Shree Hanuman Sugar and Industries Etc. Etc. Vs. State of Bihar and ors. - Court Judgment

Excerpt:
bihar land reforms (fixation of ceiling area and acquisition of surplus lands) act, 1961, sections 5(1)(iii), 10, 30,32-a and 32-b (as amended by bihar act 55 of 1982) - order passed under section 5(1)(iii)--appeal against, under section 30--pending on date of enforcement of amendment--effect--appeal will abate by virtue of section 32-a--thus, entire proceedings be initated afresh--direction for conducting fresh inquiry under section 5(1) (iii) and preparation of fresh draft statement--issued--relevant legal aspects--considered. - - but meanwhile the amending act was enacted and enforced by publication in the bihar gazette on the 30th april, 1982. this amending act like the earlier ordinance was to come into force retrospectively with effect from 9th april, 1981. it would reveal that apart from many significant changes in the original structure of the act, it inter alia inserted section 32-a and 32-b in the present act. but as would appear from the draft statement as well as the impugned orders of the authorities that previous findings recorded under clause (iii) of sub-section (1) of section 5 of the old act or other verifications made under the old act remain intact and the draft statement although published under the provisions of new act but on the basis of particulars collected under various provisions of the old act. it is well known that a right of appeal is not a matter of procedure, but is a substantive right. this is well known that pendency of an appeal maintains continuity of the original proceeding. therefore, the moment district collector passed orders for abatement of the appeals for a fresh proceeding, the revenue authorities had no option but to take steps to start fresh inquiry as per the requirements of the amended section 5. 23. in the instant case, as noticed above, the draft statement was published on the basis of verification and information received by the collector under the provisions of the old act as well his findings under clause (iii) sub-section (1) of section 5 the requirement of clauses (c1), (c2) and (c3) of section 10 in the draft was not complied with as would appear from the draft statement or even orders of the revenue authorities. 29. therefore, having regard to the peculiar facts of these cases as well as relevant statutory requirements and the command of different provisions of the amended act, as also having regard to the ratio laid down by the full bench in the cast of harendra prasad singh v. 30. in the result, the order of the additional collector dated 15.1.1995, the order of the collector dated 17.6.1985 as well as the order of the additional member, board of revenue, dated 6.7.1985 as also the findings of the additional collector under section 5 (1) (iii) of the act regarding transfers of the land and the consequential notifications including under section 11 (1) or 15 of the act are hereby quashed. n. pandey, j.1. the first writ petition has been filed on behalf of sri hanuman sugar and industries limited, whereas other petitions are preferred by different transferees from the original land holders with respect to some of the lands involved in land ceiling case no. 3 of 1983-84.2. all the petitioners have challenged the validity of the order passed by the additional collector, ceiling motihari (east champaran), dated 15th january, 1983, under section 10 (2) of the bihar land reforms (fixation of ceiling area and acquisition of surplus land) act, (in short 'act') and the order on appeal by the district collector, dated 17th june, 1985 as also the order of the additional member, board of revenue, dated 6th july, 1985.a prayer has also been made to quash the orders of the additional collector, passed under section 5(1) (iii) and section 29 of the act since neither proper enquiry was carried out nor petitioners were allowed to avail the statutory right of appeal against such orders, because by virtue of amendment of different provisions of the act by the bihar land reforms (fixation of ceiling area and acquisition of surplus land) (amendment) act, 1982 (bihar act 55 of 1982) (in short 'amending act'), particularly section 32-a and 32 b, their appeals had abated as per the order of the district collector, dated 2nd march, 1982.3. facts giving rise to these cases are undisputedly, in a narrow compass. the petitioner sri hanuman sugar and industries limited is the land holder of the total lands measuring 1467 acres and 25 decimals of different category. the proceeding in question was started some time in the year 1973-74 and returns were filed by the land holder before the authorities on 13th march, 1974. the purported verification under the provisions of section 8 of the act was carried out. unfortunately, such a verification was without notice to the parties. therefore, this court upon appreciating the grievance of the land holder, quashed the recommendation of the additional collector as also the consequential orders by the order dated 13th september, 1976 in cwjc no. 1312 of 1985 with a direction to the authorities for fresh verification in presence of the petitioners as also after giving them reasonable opportunity of hearing and adducing evidence in support of their claim for exemption etc. as required under section 9 of the act.4. it appears from the counter affidavit of the respondents that after verification terms of the order of the high court, the additional collector also conducted inquiry under section 5 (1) (iii) of the act and declared different sale deeds executed by the original landholder as illegal and farzi, copies of such orders are annexure a series to the counter-affidavit of the first case. undisputedly, against the orders passed under section 5 (1) (iii) of the act, the original land holders and different transferees filed appeals under section 30 of the act before the district collector, motihari. but meanwhile the amending act was enacted and enforced by publication in the bihar gazette on the 30th april, 1982. this amending act like the earlier ordinance was to come into force retrospectively with effect from 9th april, 1981. it would reveal that apart from many significant changes in the original structure of the act, it inter alia inserted section 32-a and 32-b in the present act.5. by virtue of the amendment in section 2,4,6,8,9,10 and 11 likewise at various stages, wide ranging substantive and structural changes were brought in the ceiling law. in order to give effect to the changes, it was, therefore, laid down in unmistakable terms by virtue of sections 32-a and 32-b that surplus area would be determined from the date of the enforcement of the amending act. therefore, by virtue of the provisions of section 32-a of the act, the collector by order dated 2nd march, 1982, held that all appeals pending on 9th april, 1981, stand abated and accordingly, he sent back the records to the original court for a fresh action in accordance with law.6. this is not dispute that draft statement in this case for the first time, as required under section 10 (2) of the act was published on 20th october, 1984 nor there is any dispute that on behalf of hanuman sugar industries, an objection under section 10 (3) of the act was filed, inter alia, the no verification of land nor due inquiry as required under section 5 (1) (iii) as per the provisions of the amending act was ever made after abatement of their appeals. because in term of section 10 (1), draft statement was required to be published on the basis of information given by or on behalf of the landholder as per the collector under sections 6,8,9 or on a report obtained from the collector under section 7 of the amending act. such a draft statement apart from the said requirement must contain various particulars enumerated in that section. likewise, clauses (c-1), (c-2) and (c-3) of sub-section (1) of section 10 contain various particulars and descriptions of the land, substance of the findings of the collector under clause (iii) sub-section (1) of section 5 and recommendation regarding exemption under section 29 of the act. admittedly, from 9.4.1981, when act 55 of 1982 came into force, all such information and particulars were required to be gathered by the collector on the basis of fresh verification and inquiry. but unfortunately, the draft statement was published on the basis of materials collected in accordance with provisions of the old act.7. it would reveal that additional collector while rejecting objection of the land holders held that as per requirement of sections 32-a and/or 32-b of the amending act, the proceeding had to commence from the stage of section 10. in the instant case, the draft statement for the first time was published on 24.10.1984, therefore, there was no need to start the proceeding afresh. he further held that even after abatement of the appeals of the landholders or transferees under section 32-a of the act no fresh inquiry as required under section 5 was necessary. according to him, if the landholders or transferees were aggrieved by the findings of the collector under clause (iii) of sub-section (1) of section 5 of the old act, they could have availed their remedy of appeal, etc. similar findings were also recorded by the collector of the district and the learned additional member, board of revenue while rejecting appeal and revision of the landholder.8. learned counsel appearing for the petitioners, contended that from a bare reference to amended sections 2,4,6,10,11 and substitution of sections 5 and 9, including addition of sections 32-a and 32-b of the act, it is manifest that wide-ranging substantive and structural changes were brought in the ceiling law. therefore, by effectuating sections 32-a and 32-b, the legislature had directed redermination of the surplus area in accordance with the new law. accordingly, with effect from the 9th april, 1981, respondent authorities were required to re-determine and to decide the proceeding afresh in accordance with the changes brought about in the law. in support of such a contention reliance was placed to a full bench decision of this court in the case of harendra prasad singh v. the state of bihar and anr. : air1985pat38 .9. it was next contended that admittedly in these cases appeals filed by the original land holders and transferee petitioners under section 30 of the old act against the findings of the collector under clause (iii) of sub-section (1) of section 5 had abated by the orders of the collector of the district on 2.3.1982 as per the requirement of section 32-a of the amending act with a direction to decide the proceeding afresh. but as would appear from the draft statement as well as the impugned orders of the authorities that previous findings recorded under clause (iii) of sub-section (1) of section 5 of the old act or other verifications made under the old act remain intact and the draft statement although published under the provisions of new act but on the basis of particulars collected under various provisions of the old act.10. on the other hand, on behalf of the state, it was contended that in the instant case, admittedly the draft statement was published under section 10 (2), after commencement of the amending act. therefore, the question of abatement as required under section 32-a or 32-b of the act does not rise. it was stated that as per the provisions of the amending act, pending proceedings had to commence from the stage of section 10. therefore, there was nothing wrong if the draft statement was published on the basis of the information given by the landholder or collector, showing different particulars collected as per the provisions of the old act.11. it was next contended that even after abatement of appeals preferred against the orders passed under clause (iii) of sub-section (1) of section 5 of the act, petitioners can avail their right of appeal as per the second proviso of section 30 of the amending act within 30 days from the date of final publication under sub-section (1) of section 11. that apart, no objection can be raised at the stage of draft publication under section 10(2) with respect to any grievance with regard to the particulars disclosed under clauses (c1), (c2) and (c3) of section 10. such objection can only be made by way of appeal after final publication under section 10 (1) of the act.12. in the background of the facts noticed above, only meaningful question would arise for consideration 5 is whether in view of the provisions of section 32-a or 32-b and abatement of petitioners' appeal by the order of the district collector on 2.3.1982, the revenue authorities were required to determine the ceiling proceeding afresh in view of the law laid down by the full bench in the case of harendra prasad singh v. state of bihar and anr. (supra).13. it suffices to mention that the bihar ordinance no. 66 of 1981 was published in the bihar gazette on 9th april, 1981, followed by bihar ordinance no. 22 of 1982 which ultimately culminated in the bihar land reforms (fixation of ceiling area and acquisition of surplus land (amendment) act, 1982. by the amending act undisputedly, drastic amendments were brought defining section 2 and also section 4. what is significant to note is that section 5 and similarly section 9 incorporated certain new provisions to the benefit of the landholders and transferees. in section 10, clauses (c-1), (c-2) and (c-3) were inserted to command revenue authorities to include and disclose such particulars in the draft statement. that apart, by inserting section 32-a and 32-b, material amendments were brought under the act to give effect to the amended law.14. in the background of such changes, it is thus manifest that redermination of the surplus area in accordance with the new law is necessitated. with regard to pending proceedings on 9th april, 1981 barring those which had achieved finality by publication under sub-section (1) of section 11 it was directed in categories terms that such a proceeding shall be disposed of afresh in accordance with the amended law.15. that apart, all proceedings whether appeals, revision, review, reference pending prior to 9th april, 1981, had to abate and to be decided in accordance with the changed law. in these backgrounds, it would be useful notice that in the case of harendra prasad singh (supra), this court after examining different provisions of the amended act, read sections 32-a and 32b harmoniously in these words:when sections 32-a and 32-b are read together they seem to run patently counter to the writ petitioner's stand. both of them, with effect from the 9th of april, 1981, cry a halt to all the earlier proceedings and to begin on a clean slate and