Patna High Court - Orders
Panna Devi vs The State Of Bihar & Ors on 11 May, 2010
Bench: Mihir Kumar Jha, Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.375 of 2010
*****
PANNA DEVI W/O VINDHYACHAL OJHA R/O VILL.- AMARPUR, P.S.-
DHANSOI, DISTT.- BUXAR.
.... .... Petitioner/Appellant
Versus
1. THE STATE OF BIHAR THROUGH THE SECRETARY REVENUE AND
LAND REFORMS DEPTT., GOVT. OF BIHAR, NEW SECRETARIAT,
PATNA.
2. THE PRINCIPAL SECRETARY, REVENUE AND LAND REFORMS DEPTT.
GOVT. OF BIHAR, NEW SECRETARIAT, PATNA.
3. THE COLLECTOR, BUXAR.
4. THE DIRECTOR, CONSOLIDATION, BIHAR, PATNA.
5. THE CONSOLIDATION OFFICER RAJPUR, BUXAR.
6. PRAMOD KUMAR SINGH S/O PARAS NATH SINGH R/O VILL.-
AMARPUR, P.S.- DHANSOI, DISTT.- BUXAR.
.... .... Respondents/Respondents
-----------
For the Appellant : Mr. Sanjay Kumar Verma, Advocate
Mr. Shashi Shekhar Tiwari, Advocate
For the Respondents 1 to 5: Mr. Md. Anis Akhtar, A.C. to AAG-X
For the Respondent No.6 : Mr. Kamal Nayan Choubey, Senior Advocate
Mr. Ambuj Nayan Choubey, Advocate
Mr. Siddharth Harsh, Advocate
Miss. Ritu Priyadarshini, Advocate
-------------
PRESENT - THE HON'BLE THE CHIEF JUSTICE
THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA
THE HON'BLE MR. JUSTICE JYOTI SARAN
ORDER
(11.05.2010) As per Dipak Misra, C.J. -
Expressing doubt as regards the correctness of the decision in Ram Raji Sharma & Anr. V. The State of Bihar & Ors., 2007(4) PLJR 449 wherein a Division Bench has interpreted Section 32 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (for brevity „the Act‟), the Division Bench thought it apposite to 2 refer it to a larger Bench for reconsideration of the law laid down therein and, accordingly, the matter has been placed before us.
2. Sans unnecessary details, the facts which are requisite to be exposited for dealing with the controversy in issue which relates to correctness of the decision rendered in Ram Raji Sharma & Anr. (supra) are that the writ petitioner purchased land admeasuring 62-½ decimals of land appertaining to Khata No.180, Plot No.766 in Village- Amarpur, District-Buxar through two sale-deeds executed by the grandfather of the respondent no.6. The 6th respondent to the writ petition after 23 years of the execution of the sale-deed filed an application before the Collector, Buxar praying therein for declaring the sale-deed dated 1.8.1983 void as the said transaction had taken place without the permission of the competent authority under the Act. The appellant-petitioner filed an objection to the said application contending, inter alia, that the sale-deeds were genuine and valid. The Collector, as set forth, without noticing the vendor passed an order declaring the sale-deeds void and imposed a penalty of Rs.250/-. It was urged before the Collector that the sale-deeds could not have been declared void as the consolidation proceedings were over on 30th March, 1981 and further the transaction was not done to frustrate the purpose of the Act. The Collector passed the said order under Section 32 of the Act. Various other aspects were pleaded as to how the sale- deeds could not be declared void. The Collector negatived the 3 contentions and, by order dated 22.7.2009 passed in Misc. Case No.56/2006, declared the sale-deeds void and imposed penalty of Rs.250/-.
3. Being dissatisfied with the said order, the petitioner preferred C.W.J.C. No. 14710 of 2009. The learned single Judge by order dated 6.11.2009 referred to the order dated 27.10.2009 passed in C.W.J.C. No. 14038 of 2009 and declined to interfere. The learned counsel for the parties have brought to our notice the order passed in C.W.J.C. No. 14038 of 2009 on the basis of which the present order has been passed. The learned single Judge, as is manifest from the order, after referring to the provisions contained in Section 32 of the Act and placing reliance on the decision rendered in Ram Prakash Mahto v. State of Bihar and Others, 1989 BLJ 100, came to hold that the order passed by the Collector was impregnable and he was right in declaring the sale-deeds void and imposing the fine.
