Patna High Court
Ram Chandra Choudhary vs State Of Bihar And Ors. on 24 July, 1992
Equivalent citations: 1992(2)BLJR1177
JUDGMENT
Binod Kumar Roy and Indu Prabha Singh, JJ.
1. The petitioner prays to quash an order dated 7-8-1991 passed by Shri Panchan Lal, the Additional Member Board of Revenue, Bihar (Respondent No. 3) in Revision Case No. 36/90 (as contained in Annexure-4) as also letter No. 258, dated 30-8-1991 of the Additional Collector, Land Ceiling, Darbhanga (Respondent No. 5) (as contained in Annexure-7). Through a supplementary petition certain further reliefs including quashing of a further order dated 1-6-1992 passed by Respondent No. 1 in same revision case, (as contained in Annexure-12) has been prayed for.
2. The relevant facts for purpose of disposal of this writ application are in a narrow compass. It appears that a proceeding under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be referred to as the Act) was initiated against the petitioner for determining his ceiling area by the Deputy Collector, Land Reforms, Sadar, Darbhanga (Respondent No. 6). A draft statement under Section 10 of the Act was also passed inviting objections thereby (sic). The petitioner filed his objection under Section 10(3) of the Act stating, inter alia, therein that on the appointed day, on the enquiry reports, he was entitled to hold Class IV lands for two units and that illegally some lands are being treated as his benami. By an order dated 15-1-1990 (as contained in Annexure-1), the proceeding was closed by the Deputy Collector Land Reforms after accepting the objections of the petitioner. The Collector, Darbhanga (Respondent No. 4) by his order dated 23-3-1990 (as contained in Annexure-2) however, did not accept the aformentioned order and directed acquisition of 97 acres of land under Section 15(1) of the Act. The petitioner moved Board of Revenue against the aforementioned order of the Collector, Darbhanga in Revision No. 36 of 1990. The revision application was admitted on 2-7-1990 observing to the effect that there are apparently some factual errors and that principles of natural justice have not been satisfied and the manner in which the learned Collector has arrived at his own conclusion raises relevant questions of law. The lower court records were called for. An order of status quo was also passed. Revision application was heard on several dates and orders were reserved on 11-12-1990. Mr. Ghosh, the then Additional Member, Board of Revenue, who had passed the aforesaid order, however, was transferred and could not pass final orders. The revision application was transferred to Respondent No. 3, who by his order dated 1-7-1991, fixed 7-8-1991 for re-hearing directing the parties to be informed accordingly. An information was sent to the learned Counsel for the petitioner by the office of the Board of Revenue, who, however, intimated that the files have been taken away by the petitioner and thus he be informed. From the records of the case produced before us it appears that a registered letter, without any acknowledgement due, bearing No. 5266 was despatched to the petitioner Ram Chandra Choudhary on 6-7-1991. The revision application was placed on 7-8-1991. On 7-8-91 the petitioner was absent. A prayer was made by the learned Counsel for the State for withdrawing the order of status quo passed on 2-7-1990. Respondent No. 3 vacated the order of status quo by order dated 7-8-1991 directing to put up the records on 8-10-1991. On 12-8-91 i.e., only about five days thereafter, the petitioner filed an application before Respondent No. 3 for recalling the order dated 7-8-1991 stating, inter alia, therein that the petitioner was not served with any notice fixing re-hearing of the case on 7-8-1991 ; that on 7-8-1991 when his learned Counsel came to appear before Respondent No. 3, he was informed by the Peshkar that the case has already been adjourned to 8-10-1991 for final hearing but when learned Counsel saw the record, after facing of the court, he was surprised to find that the order of status quo has been vacated without giving any opportunity of being heard to the petitioner ; that the status quo order was passed in consonance with the provisions of Section 15 of the Act and in the light of the admitted position of gross illegality and irregularities committed in the impugned order and to avoid the multiplication of litigation in future : that no petition for vacating the order of status quo was ever filed by the State of Bihar nor was any such petition served on his learned Counsel: that there was no laches or delay on the part of the petitioner in any way and as such he should not be allowed to have an irreparable loss and great injury for the fault which has not been committed by him and that for the ends of substantial justice, the order dated 7-8-1991 be rescinded. This petition was heard by Respondent No. 3 but instead of passing any order on the said petition, he merely directed it to be put up on the date fixed i.e., on 8-10 1991. On 8-10-1991 learned Counsel for the petitioner as well as the State of Bihar both were heard and the case was adjourned to 11-11-1991 at the request of the latter. Even on that day Respondent No. 3 did not pass any order on the prayer made by the petitioner for rescinding the order vacating the status quo. The petitioner moved this Court by filing this writ application on 26-9-1991. On 11-11-1991 this writ application was placed for admission before a Bench of this Court which passed the following orders after hearing the petitioner and the learned Government Advocate:
Let notices issue to the Respondents to show cause why this writ application be not admitted and if possible disposed of at the admission stage itself. The petitioner is directed to serve notice on the Respondents through the office of the Advocate General, Bihar within ten days, failing which the application shall stand rejected without further reference to a Bench.
