Sib Narain Roy v. State Of Bihar — 1993 DIGILAW 345 (PAT)

Judgment S. B. Sinha, J. 1. In this application, petitioner has prayed for issuance of a writ of certiorari for quashing the order dated 121-10-1992 passed by the Additional Member, Board of Revenue (Respondent No.2) in revision Case Nos.33 and 33 of 1988, the order dated 25-1-1988. passed by the Collector, Purnea (Respondent No.3) in Ceilling appeal No.313/84-85 and 315/1984-85 and also order dated 30-4-1984 and 30-7-1984 passed by the Additional Collector (Ceilling), Purnea in Case No.269/75-76 as contained in Annexure-6, 3 and I respactively as a also the notification under Sec.11 (1) of the Bihar Land Reforms (Fixation of ceilling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be referred as the said Act) and the notification dated 27-2-1988 issued under section 15 (I) thereof. 2. The fact of the matter lies in a very narrow compass. 3. Petitioner is heir of one Bankhandi Roy. The geneological table of family of the petitioner is as follows : late Satya-Narain Roy. Late Bankhandi Roy. Shiv Narain Ray. (petitioner)Late jageshwari Devi Kunjan Misbra, ram Nr. Roy. Shakuntala Devi. Gopal Roy krishna Kr. Roy (married krishna Devi (married)Kishori Kumari (unmarried on appointed day)It may be mentioned here that a proceeding in the year 1973 was initiated in respect of the lands held by Bankhandi Roy. However, according to the petitioner there had been a partition amongst the co-sharers. Subsequently, the proceeding was bifurcated into three proceedings being 269/74, 75/76 and 48/73-74. A draft publication in terms of Sec.10 (2) of the said Act was made in terms whereof only three units were given to the family of the petitioner treating all the lands of petitioner as Class I land. An objection was filed by the petitioner under Sec.10 (3) of the said Act. Further, the said proceeding abated and a fresh draft publication under Sec.10 (2) of the said Act was made on 6-7-1983. and an objection thereto was filed by the petitioner under Sec.10 (3) of the said Act on 30-7-1988 raising therein various contentions which have been enumerated in paragraph 7 of the writ application. By an order dated 30-4-1984 which was modified by order dated 30-7-1984, respondent No.4 acting as Collector under the said act disallowed the claim of the petitioner with regard to the claim of separate unit for kishori Devi as also the deity. By an order dated 30-4-1984 which was modified by order dated 30-7-1984, respondent No.4 acting as Collector under the said act disallowed the claim of the petitioner with regard to the claim of separate unit for kishori Devi as also the deity. He ruther disallowed the claim made by the petitioner with regard to the transfer made in favour of respondent No.5. He also did not fully accept the objection of the petitioner with regard to the classification of lands. The appeal and revision preferred by the petitioner against the said order have been dismissed. 4. Mr. Madhav Roy, learned counsel appearing on behalf of the petitioner has raised a number of contentions in support of this application. Learned counsel firstly submitted that Kishori Devi being unmarried adult daughter on 9-9-1970 was entitled to allotment of one unit. Learned counsel next contended that in view of the fact that a deed of dedication was executed as far back as on 30th November, 1919, in terms whereof the proper ties were dedicated in favour of the two deities Sri Laxmi Narainjee and Shri radha Krishna Jee, who are both added as respondent No.6, were also entitled to grant of separate units. 5. It was also submitted that the transfer of the land made by the landholder in in favour of respondent No.5 by reason of a registered deed of sale dated 3-12-1970 should have been excluded from the purview of the notifications under Sections 11 (1) and 15 (1) of the Act. It was further submitted that the daughter would be entitled to separate units. The learned counsel in support of the said contention has strongly relied upon a Special bench decision of this court in the case of State of Bihar V/s. Sri K. M. Zuberi and others (1986 ALJR 67) and submitted that the said Special Bench decision would prevail upon the earlier Full Bench Decision. Learned counsel in this connection has also relied upon Satrudhan Sahani v. The State of Bihar and others. (1986 PLJR 769), the Commissioner of Income tax, Bihar V/s. Sheo Kumari Devi, (1986 PLJR 743) and Akhauri Krishna Kumar sinha V/s. Mundrika Prasad (1986 PLJR 1119 ). Learned counsel in this connection has