Shankar v. The State of Bihar

Heard Mr. Ram Suresh Roy for the petitioner, and Mrs. Kumari Amrita, learned Standing Counsel No.1 (Ceiling). This writ petition is directed against the order dated 12.9.2006 (Annexure-1), passed by the learned Collector of the district Bhagalpur, in Land Ceiling Case No. 5 of 2000-01 ( State of Bihar Vrs.Vishwanath Bhagat), whereby the application of the petitioner herein has been rejected. The petitioner is a purchaser by a registered deed of absolute sale of 25.2.1983 (Annexure-2) from Tej Narayan Prasad Bhagat, full brother of Vishwanath Bhagat. Respondent nos. 1 to 7 have placed on record their counter affidavit, and the petitioner has filed a rejoinder thereto. According to the writ petition, Loknath Prasad Bhagat had two sons, Vishwanath Bhagat and Tej Narayan Prasad Bhagat. Partition between the father and the two sons took place by a registered deed of partition bearing deed no. 5935, dated 5.9.1950, and the two brothers separated by metes and bounds and in mess. Lands ceiling proceedings under the Bihar Land Reforms (Fixation of ceiling Area and Acquisition of Surplus Land) Act 1961 (hereinafter referred to as the Act) were initiated against Vishwanath Bhagat. In the meantime, the petitioner purchased 5 Bighas of lands from Tej Narayan Prasad Bhagat by registered deed of absolute sale on 25.2.1983 (Annexure-2). It is stated in the registered sale deed that Tej Narayan Prasad Bhagat 3 has been allotted this land by the said partition deed on 5.9.1950. According to the petitioner, no proceedings were initiated under the Act with respect land of Tej Narayan Prasad Bhagat, notwithstanding which the lands so purchased by the petitioner has been shown within the ceiling area of Vishwanath Bhagat. The petitioner raised his grievance before the learned authorities under the Act which has been rejected by the impugned order. While assailing the validity of the impugned order, learned Counsel for the petitioner submits that the authorities never took into account the factum of partition by metes and bounds and in mess in between Vishwanath Bhagat and Tej Narayan Prasad Bhagat. He next submits that the petitioner is a purchaser from Tej Narayan Prasad Bhagat with respect to whose lands proceedings under the Act were never initiated. He also submits that in view of the provisions of Section 32(B) of the Act, the parties were obliged to initiate fresh proceedings even against Vishwanath Bhagat. He relies on the judgment of Full Bench of this Court in the case of Harendra Prasad Singh Versus The State of Bihar and another, 1984 P.L.J.R.908. Learned Standing counsel has supported the impugned action. Relying on the statement made in the counter affidavit, she submits that notice was given to the present petitioner. We have perused the materials on record and considered the submissions of learned counsel for the parties. The petitioner has not placed on record certified copy or photo-copy thereto of the registered deed of partition of 1950. We, however, proceed on the footing that partition by registered document did take place between 4 Vishwanath Bhagat and Tej Narayan Prasad Bhagat in 1950. On the strength of perusal of a typed copy of the registered deed of absolute sale, executed by Tej Narayan Prasad Bhagat in favour of the petitioner. We find that a clear reference is made therein of the registered deed of partition. The petitioner ought to have placed on record a photo-copy of the sale deed. However, for the purpose of disposal of the present writ petition, I proceed on the footing that there was indeed partition by metes and bounds between Vishwanath Bhagat and Tej narayan Prasad Bhagat way back in 1950, thereafter they separated in mess also. It is thus obvious that separate proceedings under the Act ought to have been initiated with respect to the lands of Vishwanath Bhagat and Tej Narayan Prasad Bhagat. The materials on record do suggest that proceedings under the Act were initiated with respect to the lands held by Vishwanath Bhagat, but there is no material on record to suggest that such a proceeding was initiated with respect to the lands held by Tej Narayan Prasad Bhagat. I am mindful of the position that the registered deed of absolute sale, executed by Tej Narayan Prasad Bhagat in favour of the petitioner is of 25.2.1983. In such a situation, it was open to the vendor or the vendee to exercise their option in terms of section 9 of the Act, which is possible only if proceedings under the Act were initiated with respect to the lands sold by Tej Narayan Prasad Bhagat as per the prescribed procedure. In such a situation, no order, or any action under the Act, with respect to the lands of Tej Narayan Prasad Bhagat including the alienation made by him after 9.9.1970 can be declared void. I, therefore, do not feel the necessity of discussing the submissions advanced by the learned 5 counsel for the petitioner with respect to applicability of the provisions of section 32(B) of the Act. This question would have arisen if proceedings under the Act were initiated with respect to the lands held by Tej Narayan Prasad Bhagat. In view of foregoing discussion, the impugned order is hereby set aside, the respondent authorities are hereby directed to exclude the lands alienated by Tej Narayan Prasad Bhagat in favour of the petitioner by registered deed of absolute sale of 25.2.1983 (Annexure-2), from the ceiling area of Vishwanath Bhagat. I am informed at the bar that Tej Narayan Prasad Bhagat is dead. It will be open to the authorities to initiate a proceeding under the Act with respect to the lands held by Tej Narayan Prasad Bhagat (deceased), or his heirs, wherein the alienation in favour of the petitioner can be considered in accordance with law and the prescribed procedure. The writ petition is accordingly allowed with the aforesaid observations. Vinay/ ( S. K. Katriar ,J. )