Tarique Anis Khan v. State Of Bihar — 1993 DIGILAW 308 (PAT)

Judgment S. B. Sinha, J. 1. This application is directed against an order dated 15-3-1993 passed by the Collector, Sitamarhi (respondent No 2) in Land ceiling case No 7 of 1976, whereby the ceiling proceeding had been directed to be reopened in exercise of his power under Sec.45b of the Bihar Land reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act. 2. The fact of the matter lies in a very narrow compass. 3. A ceiling proceeding was initiated against Nasiruddin Hvder Khan father of the petitioners and others. Allegedly, the said landlord had 2.86 acres of Class IV lands. The petitioners have contended that 19 67 acres of land had already been sold prior to 9-9-1970. A report was submitted by the Anchal Adhikari that the petitioners were entitled to have 9 units of class IV lands. The land holder executed a registered deed of gift on 17-4-1963 in favour of his sons and his wife namely, Sajda in respect of 61 bighas, 4 kathas and 16 dhurs of lands He thereafter executed another deed of gift in the year 1963 in favour of his four daughters measuring 53 bighas 8 kathas and 9 dhurs. He again executed a deed of gift in the year 1963 in the name of Saida Khatoon and Habiba Khatoon widow of his brother, namely, late Salauddin Hyder Khan with respect to 65 bighas 8 kathas of land. Thus the land holder had already gifted a total area of 163.79 acres of land within the permissible period. 4. By an order dated 9-6-1981 the Additional Collector allowed four units to the land holder and dropped the proceedings. The said order dated 9-6-1981 as contained in Annexure 2 to the writ application was forwarded to the Collector, Sitamarhi, who being satisfied therewith directed disposal of the matter. However, a notice was issued to the petitioners as contained in Annexure 4 to the writ application and the petitioners had been directed to show casue by 30-9-1991 as to why the proceeding should not be reopened. The said notice had been issued on the following grounds :- (i) That the land holder had sold 4.75 acres of land after 9-9-1970 without obtaining prior permission of the Collector. (ii) The deeds of gifts were executed is favour of the sons and daughters in order to defeat the provisions of the Act. The said notice had been issued on the following grounds :- (i) That the land holder had sold 4.75 acres of land after 9-9-1970 without obtaining prior permission of the Collector. (ii) The deeds of gifts were executed is favour of the sons and daughters in order to defeat the provisions of the Act. (iii) The execution of will in respect of 65 bighas 3 kathas of land in favour of Habiba Khatoon and Saida Khatoon has been made in order to defeat the provisions of the Act. 5. The petitioners filed a writ petition in this Court which was permitted to be withdrawn by an order dated 16-12-1992 with the observation that the petitioners may raise all the contentions before the Collector of the district. 6. The petitioners thereafter filed a detailed show cause which is contained in Annexure 6 to the writ application 7. Learned counsel appearing on behalf of the petitioners has raised several contentions in support of this writ application Learned counsel submitted that from a perusal of the reports submitted by the Karamchari it would appear that all the petitioners were majors. He further submitted that the learned Additional Collector had also found that the deeds of gift executed before 19-4-1963 are valid. With regard to the relationship of Saida khatoon, learned counsel drew out attention to paragraph 4 of the reply to the counter affidavit which reads thus : - "that with regard to the statements made in paragraph No.8 of the counter affidavit filed on behalf of respondents Nos.1 to 3, it may be stated that the original landholder namely, Nasiruddin hyder Khan against whom the ceiling proceeding had been initiated, had executed a deed of gift on 17-4-1963 in favour of saida Khatoon who is not the stranger to the family of the landholder aforesaid- The said Saida Khatoon is widow sister of habiba Khatoon, the wife of late Salauddin Hyder Khan, the elder brother of the said Nasiruddin Khan, the landlord and as such under the provisions of the Mohamedan law, the Landlord aforesaid was/is entitled to execute a deed of gift in favour of said saida Khatoon. " So far as the transaction made after 9-9-1970 is concerned, it was submitted that even in relation thereto, no proceeding under Sec.5 (i) (iii) of the act had been initiated. 8 Mr. " So far as the transaction made after 9-9-1970 is concerned, it was submitted that even in relation thereto, no proceeding under Sec.5 (i) (iii) of the act had been initiated. 8 Mr. Hemendra Prasad Singh, learned counsel appearing on behalf of the State, however, has submitted that the respondent No.4 executed three deeds of gift : two in favour of his sons and daughter and one in fuvour of saida Khatoon. 9. Section 5 (5) of the said Act prior to its amendment provided that a land holder may execute a deed of gift. The Governor of Bihar in exercise of his power conferred under Article 2l3 (i) of the Constitution of India, promulgated an ordinance which cams into force on 27-4-1971 known as bihar Land (Fixation of Ceiling Area and Acquisition of Surplus Land) 4th amendment Ordinance, in terms whereof a second proviso was added to subsection 5 of the said Act. 10. The said ordinance was re-promulgated by reason of Ordinance no.61 of 1972 It has been contended that Sec.12 (2) of the Ordinance contained a saving clause. 11. In the meanwhile, Bihar Act No.1 of 1972 was enacted which was given a retrospective effect and retroactive operation with effect from 9-9-1970. Although the said Bihar Act No.1 of 1972 was given a retrospective effect from 9-9-1970, in terms of the saving clause contained in Section 13 (2) thereof, all transactions held prior to coming into force of the said Act were saved. 12. The learned counsel in support of this contention has relied upon a Division Bench decision of this Court in S K. Musan and Ors, V/s. The State of Bihar and others, reported in 1977 B B. C. J.54. 13. 12. The learned counsel in support of this contention has relied upon a Division Bench decision of this Court in S K. Musan and Ors, V/s. The State of Bihar and others, reported in 1977 B B. C. J.54. 