also relied upon Satrudhan Sahani v. The State of Bihar and others. (1986 PLJR 769), the Commissioner of Income tax, Bihar V/s. Sheo Kumari Devi, (1986 PLJR 743) and Akhauri Krishna Kumar sinha V/s. Mundrika Prasad (1986 PLJR 1119 ). Learned counsel further submitted that as the provisions for obtaining permission in terms of Sec.5 (1) (iii) of the said Act was inserted only in the year 1973 and the same was given retrospective effect and restrospective operation wef 9-9-1970 the said amending Act the transfers already made have been invalidated. Sec.5 (1) (iii) of the said Act cannot be said to have any application in relation to the transfer made on or after 9-9-70 but before coming into force of the Act in 1973. Learned counsel in support of his -contention has relied upon a decision in the case of Smt Kusum Kumari Devi v Custodian of Evacuee Property, bihar and. Another (AIR 1954 Patna 238), Ningappa Balappa and others V/s. Abashkhan Couskhan (AIR 1956 Bombay 345 ). 6. It was further submitted that mother of respondent No.5 is sister of the petitioner, i e. grand-son of Bankhandi Roy and the said gift was permissible as Respondent No.5s mother was entitled to a share. It was, therefore, submitted that without annulling the said transfer in terms of section 5 (1) (iii) of the said Act, the transfer made in favour of respondent no.5 could not have been ignored. 7. It was further submitted that the classification of lands has also not been done properly. It was submitted that some lands were classified as Class I and II land without permitting the petitioner to lead any evidence. It was submitted that the appellate court has committed an apparent illegality that the onus of proof relating to classification of land rests upon the landholder. 8. It was also submitted that it was brought to the notice of the member, Board of Revenue about the voluntary surrender by all the three brothers to thr extent of 158 acres of land but the said matter has not been considered by the Member, Board of Revenue. 9. Learned counsel submitted that the classification of the land must conform to the requirements of law as contained in Sec.4 of the said act and in support of his contention relied upon a decision in the case of Md. 9. Learned counsel submitted that the classification of the land must conform to the requirements of law as contained in Sec.4 of the said act and in support of his contention relied upon a decision in the case of Md. Fakhruddin V/s. The State of Bihar and others, ( 1976 BBCJ 536 ). 10. It was further contended that the petitioner should have been given an opportunity to exercise the option after the order was passed by the member, Board of Revenue and before issuance of notification under Section 15 (i) of the said Act but as the same was not done, an illegality has been committed in relation thereto. Learned counsel in support of his contention relied upon a decision in the case of Lallan Prasad Singh and others, V/s. The State of Bihar and others, (1992 (2) PLJRJ 631 ). 11. Learned counsel further submitted that there has been no proper verification inasmuch as from the draft Publication itself it would appear that even the land whether on the Military Aerodram was situated has also been included, therein. According to learned counsel had any verification in terms of Rules 8 and 10 of the Bihar Land Reforms (Fixation of Ceiling area and Acquisition of Surplus Land Rules, 1963 (hereinafter referred to as the Rules) been made, such obvious mistakes could not have been committed. It was submitted that the concerned authorities were duty bound to verify the statements made by the land-holder in his return strictly in terms of Rules 8 and 10 of the Rules. Mr. Roy in this connection has relied upon a decision in the case of ganesh Bharathi V/s. She State of Bihar and others, 1977 B8cj 384 ). 12. Mr. Raghib Ahsan Learned Standing Counsel appearing on behalf of the State, however, submitted that no unit could have been allotted to kishori Devi as she was minor on 9-9-1970. He further submitted that even assuming that she was major on that date she was not entitled to separate unit as unmarried daughter is not a member of Hindu Joint Coparcenary mitakshara family and thus she has no right, title and interest in the property of the family during the life time of her father. 