Patna High Court
Umesh Prasad Sah & Anr vs The State Of Bihar & Ors on 26 June, 2018
Equivalent citations: AIRONLINE 2018 PAT 1294
Author: Ajay Kumar Tripathi
Bench: Ajay Kumar Tripathi, Nilu Agrawal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.439 of 2016
In
Civil Writ Jurisdiction Case No.2263 of 1993
======================================================
1. Umesh Prasad Sah, Son of Shri Mukh Lal Sah, resident of Village-
Jhangaroli, P.S.-Banmankhi (Janki Nagar), District-Purnea.
2. (i) Sudesh Prasad Sah @ Sudesh Sah, Son of Late Ganga Prasad Sah,
resident of Village-Jhangaroli, P.S.-Banmankhi (Janki Nagar), District-
Purnea.
.... .... Petitioners-Appellants
Versus
1. The State of Bihar.
2. The Additional Member, Board of Revenue, Bihar, Patna.
3. The Additional Collector, Purnea.
4. The Deputy Collector Land Reforms, Purnea.
5. (a) Mostt. Sugia Devi, Widow Late Bindeshwari Sah.
(b) Jagdish Sah.
(c) Dena Lal Sah.
(d) Ganesh Sah.
(e) Mahendra Pd. Sah.
(f) Jitendra Pd. Sah.
Respondent No. 5 (a) to (f) are resident of Village-Jhangar Toli, P.S.-
Banmankhi (Janki Nagar), District-Purnea.
.... .... Respondents-Respondents
6. Smt. Urmila Devi, Daughter of Late Ganga Prasad Sah and Wife of Shri
Jagdish Sah, resident of Village-Bishwari, P.S.-Goalpara, PLO. Goalpara,
District-Saharsa.
7. Smt. Manju Devi, Daughter of Late Ganga Prasad Sah and Wife of Shri
Deo Narayan Sah, resident of Village-Ram Nagar, P.S. and Post Office-
Kumarkhand, District-Madhepura.
.... .... Petitioners-Proforma Respondents
======================================================
Appearance :
For the Appellants : Mr. Sudhir Kumar, Advocate
Mr. Narendra Kumar, Advocate
For the Respondent State: Mr. Rajesh Kumar, AC to GP-3
For the Private Respondents : Mr. Ranjit Jha, Advocate
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CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI
and
HONOURABLE JUSTICE SMT. NILU AGRAWAL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI)
Date : 26-06-2018
Heard counsel for the appellants and counsel for the
private respondents.
Patna High Court LPA No.439 of 2016 dt.26-06-2018
2/9
Since the writ application of the present appellants was
dismissed by the learned single Judge vide his order dated
22.06.2015refusing to interfere with the order of the Additional Member, Board of Revenue, the present appeal has been preferred.
The short facts are that the private respondents, who are legal heirs of original respondent No.5, preferred a revision application before the Additional Member, Board of Revenue against the order of the Additional Collector, Purnea, dated 16.08.1990 passed in Ceiling Appeal no.43 of 1986-87, who, in turn, had affirmed the order dated 10.04.1986/17.04.1986 of the Deputy Collector Land Reforms passed in Case No.57 of 1985-86, granting respondent No.5 the right of preemption under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.
The origin of the dispute related to transfer of a land in favour of the present appellants through a registered sale deed, which was executed on 02.01.1985. The land in dispute measured 0.19 decimals and appertain to Khata Nos. 90, 184 and 214 of Mauza-Jahngar Toli, P.S. Banmankhi in the district of Purnea. The original private respondent No.5, who is dead now, filed an application under Section 16 (3) of the Act claiming preemption on the ground that he was the adjoining raiyat. The Deputy Collector Patna High Court LPA No.439 of 2016 dt.26-06-2018 3/9 Land Reforms, however, vide his orders dated 10.04.1986/17.04.1986, rejected the claim of preemption on the ground that the present appellants were the adjoining raiyat of the disputed land as they had acquired the land adjacent to the disputed land in the year 1976 itself. The Additional Collector, Purnea, in Ceiling Appeal No.43 of 1986-87 affirmed the order of the Deputy Collector Land Reforms. However, not being satisfied with the two decisions, the respondent No.5 preferred the Revision Case No. 563 of 1990 before the Additional Member, Board of Revenue. The revision application was allowed, therefore, writ application was filed. The writ Court, in turn, upheld the decision of the learned Additional Member, Board of Revenue, therefore, the present appeal against the order passed in the writ application.
The primary reason why the Additional Member, Board of Revenue, as well as the learned single Judge agreed as to the reason for setting aside the two orders passed by the subordinate authorities was that since the sale and purchase have been made after the year 1976 when consolidation proceeding had already been initiated by issuance of notification under Section 3. Therefore, as per the statutory provisions, especially, Section 5, such transfer, sale or purchase are invalid. The bar created under the law will govern the issue.
Patna High Court LPA No.439 of 2016 dt.26-06-2018 4/9 Learned counsel for the appellants, however, submits that there is a serious flaw in the reason assigned by the Additional Member, Board of Revenue, as well as the learned single Judge in upholding the decision of the Additional Member for the reason that they have not been able to appreciate the interplay of the various sections in the right perspective. Mere issuance of a notification under Section 3 would not create the bar, which has been contemplated under Section 5 of the Consolidation Act and something more was required to be done or happen before the bar will set in. In this regard, attention of the Court has been drawn to a Division Bench decision rendered in the case of Surendra Rai and Others vs. The State of Bihar and Others, reported in 2015(2) PLJR 774.