Pending disposal of this writ application, no action shall be taken pursuant to the order dated 7-8-1991 (Annexure-4) and the order dated 30-8-1991 (Annexure-7).
The pendency of this application will not preclude the Member, Board of Revenue from proceeding with the hearing of the matter.
B.P. Singh R.N. Prasad.
Surprisingly on 11-11-1991, the day on which this Court passed the aforementioned order, the Sectional Officer of the Board of Revenue, who had no authority under the Act and/or the rules framed thereunder, passed an order on the records to the effect that Respondent No. 3 is otherwise busy and the case is, therefore, adjourned to 17-12-1991. We find that on 17-12-1991 yet another order was passed by the Sectional Officer stating that due to strike, this case could not be taken up today and, therefore, the case is adjourned to 3-3-1992. On 3-3-1992 Respondent No. 3 passed an order directing the case to be put upon 1-6-1992 without stating the reasons for adjournment. On 1-6-1992 the petitioner was not present ; neither any petition for time was filed. Learned Counsel for the State, however, was present and prayed that the petitioner be ordered to pay a cost of Rs. 300 to the State to which Respondent No. 3 readily acceded and directed the petitioner to pay such cost adjourning the case to 8-7-1992.
3. On 30-6-1992 the writ application was taken up again for admission. On that very day the petitioner filed an application dated 29-6-1992 making additional prayers (i) praying to quash the order dated 1-6-1992 (as contained in Annexure-12), (ii) for transferring the Revision application to the Member, Board of Revenue or any other Additional Member, Board of Revenue, then Respondent No. 3, for its disposal on merit in accordance with law within the time fixed (iii) for quashing the letter dated 9-10-1991 (ss contained in Annexure-9) by which the Sectional Officer had sent the records as per direction (presumably at the dictate of Respondent No. 3) and (iv) for initiation of proceedings of contempt against Respondent No. 3 for passing order dated 1-6-1992 in violation of the order dated 11-11-1991 passed by this Court stating, inter alia, the following facts : Respondent No. 3 had passed the order dated 1-6-1992 without jurisdiction, arbitrarily, with ulterior motive and mala fide intention ; that the lower court records have been sent back for distributing the lands in question immediately during the pendency of the case by Respondent No. 3 who directed his Peskar in open court to send them to the Collector, Darbhanga and report the same and thereafter adjourned the case to 11-11-1991 at the request of the State Counsel in reaction ; that after passing his order Respondent No. 3 ironically surcasted further in such court that "in no way, the lands in question will be stopped from its distribution either in right or wrong way and let us see till when the High Court protects the petition in which manner." : that prior to this at 11 a.m. on 11-11-1991 learned Counsel for the petitioner went to the court of Respondent No. 3 and had found that the case was adjourned to 17-12-1991 on the ground that the Presiding Officer was otherwise busy ; that pursuant to the order passed by this Court on 11-11-1991 the petitioner served notices upon Respondents 1 to 9 through the office of the Advocate General, Government of Bihar, High Court, Patna on 20-11-1991 and filed a receipt showing acknowledgment of that fact on the same day ; that the learned Counsel for the petitioner on 17-12-1991 handed over to Respondent No 3 a phototat copy of the certified copy of the said order dated 11-11-1991 in his Chambar and narrated the whole things about the case and writ application and after perusing the same, Respondent No. 3 told that since there is N. G. E's. strike in his office, the case will not be taken up and when the strike is over, the next date of the case will be communicated to all concerned parties through written notices and showed his inability to do anything till then ; that after the strike of the non-gazetted employees was called off, on 7-8-1992 the petitioner himself as well as his learned Counsel went to the office of Respondent No. 3 and thereafter on many occasion, but finally on 29-4-1992, the Peshkar gave 6-6-1992 as the date of hearing of the case to his learned Counsel, who noted it in his case diary : that accordingly on 6-6-1992 then the learned Counsel for the petitioner went to attend the case, he found that no case