to have them disposed of afresh. these again have to be re-determined or decided afresh in accordance with the provisions of section 10 of the ceiling act, i.e. in accordance with the changes brought about in the law. as has already been noticed, the whole thrust of the amending act was to bring about changes in the substantive law and to effectuate them by directing are-determination in accordance therewith....16. it has to be further noticed that while giving true construction and meaning of the words, that the proceeding to 'be disposed of afresh', as mentioned under section 32-a and 32-b, their lordships opined that earlier proceedings decided or pending in accordance with the old law were rendered nugatory and afresh decision obligated on the basis of the changes under the new law. to understand the meaning of 're-determination', it would be apt to notice the relevant findings from paragraph 15 of the full bench in these words:15. *******a true construction of the words, 'be disposed of afresh', is itself a mandate that the earlier disposal of the cases is virtually nullified. to put it in a metaphor, it wipes off the writing on the slate leaving it clean to be written afresh. viewed from another angle, section 32-b is itself a statutory setting aside of the previous determination. the submission that even though the final publication of draft statement under the unamended section 11 (1) after the 9th of april, 1981 would be contrary to the statute, it should be allowed to hold the field till it is set aside by way of appeal, revision or quashing appears to me as contrary to the very grist of this law. it would be satisfying a multiplicity of proceedings by way of individual challenge and setting aside of a determination wholly without jurisdiction when the section itself says that the earlier proceedings are obliterated and the matter is to be decided afresh....17. similar view, what was taken by the full bench in the case of harendra prasad singh v. the state of bihar and anr. (supra), a division bench of this court had taken in the case of chandrajot kuer & many others v. state of bihar & others 1984 pljr 90: 1983 bbcj 197), which can be noticed hereunder:9. the above provision shows that all proceedings pending on the date of commencement of the ordinance of 1981 and in which final publication under section 11 (1) has not been made shall be disposed of afresh in accordance with the provision of section 10 of the act. the combined effect of section 32-a and 32-b therefore, is that the entire procedure from beginning to end must be carried out afresh. since the proceedings have got to be decided afresh, all findings arrived at earlier stages of the proceedings must be considered to have been wiped off whether the findings of fact were in favour of the landholder or were in favour of the revenue18. in the case of smt. kunti sharma and ors. v. the state of bihar and ors. 1990 (1) pljr 66, a learned single judge of this court after examining the scope and prospect of various provisions of the amending act and the effect of sections 32-a and 32-b, held that with effect from 9th april, 1981 the revenue authorities were required to proceed afresh in accordance with the amended provisions of section 10, barring those proceedings which had achieved finality by publication under amended sub-section (1) of section 11. it would be apt to notice a relevant passage from the report:4. however, all such proceedings subsequent to the said date were thereafter to be decided in accordance with the changed law and consequently, it was mandated that these shall be disposes of afresh in accordance therewith. in sum, substantive changes in the law, which had been enacted, were sought to be procedurally enforced by directing a re-determination of the surplus area in accordance therewith, with effect from the date of the commencement of the bihar land reforms (fixation of ceiling area and acquisition of surplus land (amendment) act, 1982, i.e. on the 9th of april, 1981 aforesaid.yet while holding similar views, what was taken by the full bench or the division bench, recently a division bench of which one of us was a member, answered a similar question in favour of the revenue authorities and held that amending provisions of the new act would be applicable with respect to all pending proceedings, irrespective of the stages. relevant paragraph of the said report from the case of prakash kumar jha and ors. v. the state of bihar and ors. 1995 (1) pljr 781, is reproduced:16. it provides that all appeals, revisions, reviews or reference, ending before any authority on 9th april, 1981, would abate and the collector shall proceed with the case afresh in accordance with the amended provisions from the stage of section 10 of the act. similarly, with regard to all proceedings, pending on 9th april, 1981, barring those which had achieved finality by publication under unamended sub-section (1) of section 11, are to be disposed of afresh in accordance with the amended law.19. apart from re-determination of the proceedings afresh as indicated by the above-mentioned pronouncements, it has to be noticed that in terms of requirement of section 32-a, appeals of the petitioners, pending on 9th april, 1981, had abated by the orders of the district collector, dated 2.3.1982. there is no dispute that as per plain reading of section 32-a, appeals, revisions, reviews, reference of other than those arising out of orders passed under section 8 or sub-section (3) of section 16, pending with any revenue authority on such date had to abate.20. as per proviso to section 30 substituted vide act 55 of 1982, it would appear that no appeal would lie be against orders passed under sections 5 or 29 before final publication under sub-section (1) of section 11. in other words, such appeals can only be available after final publication under sub-section (1) of section 11.21. undisputedly, as per the provisions of section 30 of the unamended act, petitioners had statutory right of appeal against orders passed under clause (iii) of sub-section (1) of section 5 or section 29 of the act. it is well known that a right of appeal is not a matter of procedure, but is a substantive right. such a right to approach a superior court accrues to the litigant and so exists on and from the date the lies commences. there is no doubt that vested right of appeal can be taken away by way of subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. reference in this regard can be usefully made to a decision of the apex court in the case of garikapati veeraya v. n. subbiah choudhary and ors. : [1957]1scr488 .22. admittedly, the virtue of new amendment of the ceiling law, right of appeal conferred on a landholder or his successor or transferees from such land holder with respect to the lands involved in a ceiling proceeding has not been taken away retrospectively or adversely. this is well known that pendency of an appeal maintains continuity of the original proceeding. in other words, appeals are nothing else but steps in a series of proceedings. therefore, the moment district collector passed orders for abatement of the appeals for a fresh proceeding, the revenue authorities had no option but to take steps to start fresh inquiry as per the requirements of the amended section 5.23. in the instant case, as noticed above, the draft statement was