The Division Bench, while dealing with the similar kind of dispute, had this to say in the following paragraphs :
"14. We have gone through the order dated 30.09.2002 carefully. It is rather unfortunate that even after remand of the matter by the High Court mainly on the ground that the order passed by the 1 st respondent on earlier occasion was without any reasons; the 1 st respondent did not choose to mention any reason whatever. After referring the circumstances under which the matter was remanded to him, the 1st respondent has simply observed as under:
Patna High Court LPA No.439 of 2016 dt.26-06-2018 5/9 ^^vfHkys[k rFkk vfHkys[k esa miyC/k dkxtkrksa] izfrosnuksa] j{k lafpdk ,oa ewy vfHkys[k dk voyksdu fd;kA mi funs "kd pdcanh] oS"kkyh ds izfrosnu i=kad 13 fnukad 24-4-02 ls Li"V gS fd iz "uxr Hkwfe xzke efV;kjk Vksg] Fkkuk ua0 329] vapy ykyxat] ftyk oS "kkyh dk /kkjk 26¼d½ dk vf/klwpuk fuxZr ugha gqbZ gSA blls Li"V gS fd Hkwfe ds gLrkukUrj.k djus ds iwoZ vuqefr dh vko";drk FkhA vr% ewy vfHkys[k la0 vkj0 183@96 &97 esa fnukad 8-9-97@23-9-97 dks ikfjr vkns"k esa fdlh ifjorZu dh vko";drk ugha gSA foi{kh lqjsUnz jk; dk vkosnu vLohd`rA okn dh dkjZokbZ lekIr dh tkrh gSA**
15. He simply stated that the transfer of the land has taken place before issuance of any Notification under Section 26A of the Act. It was not even mentioned as to when the register under Section 10 were published or when the Notification under Section 26 A of the Act was issued.
16. It has already been mentioned that prohibitions contained under the Act are of two kinds. The first is the one under Section 4 consequent upon publication of Notification under Section 3. This, however, does not prohibit the transfer of land from one from person to another. It only prohibits the alteration of entries in the revenue records or institution of the suits. Voluntary or inter vivos transfers are not prohibited. Prohibition against such transfers, be it in the form of sale, mortgage, gift or exchange comes into play under Section 5; only with the publication of registers under Section 10.
Patna High Court LPA No.439 of 2016 dt.26-06-2018 6/9
17. Neither the 2nd respondent nor the 1 st respondent have stated as to when the publication under Section 10 of the Act has taken place in respect of the concerned village. An individual or authority which intends to invoke the provision under Section 5 must be able to establish the factum of publication of register under Section
10. In absence of that, the very occasion to invoke Section 5 does not arise.
18. The learned Single Judge did not refer to this crucial aspect and has dismissed the writ petition. It hardly needs any mention that the right and liberty of a citizen to arrange and deal with his own property, including the right to contract cannot be curtailed unless any prohibition is imposed under law and the facts pertaining to the relevant provisions are established, beyond any doubt. Such an exercise is totally lacking in the instant case. A gift deed, which is otherwise valid cannot be set aside on the basis of unverified facts.
19. We, therefore, allow this appeal and set aside the order dated 07.08.2012 passed by the learned Single Judge in CWJC No.5034 of 2003. As a result, the writ petition is allowed and order dated 30.09.2002 passed by the 1st respondent in Misc. Case No.89 of 1999 is set aside." The submission was further expanded on behalf of the learned counsel for the appellants that the basis of the Division Patna High Court LPA No.439 of 2016 dt.26-06-2018 7/9 Bench is that even though a notification under Section 3 of the Consolidation Act was issued sometime on 10.09.1975, but nothing more in terms of exercise was carried out thereafter by any of the authorities. To reinforce such a factual submission, a supplementary affidavit has been filed annexing Annexure-1, which is an information obtained under Right to Information Act and provided by the Deputy Director (Consolidation), Purnea, to the question whether any consolidation proceeding was initiated in the village concerned in the year 1975 and further anything decisive was done thereafter. The response of the Deputy Director is that even though a notification was initiated in the year 1975, but since on a something known as "Kosi Kranti Yojna", nothing came to be done in relation to the consolidation in that area all the proceedings were stopped and, therefore, the stage of Section 10(1) of the Consolidation Act was never reached. No publication was ever issued with regard to the list of the lands and, therefore, we are also of the opinion that the view taken by the Division Bench in the case of Surendra Rai (supra) will apply in the present case and the decisions rendered by the Additional Member, Board of Revenue and upheld by the learned single Judge in the writ application seems to be falling in the teeth of the said Patna High Court LPA No.439 of 2016 dt.26-06-2018 8/9 decision. There is no mechanical debarment merely on issuance of notification under Section 3.
Section 5 of the Consolidation Act shows up the situation under which the debarment will come into play. Section 5 reads as under : -
"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 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."
The submission of the learned counsel for the private respondent that the alienation, which had been done of the land in question, was not by the person, who had rightful title etc. and any way this was done to defeat the object and purpose of the Consolidation Act, cannot be appreciated in isolation because when the rigors of law are enforced against the private citizen, the applicability of the rigors must be established in the very first place.
Patna High Court LPA No.439 of 2016 dt.26-06-2018 9/9 In totality, therefore, the learned single Judge seems to have committed an error by dismissing the writ application and upholding the order of the Additional Member, Board of Revenue, dated 25.01.1993 passed in Revision Case No. 563 of 1990.
As a result, the impugned order dated 22.06.2015 passed in C.W.J.C. No. 2263 of 1993 is set aside. As a corollary, the orders passed by the Deputy Collector Land Reforms as well as of Additional Collector, Purnea, revives.
The appeal stands allowed. However, there shall be no order as to cost.
(Ajay Kumar Tripathi, J) ( Nilu Agrawal, J) Pawan/-
AFR/NAFR A.F.R. CAV DATE N/A Uploading Date 29.06.2018 Transmission Date N/A