Patna High Court
Kumar Vijay Vikram Sah And Anr. vs State Of Bihar And Ors. on 22 February, 1988
Equivalent citations: 1988(36)BLJR437
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. In this writ application the petitioners have questioned the order dated 6-10-1981 as contained in Annexure-1 to the writ application, whereby and whereunder the objection filed by the petitioners against the distribution of Parcha has been rejected.
2. The facts of the case lie in a very narrow compass. The petitioner No. 1 being the land-holder, a proceeding under the provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as 'the Act') was initiated against them being land Ceiling Case No. 93 of 1975-76 and final order was passed therein. That case had been re-opened by the Collector in purported exercise of his power conferred upon him under Section 45-B of the said Act. Thereafter, a notification in terms of Section 15(1) of the said Act was published. The government also approved the notification by a letter dated 21-10-1978. However, as mentioned hereinbefore, the said case was re-opened only for a limited purpose, i.e. for ascertaining as to whether the mother of the land holder (petitioner No. 2) was alive and whether the lands remained uniirigated despite abundance of canal of 'Maina Tanr Anchal'.
3. According to the learned Counsel even after an order under Section 45-B of the said Act was passed, the petitioner No. 1 had right to give option with regard to the lands which he intended to keep with himself. This right according to the petitioners has been denied to him. Before proceeding with this case any further, it should be noticed that this writ application was dismissed for default in the year 1985. The petitioner, thereafter filed a restoration application for restoring the writ application, which was registered as M. J.C. 388 of 1985. On the basis of a peon report in the aforementioned M.J.C. application, the petitioner came to learn that the respondent No. 15 died. It may be mentioned that the respondent No. 15 was one of the persons in whose favour, parchas have been distributed by the State of Bihar after acquiring the surplus land which previously belonged to the petitioner.
4. By an order dated 2-5-1986, this Court directed that the matter as to whether respondent No. 15 was a necessary party or not would be considered at a later stage. By an order dated 11-3-1987 a learned Judge of this Court held that there was no sufficient ground for setting aside the abatement. However, with regard to the contention as to whether the respondent No. 15 was necessary party or not, the same was directed to be considered when the final hearing of the restoration petition is taken up. By an order dated 28-8-1987, the said M.J.C. No. 388 of 1985 was allowed and this case was restored to its original file. However, the question as to whether the respondent No. 15 was a necessary party or not was also not decided at that stage.
5. In my opinion, a person in whose favour parcha has been distributed acquires a right to be heard in a subsequent proceeding when a notification under Section 15 (t) of the Act had already been issued and the land stands distributed. In the event of success in this writ application, the persons in whose favour parcha has been distributed might be dispossessed. It is also possible that instead of the land which has been given to him by reason of the parcha distributed by the State of Bihar, he may be allotted some other lands which may be inferior in quality to the former.
6. In this view of the matter I am of the opinion that a person in whose favour the lands have been distributed is a necessary party and in view of the fact that after the death of the respondent No. 15, his heirs were not substituted, this writ application has abated so far as the said respondent is concerned. However, the contention of the learned Counsel appears to be correct that he has an absolute right to give option under Section 9 of the said Act, and such an option in my opinion, can also be exercised even after an order is passed under Section 45-B of the Act, if thereby, there occasion material alterations in the notification under Section 15(1) of the Act. In the case of Satya Narain Agrawal and Anr. v. The State of Bihar and Ors. 1978 B.B.C.J. 391 this Court has categorically held that the land lord has a right to give option in terms of Section 9 of the said Act.
7. In the counter affidavit, the State has merely pointed out that the case was directed to be re-opened for ascertaining as to whether the mother of the land holder was alive and further as to whether the land remains really unirrigated.
8. By reason of the impugned order, passed under Section 45-B of the Act, therefore, a material alteration in the notification issued under Section 15(1) of the Act might have occured. In such an event, the petitioner would be entitled to exercise an option also in the instant case. Unfortunately the order under Section 45-B of the said Act is not on the record and as such it is not known to this Court as to whether there has been a material alteration to the notification issued under Section 15 (1) of the Act by such order under Section 45-B thereafter or not.
9. In this view of the matter it is directed that the Collector under the said Act should give an opportunity to the petitioner to give his option in terms of Section 9 of the said Act, if there has been a material alteration in the notification under Section 15 (1) of the Act, by reason of the order passed under Section 45-B of the said Act. However, it goes without saying that in view of the fact that this writ application stands abated as against respondent No. 15, the petitioner would not be entitled to give any option in relation to the lands, parcha whereof has been distributed in favour of respondent No. 15 (since deceased).
10. With the aforementioned observations and directions this writ application is disposed of. However, there will be no order as to costs.