The State Of Bihar And Ors vs Shrikrishna Bihari Mishra And Ors
2023 Latest Caselaw 5279 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                         Letters Patent Appeal No.314 of 2017
                                          In
                    Civil Writ Jurisdiction Case No.10853 of 2002
      ======================================================

1. The State Of Bihar

2. The Collector, West Champaran, Bettiah.

3. The Deputy Collector, Land Reforms, Narkatiaganj, District West Champaran.

4. The Circle Officer, Lauria, District West Champaran.

... ... Respondents-Appellant/s Versus

1. Shrikrishna Bihari Mishra, son of Late Hari Shankar Mishra, resident of Village Matiaria Tola Birti, P.S. Lauria, District West Champaran.

Petitioner-Respondent 1st Set.

2. Bachia Devi wife of Anawat Ram

3. Kalbal Ram son of Ganesh Ram

4. Atwari Devi wife of Jagu Ram

5. Rabri Devi wife of Janak Ram

6. Sanjharo Devi wife of Bindeshwar Ram

7. Umrawati Devi wife of Shivbaran Ram

8. Rampati Devi wife of Saryug Ram

9. Buna Devi wife of Bhabhu Ram

10. Rambha Devi wife of Raman Paswan

11. Shiv Lal Paswan son of Badu Paswan

12. Shiv Nath Paswan son of Badu Paswan

13. Sushila Devi wife of Shiv Paswan

14. Most. Jago Kuwar wife of Chhote Paswan

15. Prabhawati Devi wife of Madari (since deceased) (Vide order dated 19.06.2018, her legal heirs have been brought on record.

15.i. Ramesh Paswan, aged about 35 years

15.ii. Rajesh Paswan, aged about 33 years

15.iii Brijesh Paswan, aged about 30 years

15.iv Sankar Paswan aged about 28 years are residents of Village Matyariya, P.S. Lauriya, District West Champaran.

16. Sunaina Devi, daughter of Gudar

17. Mahendra Ram, son of Anant Ram Respondent nos. 2 to 17 are residents of Village Matyariya, P.S. Lauriya, District West Champaran.

18. Most. Paspati Kuwar wife of Sukar Chaudhari Patna High Court L.P.A No.314 of 2017 dt.11-10-2023

19. Binod Chaudhary son of Bagar Choudhary

20. Most. Sumitra wife of Suresh Choudhary

21. Bal Choudhary son of Tulsi Choudhary Respondent Nos. 18 to 21 are residents of Village Baghlochana, Noniyatola, P.S. Lauriya, District West Champaran.

22. Bhulan Chamar son of Jaggu Chamar

23. Prabhu Ram son of Alagu Ram

24. Yogendra Ram son of Dhanpat Ram

25. Hikaibi Devi wife of Hari Ram

26. Bipratri Devi wife of Ghura Ram

27. Most. Gaudam Kuwar wife of Alagu Ram (since deceased) (Vide order dated 19.06.2018, her legal heirs have been brought on record.

27.i Prabhu Ram (son) aged about 45 years

27.ii Ghanesh Ram (son), aged about 42 years

27.iii Mohanmati (daughter, aged about 28 years Residents of Village Matyariya, P.S. lauriya, District-West Champaran.

28. Sukar Paswan son of Mahanth Paswan

29. Munesh Paswan son of Mahanth Paswan

30. Bunela Dusadh son of Chhathu Dusad

31. Lal Chamar son of Ghura

32. Khaidaru Paswan son of Girija Respondent nos. 22 to 32 are residents of Village Matyariya, P.S. Lauriya, District West Champaran.

... ... Respondents-Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Ajay, G.A.- V Mr. Pratik Kumar Sinha, AC to G.A.- V Mr. Saurav Kumar, Advocate For the Respondents No.2 to 32 : Mr. Umesh Chandra Verma, Advocate Mr. Hemant Ray, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJIV ROY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 11-10-2023

The controversy arises under the Bihar Land Reforms

(Fixation of Ceiling Area and Acquisition of Surplus Land) Act,

1961 (for brevity, 'the Act of 1961'). The writ petitioner claimed Patna High Court L.P.A No.314 of 2017 dt.11-10-2023

that the order of the Collector which entitled his family,

consisting of his wife and three minor sons, to only one ceiling

unit of 20.82 acres of different categories of lands was wrong

since two of his sons had attained majority as on 09.09.1970. An

appeal was filed from the order of the Collector which did not

obviously raise this contention. No further challenge by way of

revision, as permissible under the statute was taken. The

appellate order dated 28.02.1997 was not even produced in the

writ petition, but later produced as Annexure-A. Obviously,

there was no challenge against the appellate order in the writ

petition. The writ petition filed in the year 2002, after more than

five years from the date of the appellate order, stood allowed.