was fixed for hearing before Respondent No. 3 who, how ever, inspected the record and found the facts as stated above ; that the order directing the petitioner to pay Rs. 500 as cost to the State instead of transferring the case to the Member, Board of Revenue, was passed without assigning any reason and the date of hearing of the case was again adjourned to 8-7-1992 by Respondent No. 3 : that in the facts and circumstances mentioned above, it is evident that Respondent No. 3 has no regard to and faith in the court of law including this Court as well as the Constitution of India ; that Respondent No. 3 be restrained to proceed with the said revision case and Respondent No. 2, namely, the Member, Board of Revenue be directed to call for the case record from the Collector, Darbhanga and decided the revision application in accordance with law within three months from the date of passing of the order of this Court. Some other allegations were also made against Respondent No. 3 which are not necessary to be stated.
4. This petition was passed on 30-6-1992 before us since the allegation made against Respondent No. 3 was serious, taking into account the further fact that no show cause has been filed by him or any other respondents, pursuant to the direction contained in the order dated 11-11-1991 of this Court (supra). Respondent No. 3 was directed, to be present in this Court on 6-7-1992 along with his show cause, if any. This Court also directed its office to hand over a copy of the order dated 30-6-1992 to the learned Advocate General for its communication to Respondent No. 3. Till 6-7-1992, however, no show cause was filed by the Respondents including Respondent No. 3. Respondent No. 3, however, presented himself personally in Court and requested through the learned Advocate General for granting, one more indulgence. The court acceded to the request adjourning the case to 16-7-1992.
5. On 16-7-1992 Respondent No. 3 filed his show cause stating, inter alia, these facts. He has great regard and respect to the orders and directions passed by this Court ; he is a law abiding citizen and has got great faith in judiciary ; he has not (sic) or shown any disregard to any order or direction passed by this Court, he tenders unqualified apology for his act of commission and omission, if any, which were/are deliberate or intentional, the allegations made against him are totally false, the order of this Court has not been violated at any stage, the writ application has been filed to harass him on the basis of incorrect, misleading and distarted facts and as such it is fit to be dismissed at the admission stage, the petitioner has also suppressed facts and has filed wrong affidavit and hence a legal proceeding be initiated against him. The petitioner has got no cause of action to maintain the writ application inasmuch as he is not entitled to get any relief from this Court as the Revision case is still pending for final hearing and on 2-7-1990 status quo order has been passed by the then Additional Member, Board of Revenue, Patna, even after valid service no one appeared in this case for argument and after hearing the State Counsel the status quo order was vacated by him in the interest of justice, he after hearing the petitioner on 12-8-1991 directed to put up the petition on the date fixed, he never said in open court that he is vacating all the orders of ad-interim relief or stay or status quo orders passed by his predecessor in the pending case to enable the State Government to acquire and distribute all the surplus lands declared by the appellate court so that Patna High Court will not be allowed to interfere into the matter, the case was adjourned on 8-10-1991 to 11-11-91 with consent of both sides but the factum of pendency of the writ application was suppressed by the petitioner. On 8-10-1991 the Respondent No. 3 never directed Respondent No. 4 for distribution of surplus land nor has he said anything about this Court, he has not received any letter or order from the office of the Advocate General in this connection and he had no knowledge of the order dated 11-11-1991 passed by this Court till 6-7-1992, on 17-12-1991 learned Counsel for the petitioner never handed over the copy of the order dated 11-11-1991 since no court was held on 17-12-1991 due to the strike of the non-gazetted employees ; the said order was also not received by the learned Counsel for the State, and cost was awarded, as the petitioner did not appear before him.
