Patna High Court
Hemant Sharma And Ors vs The State Of Bihar And Ors on 10 July, 2025
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1745 of 2019
======================================================
1. Hemant Sharma and Ors son of Late Bishwanath Singh Sharma Resident of
Om Nilay, Harrkh Kothi, P.S. Begusarai, District- Begusarai, presently
residing at House No. C- 127, Shivalik Malviya Nagar, South Delhi, Hauz
Khas, Delhi.
2. Rashmi Sinha daughter of Late Bishwanath Singh Sharma Resident of Om
Nilay, Harrkh Kothi, P.S. Begusarai, District- Begusarai.
3.1. Ajay Kumar S/o Late Harikishoree Thakur, Husband of Late Nilima Thakur,
R/o Mohalla Harrah Kothi P.s. Town Thana at present residing at C-6/57,
2nd floor, Safdarganj Development area South West Delhi - 110016.
3.2. Mrs. Bhavna Thakur, D/o Late Nilima Thakur, W/o Mr. Lalit R/o Mohalla
Harrah Kothi P.s. Town Thana at present residing at C-6/57, 2nd floor,
Safdarganj Development area South West Delhi - 110016.
... ... Petitioner/s
Versus
1. The State of Bihar and Ors through the Secretary, Revenue and Land
Reforms Dpartment, Government of Bihar, Patna.
2. The Member Board of Revenue, Bihar, Patna.
3. The Collector, Begusarai.
4. The Additional Collector, Begusarai.
5. The Sub- Divisional Officer, Teghra, District- Begusarai.
6. The Land Reforms Deputy Collector, Teghra, District- Begusarai.
7. The Circle Officer, Teghra, District- Begusarai.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Pushkar Narain Shahi, Sr. Adv.
Mr. Shivam, Adv.
For the Respondent/s : Mr. Manoj Kumar Sinha (AC to SC19)
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 10-07-2025
Heard Mr. Pushkar Narain Shahi, Learned Senior Counsel
with Mr. Shivam, Advocate for the petitioners and Learned Counsel
Patna High Court CWJC No.1745 of 2019 dt.10-07-2025
2/11
for the State.
2. Learned Senior Counsel for the petitioners submits
that the present writ petition has been filed to ignore the ex-
parte enquiry report dated 26.12.2014 contained in letter dated
05.01.2015
(Annexure-P/7) made by the Additional Collector in
absence of the land holder/petitioners and conducted without
giving notice to the land holder. Further prayer has been made to
quash the order dated 29.11.2016 passed by the Collector
(respondent No.3) based on an enquiry report dated 26.12.2014
(Annexure-P/10) and further to quashing the Begusarai District
Gazette Notification dated 05.12.2016 (Annexure-P/11) made
under Section 15(1) of the Bihar Land Reforms (Fixation of
Ceiling Area and Acquisition of Surplus Land) Act, 1961
(hereinafter referred to as 'the Act of 1961').
3. Senior Counsel for the petitioners further submits
that the petitioners are admittedly the heirs of landlord against
whom the Land Ceiling Case No.6 of 1973-74 has been
initiated. He further submits that in the earlier round of
litigation, the Member Board of Revenue has passed order dated
25.09.1996 in Case No.65 of 1995 and specifically directed that
a more detailed enquiry is required to establish that the ex-
Patna High Court CWJC No.1745 of 2019 dt.10-07-2025
landlord entered into false transaction to defeat the purpose of
Ceiling Act and further ordered that it is undisputed that the
petitioners (petitioners of Case No.65 of 1995) have purchased
these plots of land from Jamabandi raiyat and they are in
peaceful possession. Therefore, it has been hold that the land
held by the present petitioners should not be declared surplus
under the Ceiling Act. The order of learned Commissioner,
Munger Division therefore, set aside and specific direction has
been made to the Collector to scrutinize the entire matter and
get a spot enquiry done by a Senior Officer in presence of the
parties. It has been further observed in the said order that after
such scrutiny, it has been held that the ex-landlord tried to defeat
the provision of Ceiling Act by making forge transactions then,
the quantum of land involved in this transaction should be
deducted from the unit allotted to the landlord in accordance
with Section 9(2) of the Act of 1961.
4. Senior Counsel further submits that the said order
has been passed in the year 1996, thereafter the Collector was
sitting tight over these observations made by Member Board of
Revenue and has conducted an ex-parte enquiry through
Additional Collector and submitted a report in the year 2014.