2. The learned Single Judge considering the pleadings

of the writ petitioner directed that a Medical Board be

constituted who would conduct scientific test to determine the

age of the major sons and if they are found to have attained

majority as on 09.09.1970 the Collector would issue a fresh

notification.

3. The State's contention in the appeal is that there

was no cause for invoking the extra ordinary jurisdiction under

Article 226 of the Constitution of India and in any event, the

lands taken over from the writ petitioner was distributed to the Patna High Court L.P.A No.314 of 2017 dt.11-10-2023

landless people who have been impleaded as respondents 5 to

34. The State seeks to agitate the cause of the landless and also

sustain the order passed under the Act of 1961.

4. Learned Government Advocate appearing for the

State relied on two decisions of the Hon'ble Supreme Court.

State of Rajasthan v. D. R. Laxmi, (1996) 6 SCC 445, found

that when there is inordinate delay in filing a writ petition and

steps taken in the acquisition proceedings have become final,

the Court would be loath to interfere with the notification for

acquisition. When an award was passed and possession was

taken, it was held that the High Court though having power to

quash a notification issued under Section 4(1) of the Land

Acquisition Act, 1894, under Article 226, should not normally

exercise its power if there are delay and laches. This declaration

was despite the fact that no third-party rights were created in

that case. In the present case obviously, third party rights were

created.

5. Durga Prashad v. Chief Controller of Imports

and Exports, (1969) 1 SCC 185, spoke on the discretion of the

High Court under Article 226, on refusal to exercise which,

normally, even the Supreme Court does not interfere with it,

even if such cases are those in which fundamental rights are Patna High Court L.P.A No.314 of 2017 dt.11-10-2023

violated. Reliance was placed on Smt. Narayani Debi Khaitan

v. State of Bihar, C.A. No.140 of 1964, the judgment dated

22.09.1964, wherein it was held that exercise of discretion under

Article 226 has to be left to the High Court which has to be

exercised judiciously and reasonably even in cases where there

is alleged breach of fundamental rights.

6. The 1st respondent who was the writ petitioner was

issued with notice. However, none appeared for him

consistently. We took up the matter today for hearing after

having granted sufficient time for appearance, on the last

posting date which was on 07.10.2023.

7. The original order dated 05.07.1995 was issued by

the DCLR, Narkatiyaganj, the Collector as defined under the

Act of 1961. The objections under Section 10(3) of the Act

raised by the land holder-writ petitioner were considered; but he

was found to be possessing 45.05 acres of lands of different

classes. The land holder along with his family was allowed to

retain 20.82 acres of different categories of lands, while 24.23

acres were declared surplus. The appeal preferred against the

aforesaid original order was also dismissed by the appellate

authority by order dated 28.02.1997. There was no further

challenge made to the order.

Patna High Court L.P.A No.314 of 2017 dt.11-10-2023

8. The impugned judgment relied on L. Hirday

Narain v. Income-Tax Officer, Bareilly, AIR 1971 SC 33, to

find that when despite the availability of an alternate remedy, a

writ petition was filed and the same was entertained, after

keeping it pending for long years, it cannot be dismissed on that

ground. We perfectly agree with the said observation, but we

have to notice that here objection raised was regarding

maintainability of the writ petition itself when it was filed. The

writ petition was filed in 2002 when the appellate order was

passed in 1997. There was a revisional remedy available to the

1st respondent which was not availed. Even a revision would not

have been entertained after five years and hence there is no

question of entertaining a writ petition. Further, it has also to be

noticed that in the ensuing time, the surplus lands as determined

in the original order and affirmed in appeal were distributed to

the landless. There is no question of a resumption after five

years. We find the writ petition itself to be not maintainable as

on the date of its filing.

9. We have to notice that the contention raised could

have been urged before the original authority and the appellate

authority which was not done. Even at the revisional stage, a

new contention could have been taken or a writ petition filed Patna High Court L.P.A No.314 of 2017 dt.11-10-2023

immediately after the original order, to raise that contention.

The writ petitioner-land owner had slept over his rights and

there is no question of the writ petition being filed after five

years of the appellate order; on a bland assertion of two children

having attained majority without any substantiating documents.

We do not reject the claim merely on the ground of available

alternate remedy, but on the ground also of the writ petition

itself not being maintainable as on the date of its filing.

10. We set aside the impugned judgment, allow the

appeal and as a consequence reject the writ petition also.

(K. Vinod Chandran, CJ)

(Rajiv Roy, J) Sunil/-

AFR/NAFR
CAV DATE
Uploading Date          17.10.2023
Transmission Date