earlier occasion the Collector had applied his mind on the point of minority or majority of the son and that fact cannot be reopened subsequently for taking a different view of the same matter. The District Collector can reopen a case where the lands of another person have been included in the lands of the land-holder. Suppose A is the petitioner and in the notification under Section 15 (1) of the Act the lands of B have also been tagged with the land of 'A', 'B' can apply for quashing a notification under Section 15 (1) of the Act or for reopening a case under Section 45-B of the Act. The Collector had no information as to the fact that B's lands have also been included in the land of the petitioner, then in such a circumstance, the case can be reopened.
8. In the present case, the State Government has directed to reopen the case on the basis of Section 6 of the Hindu Succession Act. That Act existed when the Additional Collector passed the order on 31st May, 1982. Therefore, there is no question of mistake of fact or law only because the State Government is of opinion that the Additional Collector while passing tfhe order did not apply his mind so far as Section 6 of the Hindu Succession Act is concerned. According to the materials, the Additional Collector was of opinion that the whole family was joint and he has given one unit to each of the four members. On the same facts again, the State Government wants to revise his opinion and that is not permissible under Section 45-B of the Act in view of the decisions mentioned above. Annexure-A attached to the counter-affidavit is the order passed by the State Government for reopening the case. According to Annexure-A, it is clear that since Lal Babu died in 1978, as such there will be deemed to be a notional partition between Lal Babu Rai and Yamuna Rai and both the brothers will get half of 119.81 acres of Class IV lands. Explanation I of Section 6 of the Hindu Succession Act deals with notional partition for the purpose of succession under Section 6 of the Hindu Succession Act. The Additional Collector granted four units to various members on the ground that there is a joint family consisting of the heirs of Lal Babu Rai and Yamuna Rai. Section 6 deals with notional partition for the purpose of inheritance under Section 6 of the Hindu Succession Act and not for any other purpose. By virtue of the order contained in Annexure-A, the State of Bihar directed the Additional Collector to reopen the matter on the ground of notional partition as envisaged under Section 6 of the Hindu Succession Act. There is difference between notional partition and actual partition. The case of the petitioners was that the heirs of Lal Babu Rai and Yamuna Rai are members of the Hindu joint family and on that basis the Additional Collector granted four units to the various members of the joint family. The principle of notional partition cannot be applied for treating the joint family as a separate family by the State of Bihar. Therefore, the State of Bihar erred in allowing the principle of notional partition in place of actual partition. The Additional Collector was right in treating the whole family as joint family notwithstanding the fact that Lal Babu Rai died in the year 1978 when the Hindu Succession Act had come into force. Therefore, the State of Bihar committed an error of law in directing the Additional Collector to reopen the case on the ground of notional partition as envisaged under Section 6 of the Hindu Succession Act.
9. In the result, the petition is allowed, the orders dated 3rd August, 1982 as contained in Annexure-1 and Annexure-A attached to counter-affidavit for reopening the case are hereby quashed and the subsequent orders passed in pursuance thereof are also quashed. The parties will bear their own costs.
Chaudhary Sia Saran Sinha, J.
10. Land Ceiling Case No. 19 of 1982-83 was started against Chandraman Rai. This Chandraman Rai had two sons, namely, Lal Babu Rai and Yamuna Rai (petitioner No. 1). Lal Babu Rai died leaving behind Raj Kali Devi (petitioner No. 3), his widow, and two major sons, namely, Satya Deo Prasad (petitioner No. 4) and Jagannath Prasad (petitioner No. 5). According to the case of the petitioner one Indrajit Rai (petitioner No. 2) was a major son of Jagannath Rai and all the petitioners constituted a Hindu joint family under the Mitakshara Law on the relevant date. The petitioner's case, in this respect, is not specifically controverted in the counter-affidavit filed on behalf of the respondents. There was a verification report in Land Ceiling Case No. 19 of 1982-83. The land-holder, Chandraman Rai, was allowed three units of 25 acres of land and 42.63 acres of land was declared to be surplus.