Patna High Court CWJC No.1745 of 2019 dt.10-07-2025
5. Senior Counsel further submits that the said
enquiry conducted by Additional Collector has been made in
gross violation of Section 5(1)(iii) of the Act of 1961. He further
submits that the concerned party as mentioned in Section 5(1)
(iii) of the Act of 1961 means landlords also.
6. Senior Counsel further submits that in the present
writ petition, the specific pleading has been made in this regard
in paragraph 21 of the writ petition in which it has been
submitted that despite the direction given in the order of
Member Board of Revenue dated 25.09.1996, the Collector may
make spot enquiry into the matter in presence of the party, but
no notice was given to the land holders (petitioners), the main
concerning party and in absence of the land holders
(petitioners), an enquiry said to have been made by a joint team
headed by the Additional Collector and a report dated
26.12.2014 was submitted to the Collector.
7. Senior Counsel further submits that on the basis of
ex-parte enquiry report, the learned Collector has passed order
on 22.08.2015 and held that the land holder has settled/
transferred the concerned land in the year 1942 through
unregistered Hukumnama in order to get rid of the provisions of
the Act of 1961.
Patna High Court CWJC No.1745 of 2019 dt.10-07-2025
8. Senior Counsel further submits that intimation prior
to passing final order, has been made by the Collector to the
landlords/petitioners, but it is only after submissions of the
enquiry report and that the stage of passing final order. He
further submits that the contention of law made in Section 5(1)
(iii) of the Act of 1961, is very clear. He further submits that
when the notion of law has not been followed at the time of
conduction of the enquiry then, the enquiry report itself is not
sustainable in the eye of law, and therefore, the order passed on
the basis of enquiry report is also not sustainable. He further
submits that the notification under section 5(1) of the Act of
1961 has been made in the light of said order passed by the
Collector based on ex-parte enquiry report and therefore, he
submits that all the three orders i.e., ex-parte enquiry report
dated 26.12.2014 (Annexure-P/7), the order dated 29.11.2016
passed by the Collector (Annexure-P/10) and the Begusarai
District Gazette Notification dated 05.12.2016 (Annexure-P/11)
be set aside.
9. Learned Counsel for the State vehemently opposes
the prayer of the petitioners and submits that the enquiry report
has been made completely in accordance with law. He further
Patna High Court CWJC No.1745 of 2019 dt.10-07-2025
submits that the order passed by the Member Board of Revenue
is very clear in which it has been stated that the enquiry report
has been conducted informing the party and according to him,
the party means the party who filed the petition of revision
before the Member Board of Revenue.
10. Counsel further submits that prior to hearing on
enquiry report, notices were sent to the petitioners of the
Member Board of Revenue. He further submits that the
contention of petitioners is that compliance of section 5(1)(iii)
of the Act of 1961 has been made, is not correct. He further
submits that before passing the final order, the Collector has
issued notice on the advise of the General Pleader of the State
and notices were served upon petitioners being heirs and legal
representatives of the landlord, who died at the time of passing
final order. He further submits that the Collector has passed
order in presence of the present writ petitioners, and therefore,
according to him, the order passed by the Collector is
completely in accordance with law in which land of petitioners
has been declared surplus and in this regard, the proper
notification under section 15(1) of the Act of 1961, has been
made. It is due to this reason, according to him, all the three
Patna High Court CWJC No.1745 of 2019 dt.10-07-2025
Annexures- P/7, P/10 and P/11, which are being challenged by
the petitioners, be sustainable in the eye of law and the writ
petition may be dismissed.
11. After hearing the parties and upon perusal of the
documents, it transpires to this Court that a very limited point is
involved in the present case i.e., whether the alleged ex-parte
enquiry which was directed to be conducted by the senior
officials of the State in the order passed by the Member Board
of Revenue in revision case, has been complied in its true spirit
or not?
12. With a view to decide the above said question, it is
necessary to re-look the provisions of Section 5 of the Act of
1961 which states as follows:-
5. No person to hold land in excess of
the ceiling area. (1) (i) It shall not be lawful for
any family to hold, except otherwise provided
under this Act, land in excess of the ceiling area.
Explanation. All lands owned or held
individually by the members of a family or jointly
by some or all of the members of such family shall
be deemed to be owned or held by the family.
