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Judgment
Binod Kumar Roy, J.—The petitioners have come up to this Court under Articles 226 and 227 of the Constitution of India praying to quash the part of the order, dated 9-2-1982, as contained in Annexure-2 passed by the Collector, Samstipur in a case described and numbered as Suit No. L. C. 48/81-82 (Sri Bishundeo Mahto v. State) by which the petition tiled by petitioner No., 1 u/s 45-B of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, (hereafter referred to as ''thee Act'') has been rejected.
This writ application was filed on 5th March, 1982 and it was admitted on 17th March, 1982 directing maintenance of the status quo.
A petition filed by four persons praying therein to add them as petitioners on the ground that they are also co-sharers of the land in question has already been allowed by a separate order and they were directed to be made petitioner Nos. 2 to 5 to this writ application.
The petitioners claim title to and possession over 87 decimals of land in survey plot Nos. 80 and 130, appertaining to Khata No. 140, of village Khursanda Police Station Hasanpur, District Samastipur. Their case is that Khata No. 140 was recorded in the names of Soman Mahto and Kallar Mahto. Soman Mohto transferred his entire interest by a deed of gift dated 15-4-1920 to Madhu Mahto son of Tulsi Mahto and put him in possession. Kallar Mahto died leaving behind his son Bilat Mahto. Bilat Mahto also died leaving behind a daughter Dhan Sukhia Devi. Madhu Mahto had two sons Jharulla Mahto and Kari Mahto. Petitioner No. 1 is son of Kari Mahto whereas petitioners 2 to 5 are sons of Jhamlla Mahto. Dhan Sukhia Devi transferred her share to the respective mothers of the petitioners. They also pay rent to the State of Bihar. There was a fire in their house and some of their papers were also burnt. They were also granted parcha. Even though the lands belong to them, they learnt through the Anchal Office that their lands were acquired by the State of Bihar in a surplus proceeding in Land Ceiling Case No. 8/73-74 initiated under the Act as belonging to Respondent No. 4 Sheonandan Prasad Singh. A notification u/s 15(1) of the Act was also published. Having come to know, the petitioner No. 1 filed an application u/s 45-B of the Act (Annexure-l) before the Collector, Samastipur and prayed to delete the lands in question. The petitioner No. 1, to support his claim, also filed Khatiyan, deed of gift, rent receipts and some other documents. Respondent No. 2 however rejected the application vide his order (Annexure-2) on erroneous grounds namely (i) no document like Khatiyan or receipt has been produced (ii) the objector should have filed a complete objection (iii) there is no provision in the Act that the authority will give an opportunity to the objector to rectify mistakes in the petition (iv) the regional land holder Sheonandan Prasad Singh had failed to give any information u/s 7 of the Act or shown any reaction to the draft publication u/s 10 of the Act rather he filed certain objection only at the stage of preparation of the final statement u/s 11 of the Act (v) no objection was filed by the objector earlier u/s 15(3) of the Act.
Mr. Ram Kumar Jha, learned Counsel appearing on behalf of the petitioners, submits as follows:
(i) Respondent No. 2 has committed an error of record in observing that no document has been filed by the petitioner No. 1 to support his claim, whereas a number of documents filed by him were already on the record.
(ii) The other reasons given by Respondent No. 2 are also not sustainable in law.
(iii) The original authority was not correct in deciding the proceeding on Land Ceiling Case No. 8 of 1973-74 without issuing any notice to the petitioners u/s 10(3) of the Act and thus any declaration made in relation to their land as well as the notification u/s 15(1) of the Act ultra vires Section 10(3) of the Act as also Article 300-A of the Constitution of India.
(iv) In view of the recent notification withdrawing powers from the Collector u/s 45-B of the Act, the only course left open to this Court''s to quash the order and not to remit back the case to Respondent No. 2 for its fresh disposal.
Mr. Girindra Mohan Thakur, learned Counsel for Respondent No. 4 submits that even though Respondent No. 4 has not filed any counter affidavit, the fact is that he has got no concern with the lands claimed by the petitioner No. 1 and his co-sharers and he has even no concern with the result of this application.
No counter affidavit has been filed on behalf of Respondents 1 to 3. No one appeared on their behalf when the case was heard in part yesterday. Today also no one appears. Obviously I am handicapped by the non-filing of any counter affidavit or non-production of the records the cases in question. Be that as it may, since this application has remained pending for about 8 years, it will not be proper to adjourn it for the purpose of production of record. The Respondent Nos. 1 to 3 must bear for their own non-action in the matter.
The fact asserted to by the petitioner No. 1 that he had filed the Khatiyan, the deed of gift and receipts to prove his title and possession has not been rebutted. Thus I have no option but to infer that those documents were on the record. In this view of the matter, Respondent No. 2 has committed an apparent error in thinking that no document has been filed by the petitioner No. 1 before him.