published on the basis of verification and information received by the collector under the provisions of the old act as well his findings under clause (iii) sub-section (1) of section 5 the requirement of clauses (c1), (c2) and (c3) of section 10 in the draft was not complied with as would appear from the draft statement or even orders of the revenue authorities.24. mr. verma, learned counsel for the state, however, placed reliance on two different decisions of this court in the case of m/s motipur sugar factory ltd. and anr. v. the state of bihar and anr. 1978 blj 642 and bishun rai and anr. v. the state of bihar and anr.. 1993 (2) blj 276 in support of his contention that even after abatement of the appeals, collector was justified while publishing the draft statement on the basis of his findings which were previously recorded under sub-clause (iii) of sub-section (1) of section 5 or the verification made under the old act.in my view, the facts of the first case are completely different. it was a case where writ-petition was dismissed because of an alternative remedy of appeal being available at that stage against the order passed under clause (iii) of sub-section (1) of section 5. therefore, in the instant case, deferent recital of such a judgment has no relevancy.25. so far as the case of bishun rai and anr. v. the state of bihar and ors. (supra), as relied upon by the state, there is no doubt that use of materials collected under the provisions of unamended act in the draft statement published under sub-section (1) of section 10 of the amended act was. approved. but a plain reading of the said judgment would reveal that effect of various changes under the new act and the ratio laid down by the full bench in the case of harendra prasad singh v. the state of bihar and anr. (supra) or the case of chandrajot kuer (supra), particularly paragraph 9 regarding prospect and effect of the amended act, was not noticed, that apart, a reference to paragraph 48 of the judgment would show that no grievance was raised by the petitioner that by reasons of the amending act, any substantial change was made for determination of the ceiling area of landholder nor any prejudice was shown by him against the draft publication under section 10 (1). therefore, in my view, the decision in the said case cannot be an authority for the purpose of these cases.26. there is no doubt that from the counter-affidavit filed on behalf of the respondents and the order of the additional collector, passed under section 5 (1) (iii) of the act, it would appear that nearly about 1000 acres of land were disposed of by the petitioners landholders through different transactions within a short time. the stand of the respondents is that such transfers were made either benami or farzi with a view to defeat the object of the act, but at the same time, this cannot be ignored that the manner in which the inquiry was carried out under section 5 (1) (iii) of the act is quite cryptic and unsatisfactory. undisputedly, as alleged, most of the transferees in absence of proper notices, could not even participate at the time of inquiry as carried out under section 5 (1) (iii) of the old act. though i am not required to discuss the case of individual petitioners transferees of effect of such transfers, but it would appear from the averments of the parties that some of the transferees have been claimed their right and possession either through samarparnama or different nature of dedications which had taken place long back. therefore, in absence of a proper inquiry findings of the collector about such transactions as benami ox farzi cannot be sustained. therefore, in this background be also, when the collector passed orders for abatement of appeals, it was proper for the additional collector to hold a fresh inquiry after proper opportunity to the petitioners as per the provisions of section 5 of the amended act. 27. in the background of the facts noticed above, it has to be remembered that the petitioners being aggrieved by the findings of the additional collector under section 5 (1) (iii) of the act, had preferred their appeals before the collector as per the provisions of section 30 of the old act. therefore, if they had opportunity to press their appeals, naturally all the defects including merit and demerit regarding findings of the additional collector recorded under section 5 (1) (iii) of the act could have been pointed out and examined by the collector.28. apart from the aforesaid defects in the proceedings, even section 10 (1) of the amended act requires publication of draft statement of the basis of the description of the land transferred by the landholder in accordance with or contravention of the provisions of the act, the substance of findings of the collector under section 5 (1) (iii) of the act and the substance of the recommendation and order regarding exemption in terms of the amended clauses (c1), (c2) and (c3) of sub-section (1) of section 10 of the act. it has already been noticed that the provisions as required under clauses (c1), (c2), and (c3) have been inserted by the new amended act. in the background of the facts noticed above, unless and until, there was a fresh inquiry and findings of the collector under section 5 of the amended act, no draft statement should have been published.29. therefore, having regard to the peculiar facts of these cases as well as relevant statutory requirements and the command of different provisions of the amended act, as also having regard to the ratio laid down by the full bench in the cast of harendra prasad singh v. the state of bihar and ors. (supra), and other cases noticed above, i feel inclined to hold that after the order of the district collector, dated 23.1982, for abatement of appeals and a fresh decision in accordance with law, the additional collector had no option, but to take steps to decide and re-determine the proceeding afresh in accordance with the provisions of section 5 and 10 of the act.30. in the result, the order of the additional collector dated 15.1.1995, the order of the collector dated 17.6.1985 as well as the order of the additional member, board of revenue, dated 6.7.1985 as also the findings of the additional collector under section 5 (1) (iii) of the act regarding transfers of the land and the consequential notifications including under section 11 (1) or 15 of the act are hereby quashed. the additional collector, ceiling, is directed to conduct a fresh inquiry under section 5 (1) (iii) of the amended act and publish a fresh draft statement as required under section 10 (1) of the act.as these cases have been disposed of in terms of the learned advocate, therefore, in order to avoid unnecessary delay, all the concerned parties are directed to appear in the court of additional collector, motihari, east champaran (respondent no. 4) or the additional collector, ceiling, as the case may be, on or before 3rd of february, 1997, so that a firm date can be fixed for hearing and inquiry, etc.but until final disposal of the matter, all the parties to the proceeding are refrained for transferring or disposing of any land which was declared surplus by virtue of the impugned orders.31. with the above observations/directions, all the writ applications are thus disposed of. but in the facts and circumstances of the case, there shall be no order as to costs.

