Allowed

Parshuram Tiwari and Ors. v. State of Bihar and Ors.

Patna HC7 May 2015CWJC/9085/1995

Case brief

AI extract

What is this about?

The Patna High Court quashed orders and proceedings for the distribution of land held as surplus in a ceiling operation. The court held that since a prior ceiling case recognized the family's land holding as within the permissible limit, no surplus existed, rendering further proceedings unlawful.

What did the court decide?

The impugned orders, proceedings for distribution of 5.34 1/2 acres, and the Gazette notification under Section 15A are quashed.

Parshuram Tiwari and Ors. Vs State of Bihar and Ors. — Land Acquisition | Patna HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.9085 of 1995

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Parshuram Tiwari, son of Late Raj Kumar Tiwari

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Shankar Tiwariu, son of parshuram Tiwari

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Most. Chhato Kuar, wife of Shri Shjeo Bachan Tiwari

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Suresh Tiwari, son of Sheo Bachan Tiwari

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All residents of Mangara, PS Gorari, District Rohtas …(Land holders) .... .... Petitioners

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Versus

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1. State of Bihar 2. The Additional Member, Board of Revenue, Bihar 3. Commissioner, Patna 4. The Collector of Rohtas, District Rohtas 5. The Additional Collector, Rohtas, District Rohtas 6. L.R.D.C., Rohtas, Sasaram 7. The Circle Officer, Karakat, Distrioct Rohtas

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.... .... Respondents

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=========================================================== Appearance :

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For the Petitioner/s : Mr. Shashi Shekhar Dwivedi, Sr. Advocate

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Mr. Kamla Kant Pathak Ms. Shalini

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For the Respondent/s : Mr. M. Nasrul Huda Khan Mr. Md. Irshad, AC to SC 19

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CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT

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Date: 07-05-2015

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Heard Mr. S. S. Dwivedi, learned Senior Counsel for the petitioners and the learned Counsel for the State.

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Aggrieved by the orders passed by the respondent authorities turning down the prayer of the petitioner to drop the process of distribution of their 5.34 ½ Acres of land treating the same to have been voluntarily surrendered from the surplus land, the petitioners have filed this writ application, praying for quashing of those orders including the proceeding for distribution of the aforesaid area of land for which notice was issued to the petitioners on 30.98.1990 (Annexure 4).

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The facts as unfurled from the writ application as well as the

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Patna High Court CWJC No.9085 of 1995 dt.07-05-2015

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counter affidavit shows that there was already 35.57 Acres of land possessed by the family of the petitioners. This is corroborated by the report of the Anchal Adhikari (Annexure ‘A’ to the counter affidavit) ands also the order dated 9.8.1976/25.8.1976 passed by the Deputy Collector Land Reforms (Ceiling) in Ceiling Case No. 938 of 1973-74. It would be fruitful here to take into notice this order which reads as follows:-

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“9.8.76/25.8.76- va0 v0 dkjkdkV ds lR;kiu izfrosnu dk voyksdu fd;k A Hw/kkjh ds tehu dk lR;kiu izfrosnu vapy vf/kdkjh us Bhd ls ugha fd;k gS A ekStk euhMhg dh tehu mUgksus oxZ&AA esa fdl vk/kkj ij izfrosfnr dh gS bldk C;ksjk ugh gSA Hkw?kkjh ds tehu esa flapkbZ dk Jksr D;k gS mUgksus fn[kkus dh d`ik ugha dh gS A dqy Hkwfe 35&57 ,dM+ esa 0&45 Mh0 flQZ oxZ& 4 dh g + ksxh vo”ks’k tehu oxZ&AA esa vkosxkA pwafd dkjkdkV ugj ds dek.m {ks= esa iM+rk gSA ;wuhV nks gSA ;gh ekudj izk:I izdk”ku /kkjk 10 ¼2½ ds vUrxZr djsaA ,oa ij”kwjke frokjh ,oa e0 NkBks dqavj dks ,d&,d izfr nsa vfHkys[k ,d ekg ds i”pkr miLFkkfir djsaA

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g0@& vLi’V

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It is further apparent from this order itself that the total land had been accepted by the DCLR (Ceiling) as Class II land and two units had also been allowed to the landholder. Although the order sheet of the Ceiling Case No. 938 of 1973-74 (Annexure 1) mentions the direction for publication of notification under Section 11 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as ‘the Act’), but according to the petitioners the said notification under Section 11 has never been done. From the counter affidavit also it does not transpire that a notification published under Section 11 of the Ceiling Act had been brought on record and in stead a draft statement published under Section 10(2) had been brought

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Patna High Court CWJC No.9085 of 1995 dt.07-05-2015

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on record as Annexure ‘B’ but it has been described in the counter affidavit as notification under Section 11 of the Ceiling Act. Learned Counsel for the State has not been able to explain the said contradiction.

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The petitioners were served with a notice dated 30.8.1990 (Annexure 4) by the Circle officer, whereby the notice was given to the petitioners for distribution of 5.34 ½ Acres of land describing the same to have been voluntarily surrendered by the petitioners. The petitioners filed objection and the same was dismissed and thereafter the appeal before the Collector was also dismissed. Ultimately the petitioners filed CWJC No. 7087 of 1990 which was permitted to be withdrawn by order dated 1.2.1991 with liberty to the petitioners to approach the Collector under Section 45 B of the Ceiling Act. The petitioners approached the Collector under Section 45B of the Act with the prayer to reopen the proceeding on the ground that the petitioners’ family did not possess surplus land under the Act and have not, at any point of time, voluntarily surrendered 5.34 ½ Acres of land. In substance, the contention of the petitioners before the respondent authorities was that there was no surplus land with the landholder and no such declaration has ever been done under the Ceiling Act and no notification under Section 11(1) or Gazette publication under Section 15(1) had ever taken place. The petitioners also denied to have voluntarily surrendered any part of the land and challenged the legality of the alleged publication under Section 15A of the Ceiling Act. All the respondent authorities have refused to accept the prayer of the petitioners and rejected their case.

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From the aforesaid facts, including the order as quoted

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Patna High Court CWJC No.9085 of 1995 dt.07-05-2015

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above, it is apparent that the petitioners’ family has no surplus land after allotting two units to the family. The total land being 35.57 Acres of Class II land, and there was no surplus land as one unit was entitled to have 18 Acres of land in view of Section 4 of the Act. The respondents in their counter affidavit have also accepted that the petitioners never voluntarily surrendered the disputed land measuring 5.34 ½ Acres which fact appears from the statements made in para 14 of the counter affidavit.

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In that view of the mater, when the DCLR (Ceiling) itself did not find any surplus land in the hands of landholder there was no question of proceeding further with the ceiling case the provisions of which are attracted only when the landholder has surplus land in his hands. It has not been the case on behalf of the State respondents that the aforesaid order dated 9.8.1976/25.8.1976 passed in Ceiling Case No. 938 of 1973-74 had ever been reviewed, recalled or set aside. In that view of the matter, this Court finds substance in the case of the petitioners that the declaration of 5.34 ½ Acres of land as surplus and proceeding further for distributing the same in pursuance of notice dated 30.8.1990 (Annexure 4) cannot be sustained.

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Accordingly, this writ application is allowed. The impugned orders and the proceedings for distribution of the disputed land of 5.34 ½ Acres of land and the Gazette notification under Section 15 A (Annexure 3) are quashed.

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Snkumar/U

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(V. Nath, J.)

Parshuram Tiwari and Ors. v. State of Bihar and Ors.

Case brief

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Parshuram Tiwari and Ors. v. State of Bihar and Ors.

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