From a perusal of Anncxure-2 it also appears that Respondent No. 2 has attached importance to a report from the Anchal Adhikari alleging that he had found only 40 acres of land as not having belonged to the original landholder (Respondent No. 4), which does not include the land of the objector. In view of he documents filed by petitioner No. 1 and he not having been given any opportunity to have his say in the matter at the verification the report was not of much consequence.
Section 10 of the Act read with the rules makes it clear that the ceiling authorities have to prepare the draft statement strictly in accordance with the up-to-date record of right as also counterfoil of rent receipts. That also appears to be lacking in this case.
For the non-action of the Respondent No. 4, the petitioner No. 1 could not have been blamed.
Non-filing of claim u/s 15(3) also could not have stood as a bar to the application (Annexure-1) before Respondent lar form has been prescribed for filing an application u/s 45-B of theNo. 2.
No particu Act. Thus the observations accordingly in regard to the application of the petitioner No. 1 by the Collector were wholly irrelevant.
The order impugned is thus not sustainable in law for the reasons mentioned by me.
My predicament is that instructions made by the State Government authorising the Collector of a District to hear application u/s 45-8 of the Act have already been withdrawn during the pendency of this writ application. However Section 37 of the Act and Rule 51 of the Bihar Land Ceiling Rules, 1963 framed under the Act run as follows:
Section 37. Collector to decide dispute for which no specific provision is made. -If any dispute arises under this Act or the rules made thereunder for which no specific provision has been made in this Act, the dispute shall be decided by the Collector in the prescribed manner and the appropriate provisions of the Act, so far as may be shall apply thereto:
Provided that no such decision shall be made without giving the parties a reasonable opportunity of being heard and adducing evidence.
** ** ** Rule 5,1. Decision of a dispute for which no specific provision in the Act has been made [Section 57].-(1) If any dispute arises under the Act or the rules made there under for which no specific provision has been made in the Act, the dispute shall be decided by the Collector in the following manner:
(i) He shall serve a notice on the party or parties concerned calling upon them to appear before him either by themselves or through an agent duly authorised by them in this behalf in this Court at a time and on a date specified in the notice and to file a written statement, if any, on the point of points arising in the matter relating to the dispute and after giving them a reasonable opportunity of being heard, and adducing evidence, if any, shall decide the dispute, by an order in writing, together with his reason thereof.
(ii) If the party or parties fail to appear either by themselves or through their duly authorised agents on the date specified in the notice, or on extended dated he may proceed to decide the dispute expert.
(2) The Collector may require the parties concerned or their agent to produce such documents or to furnish by affidavit or otherwise, such information relating to the subject-matter in dispute and either himself hold or get through any officer subordinate to him such enquiry held as he may consider necessary.
(3) If the Collector finds that he has no jurisdiction under the Act, to decide the dispute he shall for reasons to be recorded in writing refer the parties concerned to the proper Court, who may have jurisdiction to decide the dispute.
Language of Section 37 aforesaid is very wide. It is also residuary in nature. It can be pressed into service by any one including the State to resolve any dispute for which there is no provision. Admittedly no notice was given to the petitioners of the draft statement. Naturally notice of the final statement prepared u/s 11(1) of the Act was also not given to them. The question of giving any notice of the notification u/s 15(1) of the Act also never arose. The effect of the notification u/s 15(1) of the Act was that the title of the petitioners in the land in question stood extinguished as the land in question vested in the State of Bihar free of all encumbrances as it is apparent from the language of Section 15(1) of the Act. Thus, the net result is that the petitioners have been deprived of their lands without giving them any opportunity to have their say in the matter. In view of the withdrawal of the instructions by the State Government I am of the view that Section 37 of the Act can still be invoked by the petitioners.
17 Thus I quash the impugned order as contained in Annexure-2 and direct the Collector, Samastipur (Respondent No. 2) to decide the dispute raised. by the petitioner No. 1 u/s 37 of the Act in absence of any specific provision under the Act. Respondent No. 2 is directed to dispose of the application filed by the petitioner No. 1 (Annexure 1 to this application), after adding petitioners 2 to 5 as such, u/s 37 of the Act after giving a reasonable opportunity of being heard to them, the State of Bihar as also to Respondent No. 4 to appear before Respondent No. 2 on or before 15th June, 1990. Respondent No. 2 is further directed to maintain status qua till the disposal of the application (Annexure-1) as already directed by this Court on 17-3-1982 If it is found that Respondent No. 4 has nothing to do with the land in question and that it belongs to the petitioners, in that event the Collector (Respondent'' No. 2) or any other authority to whom the case is transferred shall delete the lands of the petitioners from the final statement and the State shall also delete the land from the notification u/s 15(1) of the Act.
In the result this application is allowed with the directions as above. No costs as no one has appeared on behalf of the State.
Let a writ of certiorari issue accordingly.