Judgment:

N. Pandey, J.

1. The first writ petition has been filed on behalf of Sri Hanuman Sugar and Industries Limited, whereas other petitions are preferred by different transferees from the original land holders with respect to some of the lands involved in land ceiling case No. 3 of 1983-84.

2. All the petitioners have challenged the validity of the order passed by the Additional Collector, Ceiling Motihari (East Champaran), dated 15th January, 1983, under Section 10 (2) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, (in short 'Act') and the order on appeal by the District Collector, dated 17th June, 1985 as also the order of the Additional Member, Board of Revenue, dated 6th July, 1985.

A prayer has also been made to quash the orders of the Additional Collector, passed under Section 5(1) (iii) and Section 29 of the Act since neither proper enquiry was carried out nor petitioners were allowed to avail the statutory right of appeal against such orders, because by virtue of amendment of different provisions of the Act by the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1982 (Bihar Act 55 of 1982) (in short 'Amending Act'), particularly Section 32-A and 32 B, their appeals had abated as per the order of the District Collector, dated 2nd March, 1982.

3. Facts giving rise to these cases are undisputedly, in a narrow compass. The petitioner Sri Hanuman Sugar and Industries Limited is the land holder of the total lands measuring 1467 acres and 25 decimals of different category. The proceeding in question was started some time in the year 1973-74 and returns were filed by the Land holder before the authorities on 13th March, 1974. The purported verification under the provisions of Section 8 of the Act was carried out. Unfortunately, such a verification was without notice to the parties. Therefore, this Court upon appreciating the grievance of the land holder, quashed the recommendation of the Additional Collector as also the consequential orders by the order dated 13th September, 1976 in CWJC No. 1312 of 1985 with a direction to the authorities for fresh verification in presence of the petitioners as also after giving them reasonable opportunity of hearing and adducing evidence in support of their claim for exemption etc. as required under Section 9 of the Act.

4. It appears from the counter affidavit of the respondents that after verification terms of the order of the High Court, the Additional Collector also conducted inquiry under Section 5 (1) (iii) of the Act and declared different sale deeds executed by the original landholder as illegal and farzi, copies of such orders are Annexure A series to the counter-affidavit of the first case. Undisputedly, against the orders passed under Section 5 (1) (iii) of the Act, the original land holders and different transferees filed appeals under Section 30 of the Act before the District Collector, Motihari. But meanwhile the Amending Act was enacted and enforced by publication in the Bihar Gazette on the 30th April, 1982. This Amending Act like the earlier ordinance was to come into force retrospectively with effect from 9th April, 1981. It would reveal that apart from many significant changes in the original structure of the Act, it inter alia inserted Section 32-A and 32-B in the present Act.

5. By virtue of the amendment in Section 2,4,6,8,9,10 and 11 likewise at various stages, wide ranging substantive and structural changes were brought in the ceiling law. In order to give effect to the changes, it was, therefore, laid down in unmistakable terms by virtue of Sections 32-A and 32-B that surplus area would be determined from the date of the enforcement of the Amending Act. Therefore, by virtue of the provisions of Section 32-A of the Act, the Collector by order dated 2nd March, 1982, held that all appeals pending on 9th April, 1981, stand abated and accordingly, he sent back the records to the original Court for a fresh action in accordance with law.

6. This is not dispute that draft statement in this case for the first time, as required under Section 10 (2) of the Act was published on 20th October, 1984 nor there is any dispute that on behalf of Hanuman Sugar Industries, an objection under Section 10 (3) of the Act was filed, inter alia, the no verification of land nor due inquiry as required under Section 5 (1) (iii) as per the provisions of the Amending Act was ever made after abatement of their appeals. Because in term of Section 10 (1), draft statement was required to be published on the basis of information given by or on behalf of the landholder as per the Collector under Sections 6,8,9 or on a report obtained from the Collector under Section 7 of the Amending Act. Such a draft statement apart from the said requirement must contain various particulars enumerated in that section. Likewise, clauses (C-1), (C-2) and (C-3) of Sub-section (1) of Section 10 contain various particulars and descriptions of the land, substance of the findings of the Collector under clause (iii) Sub-section (1) of Section 5 and recommendation regarding exemption under Section 29 of the Act. Admittedly, from 9.4.1981, when Act 55 of 1982 came into force, all such information and particulars were required to be gathered by the Collector on the basis of fresh verification and inquiry. But unfortunately, the draft statement was published on the basis of materials collected in accordance with provisions of the old Act.

7. It would reveal that Additional Collector while rejecting objection of the land holders held that as per requirement of Sections 32-A and/or 32-B of the Amending Act, the proceeding had to commence from the stage of Section 10. In the instant case, the draft statement for the first time was published on 24.10.1984, therefore, there was no need to start the proceeding afresh. He further held that even after abatement of the appeals of the landholders or transferees under Section 32-A of the Act no fresh inquiry as required under Section 5 was necessary. According to him, if the landholders or transferees were aggrieved by the findings of the Collector under clause (iii) of Sub-section (1) of Section 5 of the old Act, they could have availed their remedy of appeal, etc. Similar findings were also recorded by the Collector of the district and the learned Additional Member, Board of Revenue while rejecting appeal and revision of the landholder.