6. In his supplementary show cause Respondent No. 3 tries to rectify the defect crept in his affidavit portion of the show cause.
7. The petitioner in his reply to the show cause of Respondent No. 3, apart from reiterating his allegations with stronger words and more brevity, denies the stand taken by Respondent No. 3 and reiterates that he is entitled to the reliefs claimed for asserting that no notice was served on him through any registered letter by the office of Respondent No. 3 and he be asked to produce strict proof of issue of any such registered notice. A request was also made to call for the entire records of the revision case for verification by this Court. The petitioner also asserts that Respondent No. 3 ironically and surcastically had spoken during argument that since the present Ceiling Act favours the landlords, cannot tolerate it and that this Court will not be allowed to interfere with the matter and to create any legal barrier in distributing the surplus lands in any way in future. The petitioner also names Sarvashri Prem Kumar Jha, Arvind Kumar Jha. Subodh Kumar Jha and Narendra Nath Ojha, the learned Advocates, who were present and had witnesesd the proceedings statings that they are ready to come forward to this Court for their deposition. It has also been stated that Shri B. P. Sinha, Special Government Pleader, who had appeared on behalf of the State of Bihar, had also witnessed the proceeding but he apprehends that he may not support the case as he defends the State's interest, though an Advocate is expected to speak truth and to deal with the matter fairly all the times. It has also been stated that generally Respondent No. 3 does not finally hear revision cases and disposed them of as a result of which all such petitioners of revision cases are corning to this Court for redressal of their grievances and that is one of the reasons why Respondent No. 2, the Member Board of Revenue, allots least number of revision to Respondent No. 3 in comparison to other Additional Members Board of Revenue.
8. A rejoinder has been filed by Respondent No. 3 to the aforementioned reply of the petitioner denying the allegations and justifying passing of his orders though stating categorically that notices sent by the office of the Board of Revenue has not been returned by the post office and thus it be presumed that notice was served on the addressee petitioner ; and that as per the practice in the Board of Revenue, orders were being recorded by the Sectional Officer but it has been decided now to discontinue it.
9. During hearing many learned Counsel made several grievances against Respondent No. 3 at the Bar in regard to his procedure of hearing of the revision cases holding his Court after 12 noon and not at 11 a.m. and vacating orders of stay in many cases etc., and they even wanted to depose against him. However, Mr. Shailendra Kumar Jha, learned Counsel appearing for the petitioner, stated that in the larger interest of the administration of justice he does not want that any further action be taken against Respondent No. 3 by this Court.
10. In C.W.J.C. No. 4878 of 1983 disposed of on 4-2-1992 passing orders by the Sectional Officer was already commented upon and needs no reiteration.
11. It would be a sad state of affairs if a subordinate Tribunal starts casting aspersions against this Institution which would only result in eroding public faith. There is no question of favouring any landlord by this Court. In fact after the abolition of the Zamindari the only landlord under the Bihar Tenancy Act is the State of Bihar or a person described under Section 48-E of the Act. The records of this Court will speak for itself that if any one viz., the State of Bihar ; the land holder ; the under-raiyat or a parcha holder has approached this Court, it/he has always been given due hearing. The apprehensions, if any, of any one are wholly misconceived.