4. We have heard Mr. Sanjay Kumar Verma, learned counsel for the appellant, Mr. Md. Anis Akhtar, learned counsel for the State and Mr. Kamal Nayan Choubey, learned senior counsel along with Mr. Ambuj Nayan Choubey for the respondent no.6.
5. The issue that arises for consideration before us is whether the decision rendered in Ram Raji Sharma & Anr. (supra) lays down the law correctly. The Act was brought into force to provide for the consolidation of holdings and prevention of fragmentation of land. The 4 dictionary clause in sub-section (3) of Section 2 defines "Consolidation". It reads as follows: -
(3) "Consolidation" includes re-arrangement of parcels of land comprised in a holding or in difference holdings for the purpose of rendering such holdings more compact.
[Explanation.- for the purpose of this clause, holding shall not include the following.-
(i) land which was orchard or grove in the agricultural year immediately preceding the year in which the notification under section 3 was issued;
(ii) land subject to fluvial action and intensive soil erosion;
(iii) such compact areas as are normally subject to prolonged water logging;
(iv) such other areas as the Director of Consolidation may declare to be unsuitable for the purpose of consolidation;] Section (3a) defines "Chak" to mean every parcel of land allotted to a raiyat or the under-raiyat on consolidation.
Section (3b) defines "rectangulation" which means the process of dividing the area of a unit into rectangles or part of rectangles of convenient sizes with a view to regulate the allotment of Chak during consolidation operation.
5
6. In this context, it is also appropriate to refer to the definition of the term "Fragment" which has been defined in Section 2(5). It reads as follows: -
"[(5) "Fragment" means a piece of land being in area less than-
(a) one acre of land irrigated by flow irrigation work or tube well or lift irrigation;
(b) two acres of unirrigated land;
(c) four acres of hilly or sandy land;
Provided that no piece of land shall be deemed to be a fragment by reason of any diminution in its area by diluvion;]"
Section 3 which occurs in Chapter-II deals with declaration by the State Government of its intention to make scheme for consolidation of holdings.
7. The purpose of referring to the aforesaid provisions is only to appreciate that the basic object of the Act is to effect consolidation of holding for the purpose of better cultivation of land and effectuate the scheme of the Act.
8. Section 4 deals with the effect of notification under Section 3(1) of the Act. Section 5 that provides for no transfer without sanction, being relevant for our purpose, is reproduced below: -
"[5. No transfer without sanction.- (1) After the date of publication of preparation of register of lands and statement of principles under sub-section (1) of section 6 10 no person shall transfer any land in the notified area by way of sale, gift, exchange or partition without the previous sanction of the Consolidation Officer and if the sanction is granted, such transfer or partition, as the case may be, shall be, subject to the rights and liabilities attached to the land under the scheme of consolidation prepared with respect to that area.] [(2) The provision of sub-section (1) shall take effect from the date of the notification under sub-section (1) of section 3 has been issued.]"
9. Section 6 deals with how an application for seeking permission for transfer or partition under Section (5) of the Act would be dealt with. It is procedural in nature.
10. Section 32, on which the learned counsel for the appellant has built the edifice (as he has submitted to place an interpretation to which we shall later on advert to), is as follows: -
"32. Transfer of lands prohibited.- The transfer of any land or fragment contrary to the provisions of this Act shall be void; and the owner of any land, so transferred shall be liable to pay such fine, not exceeding two hundred and fifty rupees, as the Collector of the district may, subject to the general orders of the State Government, direct."
11. In Ravindra Thakur v. The Collector, Muzaffarpur & Anr., 1995 (2) PLJR 710, it has been held as follows: - 7
"9. Counsel for the petitioner contended that the application filed by Respondent No.2 before the Collector was barred by limitation. I do not find any merit in this contention inasmuch as any document which is void is not only void ab inito but non-est in the eye of law. It is not required to be set aside or annulled. Section 32 is intended to act as a deterrent against transfers in contravention of the provisions. It provides for imposition of a token fine upto Rs.250/-. So far as nature and effect of the transfer is concerned, the provisions of Section 5 read with Section 32 render them void. Only a declaration to that effect is to be made for the purpose of imposition of fine. There is no question of law of limitation coming into play."