8. learned Counsel appearing for the petitioners, contended that from a bare reference to amended Sections 2,4,6,10,11 and substitution of Sections 5 and 9, including addition of Sections 32-A and 32-B of the Act, it is manifest that wide-ranging substantive and structural changes were brought in the ceiling law. Therefore, by effectuating Sections 32-A and 32-B, the legislature had directed redermination of the surplus area in accordance with the new law. Accordingly, with effect from the 9th April, 1981, respondent authorities were required to re-determine and to decide the proceeding afresh in accordance with the changes brought about in the law. In support of such a contention reliance was placed to a Full Bench decision of this Court in the case of Harendra Prasad Singh v. The State of Bihar and Anr. : AIR1985Pat38 .

9. It was next contended that admittedly in these cases appeals filed by the original land holders and transferee petitioners under Section 30 of the old Act against the findings of the Collector under clause (iii) of Sub-section (1) of Section 5 had abated by the orders of the Collector of the district on 2.3.1982 as per the requirement of Section 32-A of the Amending Act with a direction to decide the proceeding afresh. But as would appear from the draft statement as well as the impugned orders of the authorities that previous findings recorded under clause (iii) of Sub-section (1) of Section 5 of the old Act or other verifications made under the old Act remain intact and the draft statement although published under the provisions of new Act but on the basis of particulars collected under various provisions of the old Act.

10. On the other hand, on behalf of the State, it was contended that in the instant case, admittedly the draft statement was published under Section 10 (2), after commencement of the Amending Act. Therefore, the question of abatement as required under Section 32-A or 32-B of the Act does not rise. It was stated that as per the provisions of the Amending Act, pending proceedings had to commence from the stage of Section 10. Therefore, there was nothing wrong if the draft statement was published on the basis of the information given by the landholder or Collector, showing different particulars collected as per the provisions of the old Act.

11. It was next contended that even after abatement of appeals preferred against the orders passed under clause (iii) of Sub-section (1) of Section 5 of the Act, petitioners can avail their right of appeal as per the second proviso of Section 30 of the Amending Act within 30 days from the date of final publication under Sub-section (1) of Section 11. That apart, no objection can be raised at the stage of draft publication under Section 10(2) with respect to any grievance with regard to the particulars disclosed under clauses (c1), (c2) and (c3) of Section 10. Such objection can only be made by way of appeal after final publication under Section 10 (1) of the Act.

12. In the background of the facts noticed above, only meaningful question would arise for consideration 5 is whether in view of the provisions of Section 32-A or 32-B and abatement of petitioners' appeal by the order of the District Collector on 2.3.1982, the revenue authorities were required to determine the ceiling proceeding afresh in view of the law laid down by the Full Bench in the case of Harendra Prasad Singh v. State of Bihar and Anr. (supra).

13. It suffices to mention that the Bihar Ordinance No. 66 of 1981 was published in the Bihar Gazette on 9th April, 1981, followed by Bihar Ordinance No. 22 of 1982 which ultimately culminated in the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land (Amendment) Act, 1982. By the Amending Act undisputedly, drastic amendments were brought defining Section 2 and also Section 4. What is significant to note is that Section 5 and similarly Section 9 incorporated certain new provisions to the benefit of the landholders and transferees. In Section 10, clauses (c-1), (c-2) and (c-3) were inserted to command revenue authorities to include and disclose such particulars in the draft statement. That apart, by inserting Section 32-A and 32-B, material amendments were brought under the Act to give effect to the amended law.

14. In the background of such changes, it is thus manifest that redermination of the surplus area in accordance with the new law is necessitated. With regard to pending proceedings on 9th April, 1981 barring those which had achieved finality by publication under Sub-section (1) of Section 11 it was directed in categories terms that such a proceeding shall be disposed of afresh in accordance with the amended law.

15. That apart, all proceedings whether appeals, revision, review, reference pending prior to 9th April, 1981, had to abate and to be decided in accordance with the changed law. In these backgrounds, it would be useful notice that in the case of Harendra Prasad Singh (supra), this Court after examining different provisions of the amended Act, read Sections 32-A and 32B harmoniously in these words:

When Sections 32-A and 32-B are read together they seem to run patently counter to the writ petitioner's stand. Both of them, with effect from the 9th of April, 1981, cry a halt to all the earlier proceedings and to begin on a clean slate and to have them disposed of afresh. These again have to be re-determined or decided afresh in accordance with the provisions of Section 10 of the Ceiling Act, i.e. in accordance with the changes brought about in the law. As has already been noticed, the whole thrust of the Amending Act was to bring about changes in the substantive law and to effectuate them by directing are-determination in accordance therewith....

16. It has to be further noticed that while giving true construction and meaning of the words, that the proceeding to 'be disposed of afresh', as mentioned under Section 32-A and 32-B, their Lordships opined that earlier proceedings decided or pending in accordance with the old law were rendered nugatory and afresh decision obligated on the basis of the changes under the new law. To understand the meaning of 're-determination', it would be apt to notice the relevant findings from paragraph 15 of the Full Bench in these words:

15. *******

a true construction of the words, 'be disposed of afresh', is itself a mandate that the earlier disposal of the cases is virtually nullified. To put it in a metaphor, it wipes off the writing on the slate leaving it clean to be written afresh. Viewed from another angle, Section 32-B is itself a statutory setting aside of the previous determination. The submission that even though the final publication of draft statement under the unamended Section 11 (1) after the 9th of April, 1981 would be contrary to the Statute, it should be allowed to hold the field till it is set aside by way of appeal, revision or quashing appears to me as contrary to the very grist of this law. It would be satisfying a multiplicity of proceedings by way of individual challenge and setting aside of a determination wholly without jurisdiction when the section itself says that the earlier proceedings are obliterated and the matter is to be decided afresh....