12. We, in the peculiar facts and circumstances of the case decide not to take any further action in this regard against Respondent No. 3 taking into account his unqualified (sic) apology stated by him in his (sic) as well as before us and the fact that the petitioner in view of order dated 11-11-1991 passed by this Court should have requested Respondent No. 2 to recall the file of the revision case, except to remind of the law declared by apex Court in Brahma Prakash Sharma and Ors. v. State of Uttar Pradesh , Hiralal Dixit v. State of Uttar Pradesh AIR 1954 SC 743, Dibakar Satpathy v. Hon'ble the Chief Justice and his Companion Justices of the Orissa High Court and Anr. and Sri Baradakanta Mishra v. Shri Btymsen Dixit which any subordinate authority including Respondent No. 3 being a responsible senior officer of this State presently entrusted with discharge of quasi judicial functions under the Act is expected to know. The rule issued on 30-6-1992 is thus discharged. We clarify that our order may not be taken to be a stricture in regard to integrity of the Respondent No. 3 and/or his efficiency to hear and dispose of cases.
13. Now we come to the merits of the writ application. We find that no notice under registered cover with acknowledgment due was ever sent by the office of the Member, Board of Revenue as required under Rule 3 of the Rules which prescribes the mode of service of notices. Rule 3 not only applies to the proceedings before the original authority but equally to the proceedings before the appellate and revisional authorities under the Act. This position is not disputed by Sri Sinha, learned Counsel for Respondent No. 3, who, however, points that there is no practice of issuing notices with A/D. We accept the stand taken by the petitioner in regard to non-service of notice on him. There are plethora of decisions of this Court interpreting Sections 11(1) and 15 of the Act laying down categorically that no land of any landholder could be acquired and/or distributed during the pendency of his appeal and/or revision. The petitioner's counsel was already heard even by Respondent No. 3. It was only the learned Counsel for the State, who had requested to adjourn the case, was to be heard. By order dated 11-11-1991 this Court had already observed that the pendency of this writ application will not prevent the Member, Board of Revenue i. e. Respondent No. 2 from proceeding with the hearing of the matter. In this view of the matter, we are of the view that Respondent No. 3 was not justified in inflicting cost of Rs. 500 on the petitioner vide Annexure-12 during the pendency of this writ petition and/or vacating the order of status quo vide Annexure-4 as it was not of much consequence.
14. Respondent No. 3 expressed to us that he is no longer interested in hearing the revision application in question also. Taking into account the entire facts and circumstances, we are of the view that the impugned orders as prayed by the petitioner as contained in Annexures 4, 7 and 12 are liable to be quashed and we hereby do so.
15. We are also of the view, agreeing with the interin order dated 11-11-1991, that now the revision application of the petitioner should be heard by Respondent No. 2, the Member, Board of Revenue himself. He accordingly directs Respondent No. 2, the Member Board of Revenue, to hear the revision case of the petitioner and dispose it of latest within three months from today. We also direct the petitioner as well as the State of Bihar (Respondent No. 1) who are before us to appear before Respondent No. 2 on 11-8-1992 who shall fix a firm date of hearing of the revision application, though within two weeks from that day and to proceed to dispose of the revision application on merits on one way or the other. By interim order dated 11-11-1991 this Court had already stayed distribution of the land. We make that order absolute clarifying that till the disposal of the revision application, the lands in question shall not be distributed by the Respondents.
16. We wanted to know from the learned Advocate General as to on what date the notices were served on Respondents Nos. 1 to 9, through his office, as directed by this Court. It is stated in this regard that unfortunatelly till today, notices could not be served. This is a sad state of affairs. The office of the Advocate General is a constitutional one. It is indeed unfortunate that it has not cared to assist this Court in its administration of justice. Beyond expressing our anguish, we for the present do not want to state anything more in this regard pointing out that in future the office of the Advocate General should be careful and cautious.
17. This writ application is allowed to the extent indicated above, but in the peculiar facts and circumstances of the case, there will be no order as to cost. Let a writ of Certiorari issue accordingly.
18. Let a copy of this order be handed over to the learned Government Advocate for its communication to Respondent No. 2 and/or any other Respondents for doing the needful.