13. Sub-section (5) of Sec.5 of the said Act as it then stood, reads thus ;- " (5) Any landholder, subject to the provisions of the tenancy law of the area may, if he has not already transferred, transfer, till the commencement of this Act and within I (one year) thereafter, by way of gift any land held by him as raiyat to his son, daughter, children of his son or daughter or to such other person or persons who would have inherited such land or would have been entitled to a share therein had the landholder died intestate in respect whereof, at midnight between the date of the commencement of this Act and the day just preceding such date so as not to exceed, together with any other land held by the donee, the area the donee can hold under Sec.5". 14. Sub-section (5i of Sec.5 of the Act thus was originally enacted, permitted a transfer by way of gift initially for a period of six months which was later on extended to one year by Bihar Act No. XVIII of 1962. Second proviso to the said Act was inserted by Bihar Ordinance No.113 of 1971. In terms of said provision a land-holder became entitled to transfer any land during the period of three months from the commencement of the said Ordinance i. e.27th December, 1971 by way of gift to his son, daughter, any children of his son or daughter and other person or persons who would have inherited such land or would have been entitle to a share therein; had the landholder died intestate in respect thereof at midnight between the 26th and 27th December, 1971. The said period was further extended by reason of Ordinance No.64 of 1972. 15. In S. K. Musan, V/s. State of Bihar, reported in 1971 BBCJ, 54 this aspect of the matter has been considered and it has been held therein as follows ;- "this proviso refers to the Bihar Land Reforms Fixation of Ceiling area and Acquisition of Surplus Land) (Fourth Amendment)Ordinance No.113 of 1971, Sec.3 of which also contained a similar provision. In S. K. Musan, V/s. State of Bihar, reported in 1971 BBCJ, 54 this aspect of the matter has been considered and it has been held therein as follows ;- "this proviso refers to the Bihar Land Reforms Fixation of Ceiling area and Acquisition of Surplus Land) (Fourth Amendment)Ordinance No.113 of 1971, Sec.3 of which also contained a similar provision. Bihar Ordinance No.113 of 1971 was published in the Bihar Gazette dated the 17th of December, 1971 i e it came into force from that date. The registered deed of gift in favour of the petitioners of this case were, as stated earlier, made on the 1st February, 1972, and were within three months from that date. In the circumstances, in view of the provisions of sub-sections (2) and (3) of Sec.13 of the amending Act of 1972 (Bihar Act of 1973), the registered deeds of gift dated the 1st of February, 1972, in favour of the petitioners, cannot be affected by the provisions of the said amending Act of 1972, and it was not open therefore, to the respondents to ignore these registered deeds of gift in favour of the petitioners of this case. " 16. However, as was noticed by this court in C. W. J. C. No.391 of 1993 that the said deeds of gift must be a valid one and must conform to the requirements of law and the ingredients of a deed of gift as has been pointed out in Sections 149 and 150 of Mullas principles of Mohamedan Law must exist It is also evident that the landholder was not entitled to donate any area of land as he wished. The same was required to be confined to the area which the land holder was entitled to retain under Sec.5 of the said Act, 17. However, sofar as Saida Khatoon is concerned, evidently, she does not come within the purview of the aforementioned Ordinance. However, the Mohammedan Law does not preclude execution of a deed of gift by the owner thereof in favour of any other person. However, sofar as Saida Khatoon is concerned, evidently, she does not come within the purview of the aforementioned Ordinance. However, the Mohammedan Law does not preclude execution of a deed of gift by the owner thereof in favour of any other person. It is also well known that although by reason of deed of gift, a minor became entitled to the properties donated in this favour but in terms of the definition of the family as contained in Sec.2 (ee) of the said Act, the Ceiling area has to be determined at the hands of the family as ou 9-9-1970 which includes the minor childern Thus the properties belonging to the minor children were also required to be clubbed with the properties of their parents for the purpose of determination of the Ceiling Area within the meaning of Section 4 of the Act. In this situation, thus, even a deed of gift in favour of the minor daughters may be valid, if they were still minors and if they were minor on 9-9-1970, their properties have to be clubbed with the properties of the land holder. 18. So far the lands transferred prior to 9-9-1970 as concerned, such transfers although made without obtaining prior permission of the Collector under the Act, would be deemed to have been retained by the landholder in terms of Sec.9 (2) of the Act, 19. Learned counsel appearing on behalf of the petitioner has, however, rightly pointed out that no sufficient reason has been asigned to dubts the correctness, or genuineness of the earlier report made by the Anchal adhikari as contained in Annexure 7 to the reply to she counter affidavit filed by the petitioners, He submitted that the subsequent report which has been relied upon by the Collector of the District is absurd on the face of it. There appears to be some subtance in the aforementioned, submission of learned counsel. 20. The Collector under the Act had not given any cogent reason to reject the earlier report of the karmachari as also the other materials placed before him by the petitioners with regard to their age. 21. In view of the fact that this aspect of the matter has not been properly considered by learned Collector, the order as contained in Annexure 1 to the writ application is set aside. 21. In view of the fact that this aspect of the matter has not been properly considered by learned Collector, the order as contained in Annexure 1 to the writ application is set aside. Learned Collector is hereby directed to apply his mind afresh and pass an order in accordance with law keeping in view the observations made hereinbefore. 22. It will be open to the parties to bring additional materials before the Collector of the district so as to enable him to consider as to whether he should exercise his limited jurisdiction under Sec.45 (B) of the Act or not and if so to what extent. This application is disposed of with the aforementioned observation.