17. Similar view, what was taken by the Full Bench in the case of Harendra Prasad Singh v. The State of Bihar and Anr. (supra), a Division Bench of this Court had taken in the case of Chandrajot Kuer & many others v. State of Bihar & others 1984 PLJR 90: 1983 BBCJ 197), which can be noticed hereunder:

9. The above provision shows that all proceedings pending on the date of commencement of the Ordinance of 1981 and in which final publication under Section 11 (1) has not been made shall be disposed of afresh in accordance with the provision of Section 10 of the Act. The combined effect of Section 32-A and 32-B therefore, is that the entire procedure from beginning to end must be carried out afresh. Since the proceedings have got to be decided afresh, all findings arrived at earlier stages of the proceedings must be considered to have been wiped off whether the findings of fact were in favour of the landholder or were in favour of the Revenue

18. In the case of Smt. Kunti Sharma and Ors. v. The State of Bihar and Ors. 1990 (1) PLJR 66, a learned Single Judge of this Court after examining the scope and prospect of various provisions of the Amending Act and the effect of Sections 32-A and 32-B, held that with effect from 9th April, 1981 the revenue authorities were required to proceed afresh in accordance with the amended provisions of Section 10, barring those proceedings which had achieved finality by publication under amended Sub-section (1) of Section 11. It would be apt to notice a relevant passage from the report:

4. However, all such proceedings subsequent to the said date were thereafter to be decided in accordance with the changed law and consequently, it was mandated that these shall be disposes of afresh in accordance therewith. In sum, substantive changes in the law, which had been enacted, were sought to be procedurally enforced by directing a re-determination of the surplus area in accordance therewith, with effect from the date of the commencement of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land (Amendment) Act, 1982, i.e. on the 9th of April, 1981 aforesaid.

Yet while holding similar views, what was taken by the Full Bench or the Division Bench, recently a Division Bench of which one of us was a member, answered a similar question in favour of the Revenue authorities and held that amending provisions of the new Act would be applicable with respect to all pending proceedings, irrespective of the stages. Relevant paragraph of the said report from the case of Prakash Kumar Jha and Ors. v. The State of Bihar and Ors. 1995 (1) PLJR 781, is reproduced:

16. It provides that all appeals, revisions, reviews or reference, ending before any authority on 9th April, 1981, would abate and the Collector shall proceed with the case afresh in accordance with the amended provisions from the stage of Section 10 of the Act. Similarly, with regard to all proceedings, pending on 9th April, 1981, barring those which had achieved finality by publication under unamended Sub-section (1) of Section 11, are to be disposed of afresh in accordance with the amended law.

19. Apart from re-determination of the proceedings afresh as indicated by the above-mentioned pronouncements, it has to be noticed that in terms of requirement of Section 32-A, appeals of the petitioners, pending on 9th April, 1981, had abated by the orders of the District Collector, dated 2.3.1982. There is no dispute that as per plain reading of Section 32-A, appeals, revisions, reviews, reference of other than those arising out of orders passed under Section 8 or Sub-section (3) of Section 16, pending with any Revenue authority on such date had to abate.

20. As per proviso to Section 30 substituted vide Act 55 of 1982, it would appear that no appeal would lie be against orders passed under Sections 5 or 29 before final publication under Sub-section (1) of Section 11. In other words, such appeals can only be available after final publication under Sub-section (1) of Section 11.

21. Undisputedly, as per the provisions of Section 30 of the unamended Act, petitioners had statutory right of appeal against orders passed under clause (iii) of Sub-section (1) of Section 5 or Section 29 of the Act. It is well known that a right of appeal is not a matter of procedure, but is a substantive right. Such a right to approach a superior court accrues to the litigant and so exists on and from the date the lies commences. There is no doubt that vested right of appeal can be taken away by way of subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. Reference in this regard can be usefully made to a decision of the Apex court in the case of Garikapati Veeraya v. N. Subbiah Choudhary and Ors. : [1957]1SCR488 .

22. Admittedly, the virtue of new amendment of the ceiling law, right of appeal conferred on a landholder or his successor or transferees from such land holder with respect to the lands involved in a ceiling proceeding has not been taken away retrospectively or adversely. This is well known that pendency of an appeal maintains continuity of the original proceeding. In other words, appeals are nothing else but steps in a series of proceedings. Therefore, the moment District Collector passed orders for abatement of the appeals for a fresh proceeding, the revenue authorities had no option but to take steps to start fresh inquiry as per the requirements of the amended Section 5.

23. In the instant case, as noticed above, the draft statement was published on the basis of verification and information received by the Collector under the provisions of the old Act as well his findings under clause (iii) Sub-section (1) of Section 5 The requirement of clauses (c1), (c2) and (c3) of Section 10 in the draft was not complied with as would appear from the draft statement or even orders of the revenue authorities.

