9911796707
TMI Blog2007 (11) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned single Judge of the High Court in C.W.J.C. No. 12036 of 1996 arising from a proceeding under Section 45-B of the Act. 3. The Ceiling (surplus) proceedings bearing Ceiling Case No. 149 of 1973-74 were initiated against Nand Kishore Tiwari, respondent No.8 herein and a notice to the said effect was issued to him under Section 6(1) of the Act in Form LC-1 as prescribed under Rule 5 under the said Act and respondent No.8 submitted a return under the said Act in respect of his entire land, total 19 acres 71 decimals. The aforesaid land was found to be owned and possessed by the family as defined in Section 2(ee) of the said Act i.e. land holder, respondent No.8, his wife - Sumitra Devi and their two minor children as on appointed day i.e., 9.9.1970 and ultimately the authority concerned by holding 15 acres of class I lands was permitted to be retained by respondent No.8 under Section 5(1) and the remaining 4.64 acres of land were declared as surplus. Final publication of draft statement under Section 11(1) of the said Act was accordingly made and subsequent to that a notification under Section 15(1) was also issued on 15.1.1993. Against the said notification, responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issatisfied therewith, L.P.A. was filed before the Division Bench of the High Court of Patna. The Division Bench of the High Court dismissed the same affirming the order passed the learned single Judge. Aggrieved by the said order, the appellants filed the present appeal by way of special leave petition. 5. We heard Mr. S.B. Sanyal, learned senior counsel for the appellants and Mr. P.S. Mishra, learned senior counsel for the contesting private respondent Nos. 8 and 9 and Mr. Gopal Singh, learned Counsel for the State of Bihar. 6. After taking us through the entire proceedings including the orders passed by the authorities under the Act as well as the High Court, Mr. S.B. Sanyal, learned senior counsel, for the appellants mainly submitted that inasmuch as the appellants-parcha holders who were in lawful possession of the land in question and continuing the same even today are entitled to notice and opportunity of being heard in a proceeding arising out of Section 45 of the Act. He also contended that in view of abuse of process by the contesting private respondent Nos. 8 and 9 who are none else than husband and wife, all the orders are liable to be quashed. On the other hand, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and and notification issued under Section 15(1) of the Act was to be set aside. Questioning the said proceedings, the appellants filed CWJC No. 12036 of 1996 before the High Court, Patna. Learned Single Judge, who heard the matter, dismissed the same by order dated 24.11.1997. Dissatisfied with the said order, an appeal was filed before the Division Bench in L.P.A. No. 1545 of 1997 which was also dismissed affirming the order dated 24.11.1997 passed by the learned Single Judge. 9. At this juncture, it is relevant to mention that based on the earlier proceedings holding that the 8th respondent herein was having excess land of 4.64 acres, the authority concerned, after following the procedure, and after proper verification assigned the excess lands in favour of the appellants. According to them, from that date onwards, they are in possession of the assigned lands and they are the 'parcha- holders'. 10. Since initially at the instance of 8th respondent and thereafter his wife - Sumitra Devi - 9th respondent-herein, the case was re-opened and found no excess land available, it is useful to refer the relevant provision, i.e., Section 45-B of the Act. The said provision was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. In the instant case, from the materials it is clear that the appellants as parcha holders, though the issue was re-opened they were not issued notice or given an opportunity to put-forth their case. Though the High Court has concluded that in view of the order of status quo which was passed in the presence of both parties including the present appellants, the rules of natural justice were substantially complied with in view of the power conferred on the State Government to re-open a case that too even after final notification, the person/persons who are in possession of the land in question or parcha holders are entitled opportunity of notice and they must be heard before final decision being taken. In this regard, it is useful to refer to the decision of this Court in Baban Paswan and Anr. v. Pratima Devi and Ors. . The case relates to determination of the ceiling area in respect of the family of Prabal Pratap Singh and Dinesh Prasad Singh and it was then worked out that 43.26 acres was excess land. The Respondent 1 - Pratima Devi being the sister of the aforesaid two persons raised some dispute stating that she was not heard in the matter. In the meanwhile the surplus land was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly held to be surplus area. After holding so, this Court set aside the judgment passed by the learned Single Judge and the Division Bench of the High Court and remitted to the High Court for disposal after affording opportunity to the appellants. The decision therein is directly applicable to the case on hand particularly in the light of the language used in amended Section 45-B of the Act. 12. In view of the same, we are unable to agree with the observation of the Division Bench since the appellants had the knowledge of the order of status quo passed by the District Collector on 24.08.2005, the rules of natural justice were substantially complied with. We have already held that prior to re-opening, notice to all the parties including person(s) in possession was mandatory. It is not in dispute that the case was re-opened and earlier decision was reversed holding that there was no excess land without issuing notice to the appellants. Section 45-B empowers the State Government to re-open the case which was already been disposed of by the Collector under the Act. After re-opening the case, the State Government is to dispose of the matter afresh in accordance with law. It is, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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