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1978 DIGILAW 153 (PAT)

Shree Prakash Bahadur Pal v. State of Bihar

1978-07-14

K.B.N.SINGH, L.M.SHARMA

body1978
By Court In this writ petition the Petitioner has prayed for quashing the three orders of the revenue authorities, namely, the first dated 22.12.1976 passed by respondent no, 3., the second dated 18.7.1977 passed by respondent no. 2, and the third dated 15.3.1978 passed by respondent no.4, which have been filed as Annexures 7, 8 and 9 respectively, annulling the sale of 11, 21 acres of land by a registered sale deed dated 18.8.1970 in favour of the petitioner under section 5(1)(iii) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, hereinafter referred to as ‘the Ceiling Act’. 2. On the 8th of August, 1970, the petitioner purchased an area of 11.21 acres of land for a consideration of Rs. 34,000/- from Durga Shankar Singh to whom the land belonged, 9.71 acres of the land was situated in Bagha Anchal and 1.50 acres was situated in Bhainsalotan Anchal. Out of the consideration money, Rs. 22000/- was paid before the Sub-Register and possession was delivered to the petitioner. The petitioner thereafter applied for mutation of his name in the two Anchals in 1973. Copies of those applications have been filed as Annexures 2 and 4. The petitioners name in respect of the land in question was mutated by the orders, Copies of which have been filed as Annexure 3 and 5, and rent receipt were regularly issued in favour of the petitioner. The petitioner’s case is that much after thee transactions on 24.2.1975 a proceeding under the Ceiling Act, being Ceiling Case No. 3/7 of 1973/74 was started against the landholder Durga Shankar Singh and in the return which he filed the showed the aforesaid land as sold to the petitioner, who was in possession. The verification report of the local officer also showed that the land was in possession of the petitioner. Thereafter on 1.8.1976 a notice was issued by the Sub-divisional Officer (Respondent no. 3) under section 5(1)(iii) of the Ceiling Act, asking petitioner to show cause as to why the transfer in his favour in respect of aforesaid land be not annulled. The petitioner filed his show cause stating that he bona fide purchased the land, his name was mutated by the revenue authorities, he came in possession and rent receipts were being granted in his favour. He filed documents alongwith the show cause. The petitioner filed his show cause stating that he bona fide purchased the land, his name was mutated by the revenue authorities, he came in possession and rent receipts were being granted in his favour. He filed documents alongwith the show cause. Thereafter the Sub-divisional Officer, Bagha, called for a report from the Anchal Adhikari, who reported that the landholder Durga Shankar, Singh, who was in cultivating possession of the land, sold the same to the petitioner. The grievance of the petitioner is that without giving the petitioner copy of the report of the Anchal Adhikari, the transfer in favour of the petitioner has been arbitrarily annulled. The petitioner’s appeal before the Collector was dismissed by order dated 18.07.1977. The petitioners revision petition before the Board of Revenue was also dismissed by the Additional Member, Board of Revenue, by order dated 15th March 1978. 3. Mr. Janardan Sinha, learned counsel on behalf of the petitioner has submitted that without recording necessary finding as required under section 5(1)(iii) of the Ceiling Act, the revenue authorities have arbitrarily annulled the transfer in favour of the petitioner. Learned counsel has also submitted that a ceiling case was started against the landholder and the Order (Annexure 7 has been passed by the Sub-divisional Officer on the basis of the report of the Anchal Adhikari, which was never served on the petitioner and which 8tates that the petitioner is not in possession of the land hut his transferor is in possession. Learned counsel has further submitted that this will be against the mutation order and the rent receipts issued by the revenue authorities in respect of the lands situated in both the Anchals in favour of the petitioner. 4. Learned Counsel appearing on behalf of the State has urged that the landholder transferor Durga Shanker Singh having land in excess of the ceiling area, the transfer obviously was with a view to defeat the object of the Ceiling Act, and, therefore, no interference it called for by this court. 5. Having heard learned counsel for the parties. we are satisfied that the orders of the revenue authorities annulling the transfer cannot be maintained and have to be quashed, The only material relied on by the Sub-divisional Officer in the order annulling the transfer is the report of the Anchal Adhikari that the land is in cultivating possession of the land holder. we are satisfied that the orders of the revenue authorities annulling the transfer cannot be maintained and have to be quashed, The only material relied on by the Sub-divisional Officer in the order annulling the transfer is the report of the Anchal Adhikari that the land is in cultivating possession of the land holder. The report of the Anchal Adhikari has not been served on the petitioner transferee. The Collector and the Additional member, Board of Revenue have also relied on the said report of the Anchal Adhikari and the documents in the shape of evidence lied by the petitioner were not taken into account. The case of the petitioner is fully covered by a Bench decision of this court in the case of Bachchan Singh vs. The S.D.O. & others, wherein under similar circumstances the order of annulment of a transfer was set aside. The following observation from that decision may usefully be reproduced. “The proper procedure should have been to permit the State as also the petitioner to lead such evidence, either by way of affidavit or oral evidence, as they might have chosen to lead in support of their case on the question of possession and other relevant matters. This not having been done we do not think that the finding of possessions sustainable in law. The question of possession is so vital and important and the findings in relation thereto being erroneous in law, that, the impugned orders holding the transfers to be covered by section 5(1)(iii) of the Act, have to be set aside” The observation of the Revenue authorities that transfer or any land in excess of ceiling area, as it will be advantageous to a landholder by itself is good enough for annulling a transfer, in our opinion, is completely erroneous. The provisions of sub-clause (iii) of Sub section (1) of section 5 of the Ceiling Act, do not say so They only authorise the Collector to examine certain transfer and annual it if he is satisfied that the transfer has been made with the object of defeating or in contravention of the provisions of this Act, or for retaining, benami or farzi, land in excess of the ceiling area on the date of the transfer. It does not lay down that in every case where a landholder owns excess land and makes transfer it must be annulled. It does not lay down that in every case where a landholder owns excess land and makes transfer it must be annulled. It does not affect a bona fide transfer made by a registered instrument for adequate consideration. A similar view was taken by a Bench of this court in the case of Mahabir Prasad & Others. Vs. State of Bihar another wherein it was abserved follows : "A mere reading of the section which is clear and unambiguous leads to the following conclusions : (a) That transfers made prior to 22nd day of October 1959 cannot be annulled under this provision. It is only transfers made after that date that are capable of annulment under aforesaid provision. (b) Annulment is possible only on existence on certain specified circumstance. They are (i) where the transfer is benami or farzi; (ii) Where the transfer has been made with the intention of defeating the provision of the act. Such intention of defeating the provision of the Act, must be present on the date of transfer. (iii) Where the transfer is such as defeats the purposes of the act. It is only on existence of the conditions aforesaid that annulment is permissible under the Act". In the instance case, as already mentioned the transfer is by a registered instrument for consideration, the name of the transferee has been mutated and rent receipts are issued in his favour. This aspect of the matter has not been taken into account by any of the revenue authorities. 6. In our opinion, the impugned order as contained in Annexures 7, 8 and 9, annulling the transfer made in favour of the transferee petitioner should be quashed and the ease remanded to the Sub-divisional Officer for redetermination of the question whether the transfer in favour of the petitioner was fit to be annulled in the light of the observation made above. In the circumstances, there will be no order al to costs. Application allowed.