11. A draft statement under Section 10 (2) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as 'the Act') was published accordingly. Chandraman Rai, being dead, the petitioners filed objection petitions stating, inter alia, that the petitioners' family was entitled to five units, one unit for each of the petitioners, and, thus, there would be no surplus land, Annexure-2 to the application is that objection petition. This objection was considered by the Additional Collector in his order dated the 31st May, 1982 (vide Annexure-1), and Raj Kali Devi, Satyadeo Prasad, Jagannath Prasad and Yamuna Rai were each held entitled to hold one unit. The total area of the binds held by the family being only 119.34 acres, it was held that there was no surplus land held by the family. The Additional Collector did not, however, consider whether petitioner Indrajit Rai was entitled to a separate unit. This is one chapter of the case.
12. The case was thereafter transferred to another Additional Collector, Motihari, the circumstances whereof are not known to us. The Deputy Secretary to the State Government, in the Revenue Department, wrote a letter dated the 22nd June, 1982 (Annexure-A to the counter-affidavit) pointing out, inter alia, that 19.67 acres of land may be declared as surplus, and the District Collector, East Champaran, was requested to proceed accordingly. This led to the passing of the order dated the 3rd August, 1982 by the Additional Collector and the subsequent orders, as contained in Annex.-1 to the application, which are sought to be quashed. The lands of the joint family consisting of 119.81 acres were divided into two parts. While the family of one of the branches of Chandraman Rai, represented by petitioners Satyadeo Prasad, Jagannath Prasad and Raj Kali Devi was not found to hold any excess land, the other brandh represented by Yamuna Rai, was held entitled to one unit without any consideration whether petitioner Indrajit Rai was entitled to another unit and 29.19 1/2 acres of land was declared to be surplus and further action 'was taken accordingly leading to the notification under Section 15 (1) of the Act It is not in dispute that the order dated 3rd August, 1982 which modified the order dated the 31st May, 1982 was passed without any notice to any of the petitioners behind their back. This is another chapter of the case.
13. While the clear-cut case of the petitioners is that the order dated the 3rd Aug., 1982 amounts to reopening the case disposed of by order, dated the 31st May, 1982 without any notice to the petitioners behind their back, the case, as made out in the counter-affidavit on behalf of the respondents is not quite consistent. The stand taken in para No, 11 of the counter-affidavit is that the order dated the 31st May, 1982 is not a case of reopening under Section 45-B of the Act, but is an order passed by the State Government in exercise of the powers conferred under Section 45-A of the Act. The assertions in paras 13 and 14 of the counter-affidavit, on the other; hand, are that the order dated the 3rd August, 1982 is an order passed by the State Government in exercise of the powers conferred by Section 45-B of the Act and the further assertion in para No. 15 of the counter-affidavit is that no notice is required before reopening a case.
14. Section 45-A of the Act states that the State Government may, from time to time, give to the Collector of the district such general or special directions as the State Government may think fit to carry into effect the provisions of the Act. Annexure-A to the counter-affidavit, no doubt, contains some directions by the State Government to the Collector of the district solely relating to the case of the petitioners, but it nowhere says that the State Government themselves reopened the case. Rather, the State Government requested the Collector of the district to take action in the case according to the directions given therein and it was the Additional Collector of the district who, in [his order dated the 3rd August, 1982, virtually reopened the case. The reopening as envisaged under, Section 45-B of the Act can be made only by the State Government or the Collector of the district authorised in this behalf. Obviously, the Additional Collector has no jurisdiction to reopen the case. This apart, in the case of Nawal Kishore Singh v. State of Bihar, 1981 BBCJ (HC) 62 : (AIR 1980 Pat 286), a Division Bench of thin Court has held that reopening of a case, disposed of under the Act, by the Collector without notice to the parties is illegal. Under Section 45-B of the Act, the State Government or the Collector of the district can reopen a case in appropriate circumstances. But before the case is reopened, a, notice to the parties concerned is essential. No notice having been issued to the petitioners before passing the order dated the 3rd August, 1982, the reopening of the case by the State Government or the Collector of the district cannot but be deemed to be illegal and liable to be quashed. If this be the fate of the order dated the 3rd Aug., 1982, the other orders, as contained in Annexure-1 to the application, consequent to the order dated the 3rd "Aug., 1982 must also fall to the ground and would be liable to be quashed. As the impugned order dated the 3rd August, 1982 and the other subsequent orders, as contained in Annexure-1 to the application, are held liable to be quashed on the ground mentioned above. I do not consider it necessary to decide in this case the various circumstances on which reopening should be ordered.
15. With the above observations, I agree to the order proposed by my learned brother.