12. The aforesaid two provisions came to be interpreted by a learned single Judge in Sitaram Singh v. State of Bihar, 1995(2) PLJR 750 wherein the learned single Judge has held as follows: -
"4. On general principle there can be no doubt that any document which is rendered void by law is void ab initio and the same is not required to be invalidated by any order of Court, only a declaration to that effect is to be made. Of course, such a declaration can be made only after a finding is recorded that the transfer was made in contravention of the substantive provision of Section 5. The question for consideration is whether the bar of Section 5 was applicable to the impugned transfer or not."8
13. In Bhaiya Ram Singh and others v. The Director of Consolidation, Bihar Patna and others, 1987 PLJR 120, a Division Bench was dealing with Section 5 before it was amended by Act 27 of 1975. The contention that was raised before the Bench was that even though the words "sale, gift and exchange" were not inserted in the Section prior to its amendment, yet the word "transfer" included in its ambit the words "sale, gift and exchange" which are several modes of transfer. In the said case, a gift deed was executed without taking any permission of the Consolidation authorities. The Consolidation Officer accepted the deed of gift and ordered for correction of the entries. The same was assailed in appeal and the Deputy Director, Consolidation held that the said deed of gift which was executed without the permission of the Consolidation Officer was void ab initio, while holding, inter alia, that the term "transfer" would include in its ambit gift or exchange. The Division Bench expressed the view that the gift was a transfer within the scope of Section 5 prior to its amendment of 1975 and, hence, it was necessary to obtain sanction before executing any gift. After so holding, it was expressed thus: -
"6. ..... After the consolidation proceeding started sanction was necessary for executing a deed of gift also. The deed of gift dated 24.12.1974 executed by Sheodayal Singh in favour of his two daughters, respondents 4 and 5 without sanction were illegal and void. Similarly the deed of gift executed on 13.1.1975 9 in favour of respondent no.6 it was also without sanction was also void. .....""
14. In Gorakh Nath Dube v. Hari Narain Singh & Others, AIR 1973 SC 2451, while dealing with the jurisdiction of the civil court and the jurisdiction of the consolidation authorities under the U.P.Consolidation of Holdings Act, their Lordships in paragraph 5 expressed the view as follows: -
5. There is no decision of this Court directly on the question whether a suit for cancellation of a sale deed, which was pending on the date of the notification under Section 4 of the Act, abates under Section 5 (2) of the Act. A decision of a Division Bench of the Allahabad High Court, in Jagarnath Shukla v. Sita Ram Pande & ors., 1969 All LJ 768 directly dealing with the question before us, was then cited before us. Here, we find a fairly comprehensive discussion of the relevant authorities of the Allahabad High Court the preponderating weight of which is cast in favour of the view that questions relating to the validity of sale deeds, gift deeds, and wills could be gone into in proceedings before the, consolidation authorities, because such questions naturally and necessarily arose and had to be decided in the course of adjudications on rights or interests in land which are the subject matter of consolidation proceedings. We think that a distinction can be made between two cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to 10 be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it. In the case before us, the plaintiff's claim is that the sale of his half share by his uncle was invalid, inoperative, and void, such a claim could be adjudicated upon by consolidation courts. We find ourselves in agreement with the view expressed by the Division Bench of the Allahabad High Court in Jagarnath Shukla's case, 1969 All LJ 768 (supra), that it is the substance of the claim and not its form which is decisive."
15. A perusal of the decision rendered in Gorakh Nath Dube (supra) makes it clear as crystal that there is a distinction in the case or document wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid.
16. We have referred to the said decisions only to highlight that a transfer made or effected without prior sanction of the statutory authority is void ab initio and there cannot be the degree of void as is sought to be conveyed by the learned counsel for the appellant. The language employed in Section 32 is quite clear and there is no necessity to stretch the same. It is well settled principle of law that when the 11 language is clear and unambiguous, it is the duty of the Court to give meaning to the same. In this context, we may refer with profit to the decision in R. v. Paddington Valuation Officer, ex parte Peachey Property Corpn. Ltd., (1965) 2 All ER 836 : (1966) 1 QB 380 :
(1965) 3 WLR 426 (CA), where the valuation list was challenged on the ground that the same was void altogether. Lord Denning, M.R. laid down the law as follows:-
"It is necessary to distinguish between two kinds of invalidity. The one kind is where the invalidity is so grave that the list is a nullity altogether. In which case there is no need for an order to quash it. It is automatically null and void without more ado. The other kind is when the invalidity does not make the list void altogether, but only voidable. In that case it stands unless and until it is set aside. ..."