(ii) No land holder holding land in
excess of the ceiling area shall from the
commencement of the Bihar Land Reforms
Patna High Court CWJC No.1745 of 2019 dt.10-07-2025
(Fixation of Ceiling Area and Acquisition of
Surplus Land) (Amendment) Act, 1972 and till the
publication of notification under Section 15,
transfer any land held by him except with the
previous permission in writing of the Collector,
who may refuse to give such permission if he is
satisfied for the reasons to be recorded in writing
that the transfer is proposed to be made with a
mala fide intention of defeating the object of this
Act :
Provided that the transfer of any land
made, with the previous permission of the
Collector, shall be deemed to have been made from
within the ceiling area admissible to the land-
holder:
Provided also that the transfer of any
land beyond the ceiling area admissible to the land
holder shall be deemed to have been made with the
object of defeating the provisions of the Act.
(iii) Notwithstanding anything to the
contrary contained in any judgment, decree or
order of any court or authority the Collector shall
have power to, make enquiries in respect of any
transfer of land by a land-holder whether by a
registered instrument or otherwise made after the
22nd day of October, 1959, and if he is satisfied
that such transfer was made with the object of
defeating, or in contravention of the provisions of
this Act or for retaining, benami or farzi land in
Patna High Court CWJC No.1745 of 2019 dt.10-07-2025
excess of the ceiling area, the Collector may after
giving reasonable notice to the parties concerned
to appear and be heard, annul such transfer and
thereupon the land shall be deemed to be held by
the transferor for the purposes of determining the
ceiling area he may hold under this Section.
13. Upon bare reading of Section 5 of the Act of 1961,
it transpires that the said section has been inserted in the Ceiling
law with special purpose to ascertain that no person to hold land
in excess of the ceiling area, the said provision has been enacted
in law by Act No.55 of 1982 by virtue of amendment made.
14. This Court upon bare reading of section 5 of the
Act of 1961, is of the view that it is the landlord's land against
whom ceiling has to be drawn or whose land comes within the
ceiling area, is under scrutiny, and therefore, Section 5(1)(i) of
the Act of 1961 talks about the person who owned land
individually by the members of a family or jointly by some or
all of the members of such family shall be deemed to be owned
or held by the family. It is also clear that Section 5(1)(ii) of the
Act of 1961 also talks about the land holders and upon
construction of the meaning of the party used in the revisional
order of the Member Board of Revenue construed according to
this Court means landlord and in his absence, his heirs and legal
representatives and also the holders of land. As opportunity of
Patna High Court CWJC No.1745 of 2019 dt.10-07-2025
enquiry as well as reasonable notice are indicated in section 5(1)
(iii) of the Act of 1961. Admittedly both parties agreed that in
the said enquiry report, petitioners were not heard as mentioned
in paragraphs 14 and 15 of the counter-affidavit filed by the
State. It has been accepted that the spot enquiry was not made in
presence of the present petitioners or their ancestors, but only
before the party to Revision before the Member Board of
Revenue in Case No.65 of 1995. But denial of paragraph 21 of
the writ petition, has not been made and on the basis of ex-parte
enquiry, the Collector relied upon and at the time of final order,
issued notice to the petitioners and then, passed order, which has
been followed by publication of Gazette Notification
(Annexure-11 of the writ petition).
15. This Court is of the firm view that petitioners
were necessary persons in whose presence, enquiry has to be
made in the light of Section 5 of the Act of 1961, which is
lacking in the present case. Therefore, all the three orders i.e.,
ex-parte enquiry report dated 26.12.2014 (Annexure-P/7), the
order dated 29.11.2016 passed by the Collector
(Annexure-P/10) and the Begusarai District Gazette Notification
dated 05.12.2016 (Annexure-P/11) are hereby set aside. The
matter is remanded back to the Collector once again with
Patna High Court CWJC No.1745 of 2019 dt.10-07-2025
direction that the enquiry under section 5 of the Act of 1961 has
to be conducted by the senior officer of the State in presence of
all concerned including petitioners in the light of the legal
provision of Section 5 of the Act of 1961. The said enquiry shall
be conducted within 90 days from the date of production of the
order and then, final order be passed within 3 months thereafter.
16. Upon the final decision made by the Collector, the
petitioners are free to proceed further.
17. With the aforesaid directions and observations, the
present writ application stands allowed.
(Dr. Anshuman, J.)
Prakashmani/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date
Transmission Date N/A