24. Mr. Verma, learned Counsel for the State, however, placed reliance on two different decisions of this Court in the case of M/s Motipur Sugar Factory Ltd. and Anr. v. The State of Bihar and Anr. 1978 BLJ 642 and Bishun Rai and Anr. v. The State of Bihar and Anr.. 1993 (2) BLJ 276 in support of his contention that even after abatement of the appeals, Collector was justified while publishing the draft statement on the basis of his findings which were previously recorded under sub-clause (iii) of Sub-section (1) of Section 5 or the verification made under the old Act.

In my view, the facts of the first case are completely different. It was a case where writ-petition was dismissed because of an alternative remedy of appeal being available at that stage against the order passed under clause (iii) of Sub-section (1) of Section 5. Therefore, in the instant case, deferent recital of such a judgment has no relevancy.

25. So far as the case of Bishun Rai and Anr. v. The State of Bihar and Ors. (supra), as relied upon by the State, there is no doubt that use of materials collected under the provisions of unamended Act in the draft statement published under Sub-section (1) of Section 10 of the amended Act was. approved. But a plain reading of the said judgment would reveal that effect of various changes under the new Act and the ratio laid down by the Full Bench in the case of Harendra Prasad Singh v. The State of Bihar and Anr. (supra) or the case of Chandrajot Kuer (supra), particularly paragraph 9 regarding prospect and effect of the Amended Act, was not noticed, that apart, a reference to paragraph 48 of the judgment would show that no grievance was raised by the petitioner that by reasons of the Amending Act, any substantial change was made for determination of the ceiling area of landholder nor any prejudice was shown by him against the draft publication under Section 10 (1). Therefore, in my view, the decision in the said case cannot be an authority for the purpose of these cases.

26. There is no doubt that from the counter-affidavit filed on behalf of the respondents and the order of the Additional Collector, passed under Section 5 (1) (iii) of the Act, it would appear that nearly about 1000 acres of land were disposed of by the petitioners landholders through different transactions within a short time. The stand of the respondents is that such transfers were made either benami or farzi with a view to defeat the object of the Act, But at the same time, this cannot be ignored that the manner in which the inquiry was carried out under Section 5 (1) (iii) of the Act is quite cryptic and unsatisfactory. Undisputedly, as alleged, most of the transferees in absence of proper notices, could not even participate at the time of inquiry as carried out under Section 5 (1) (iii) of the old Act. Though I am not required to discuss the case of individual petitioners transferees of effect of such transfers, but it would appear from the averments of the parties that some of the transferees have been claimed their right and possession either through Samarparnama or different nature of dedications which had taken place long back. Therefore, in absence of a proper inquiry findings of the Collector about such transactions as benami ox farzi cannot be sustained. Therefore, in this background be also, when the Collector passed orders for abatement of appeals, it was proper for the Additional Collector to hold a fresh inquiry after proper opportunity to the petitioners as per the provisions of Section 5 of the amended Act.

27. In the background of the facts noticed above, it has to be remembered that the petitioners being aggrieved by the findings of the Additional Collector under Section 5 (1) (iii) of the Act, had preferred their appeals before the Collector as per the provisions of Section 30 of the old Act. Therefore, if they had opportunity to press their appeals, naturally all the defects including merit and demerit regarding findings of the Additional Collector recorded under Section 5 (1) (iii) of the Act could have been pointed out and examined by the Collector.

28. Apart from the aforesaid defects in the proceedings, even Section 10 (1) of the Amended Act requires publication of draft statement of the basis of the description of the land transferred by the landholder in accordance with or contravention of the provisions of the Act, the substance of findings of the Collector under Section 5 (1) (iii) of the Act and the substance of the recommendation and order regarding exemption in terms of the amended clauses (c1), (c2) and (c3) of Sub-section (1) of Section 10 of the Act. It has already been noticed that the provisions as required under clauses (c1), (c2), and (c3) have been inserted by the new amended Act. In the background of the facts noticed above, unless and until, there was a fresh inquiry and findings of the Collector under Section 5 of the amended Act, no draft statement should have been published.

29. Therefore, having regard to the peculiar facts of these cases as well as relevant statutory requirements and the command of different provisions of the amended Act, as also having regard to the ratio laid down by the Full Bench in the cast of Harendra Prasad Singh v. The State of Bihar and Ors. (supra), and other cases noticed above, I feel inclined to hold that after the order of the District Collector, dated 23.1982, for abatement of appeals and a fresh decision in accordance with law, the Additional Collector had no option, but to take steps to decide and re-determine the proceeding afresh in accordance with the provisions of Section 5 and 10 of the Act.

30. In the result, the order of the Additional Collector dated 15.1.1995, the order of the Collector dated 17.6.1985 as well as the order of the Additional Member, Board of Revenue, dated 6.7.1985 as also the findings of the Additional Collector under Section 5 (1) (iii) of the Act regarding transfers of the land and the consequential notifications including under Section 11 (1) or 15 of the Act are hereby quashed. The Additional Collector, Ceiling, is directed to conduct a fresh inquiry under Section 5 (1) (iii) of the amended Act and publish a fresh draft statement as required under Section 10 (1) of the Act.

As these cases have been disposed of in terms of the learned Advocate, therefore, in order to avoid unnecessary delay, all the concerned parties are directed to appear in the Court of Additional Collector, Motihari, East Champaran (respondent No. 4) or the Additional Collector, Ceiling, as the case may be, on or before 3rd of February, 1997, so that a firm date can be fixed for hearing and inquiry, etc.

But until final disposal of the matter, all the parties to the proceeding are refrained for transferring or disposing of any land which was declared surplus by virtue of the impugned orders.

31. With the above observations/directions, all the writ applications are thus disposed of. But in the facts and circumstances of the case, there shall be no order as to costs.