17. The submission of the learned counsel for the appellant is that Section 32, if purposefully interpreted, would convey that if the fine is paid, the defect in transfer gets cured. In essence, the proponement of the learned counsel for the appellant is that even if no sanction is obtained under Section 5 of the Act but if fine is paid as imposed it could obliterate the defect and it would be treated as a case as if the sanction has been granted which would be subject to the rights and liability attracted to the land under the scheme of the consolidation prepared with respect to that area. In our considered opinion, the interpretation that is sought to be placed by the learned counsel for the appellant is totally unacceptable. A conjoint reading of Section 5 and Section 32 do only convey what would be the effect when sanction is 12 granted by the consolidation officer for transfer or partition and when no sanction is accorded. It is worth noting that an order or sanction under Section 5 is not granted in a mechanical manner. There is a procedure prescribed under Section 6. It is also subject to appeal under sub-section (4) of Section 6. Thus, the statute as a definitive scheme postulates in an unequivocal manner that the transfer of any land contrary to the provisions of the Act shall be void. Once the statute stipulates that it is void, it should be treated as void ab initio and non- est in the eye of law. What is incorporated in the said Section 32 is that apart from the transfer being void, the owner of any land so transferred shall also be liable to pay such fine not exceeding two hundred and fifty rupees. That is the deterrent measure.
18. In the case at hand, when the statute prohibits such transaction and lays a postulate that it would be void, it has to be construed that it is null and void from the very beginning. If a transaction is wholly without authority, needless to say, it is ab initio void.
19. In Ram Raji Sharma & Anr. (supra), the Division Bench in paragraphs 5 and 8 has held thus:-
"5. The writ court held that since the subject transfer was without permission, which required permission, and since any transfer without permission is void in view of Section 32 of the Act, the transfer was void. Section 32 of the Act provides that transfer of any land or a fragment thereof contrary to the provisions of the Act 13 shall be void provided the owner of any land, so transferred, shall be liable to pay such fine, not exceeding two hundred fifty rupees as the Collector of the District may, subject to the general orders of the State Government, direct. Section 32, therefore, provides that a transfer made in contravention of Section 5 of the Act will be void and the owner of the land shall be liable to pay a fine not exceeding two hundred fifty rupees. Section 32, therefore, makes it abundantly clear that the transfer declared to be void thereby is in relation to consolidation proceedings. Section 32 is in aid of completion of consolidation proceedings. In such view of the matter, transfer of any land contrary to Section 5 of the Act would make the same void in so far as consolidation proceedings are concerned and not inter se the person who has transferred the same and his transferee. In other words, such a transfer if effected pursuant to the provisions contained in the Transfer of Property Act read with Registration Act the same would though bind the parties thereto but would not bind the Consolidation Authority. In addition thereto the Consolidation Authority has been empowered to levy fine upon the person who has effected the transfer in question."
xxxx xxxx xxxx "8. The judgment of a learned single Judge of this court rendered in the case of Sitaram Singh vs. State of Bihar: reported in 1995(2) PLJR 750, upon which the writ court relied while holding the transaction void ab initio, to our mind did not take note of the object and purpose of the Consolidation Act. The principal object 14 of the Act was to provide for consolidation of holdings and prevention of fragmentation. It did not intend to take away the right of a landholder to transfer his land to another. The right to transfer has been preserved in Section 5 of the Act, but with prior approval. If approval is given the land will continue to have the same rights and liabilities attached to the land under the scheme. The object was to ensure that. If that is the true intention then the transfer is void to ensure the same. The conclusion would be that the transaction is void in so far as consolidation proceedings are concerned, but not inter se the parties to the transaction."
20. As is evincible from the decision, the Division Bench has held that it would be void with regard to the consolidation proceedings and not transaction inter se parties. The said conclusion does not take note of the provision contained in Section 39 of the Act which clearly provides that the provisions of the Act shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force and, that apart, the Bench has attached a degree to the term „void‟ which is not permissible in law. As has been discussed hereinabove, the language of the statute is absolutely clear and as the term „void‟ has been used, no transaction can take place without prior sanction. The command in the statute is imperative and categorical. Nothing can be read into it to mean that it is qua consolidation proceeding under the scheme and would bind the 15 parties thereto. The same would be totally in transgression to the language employed and would defeat the object of the Act and runs contrary to the intendment of the Legislature.
21. In view of our preceding analysis, we conclude and hold the law laid down in Ram Raji Sharma & Anr. (supra) is not correct and, accordingly, the same is overruled. The appeal be placed before the appropriate Division Bench.
(Dipak Misra, C.J.) (Mihir Kumar Jha, J.) (Jyoti Saran, J.) Patna High Court Dated, the 11th May, 2010.
A.F.R Pawan.