13. With regard to the second contention of Mr. Roy, Mr. 13. With regard to the second contention of Mr. Roy, Mr. Ahsan submitted that a separate order in a proceeding under Sec.29 of the said act was passed by the State Government but the said order has not been challenged by the petitioner and in that view of the matter, the petitioner is estopped and precluded fron raising a contention that the deities would also be entitled to separate units. It was further submitted that in the event it is held by this Court that the deities are entitled to a separate unit, they being said to be in possession of 342.75 acres of land, a separate proceeding should be directed to be initiated against that deities. It was further submitted that the respondents have arrived at concurrent finding of fact that Arpannama was not acted upon and as such the question of giving effect to the said purported Arpanama did not arise. Reliance has been placed in this connection on a decision in the case of shri Lakshmi Narain and others V/s. State of Bihar and others (1978 B. B. C. J.489) and Chandrajot Kuer V/s. State of Bihar and others ( 1983 BBCJ 197 ). 14. With regard to the third contention Mr. Roy learned counsel submitted that prior to coming into force of the Bihar Act No.1 of 1973 several ordinances were promulgated, the first in the series of being Ordinance no.7 of 1990 which has been followed by successive Ordinances and the last of the series being Ordinance No.54 of 1972. In terms of the provisions of Bihar Act No.1 of 1973 the aforementioned Ordinance No.54 of 1972 was repealed. 15. So far as the objection of the land holder relating to the classification of the land is concerned it has been submitted that from the impugned order, it appears that the objection of the landholder in this regard have been accepted and thus, the petitioner cannot be said to have any grievance whatsoever. 16. 15. So far as the objection of the land holder relating to the classification of the land is concerned it has been submitted that from the impugned order, it appears that the objection of the landholder in this regard have been accepted and thus, the petitioner cannot be said to have any grievance whatsoever. 16. Learned counsel next contended that the petitioner has been permitted to exercise his option at the stage of Sec.10 (3) of the said Act has further been permitted to renew his option but in the event this Court comes to the conclusion that the other findings arrived at by the Collector under the Act, the appellate authority and revisional authority are not correct, the petitioner may be permitted to exercise fresh option. He, however, submitted that in law the landholder is entitled to exercise his option only once that is within the period prescribed for filing objection at the state of Sec.10 (3)of the said Act. 17. Mr. Madhav Roy in reply submitted that so far as the order under section 29 of the said Act is concerned, an appeal against the said order was filed and the appellate order is contained in Annexure-3/a to the writ application. With regard to the classification of land it has been submitted that it is not correct to contend that all the objections of the landholder in relation thereto has been accepted. According to the learned counsel no verification, in fact, has been made. 18. It is now well know that that the ceiling units has to be determined with reference to a family as defined in Sec.2 (ee) of the said Act which means landholder, his wife and their minor children. It is also well known that while determining the ceiling area joint and separate properties belonging to each member of the family have to be taken into account. In this connection, a finding of fact has been arrived at that Kishori devi was minor. In terms of the definition of the minor children as contained in Sec.2 (ee) of the said Act, the minority of the person has to be determined with reference to the appointed date i. e.9-9-1970. 19. According to the petitioner, Kishori Devi, who was unmarried on the appointed day, was aged about 19 years. In terms of the definition of the minor children as contained in Sec.2 (ee) of the said Act, the minority of the person has to be determined with reference to the appointed date i. e.9-9-1970. 19. According to the petitioner, Kishori Devi, who was unmarried on the appointed day, was aged about 19 years. Learned Counsel contended that the report of the Circle Officer that Kishori Devi was minor was not legally brought on record. The learned counsel submitted that the said report should not have been given preference over the birth register, horoscope and affidavits etc. The Collector under the Act as also the appellate authority has taken into considerasion the report of the Circle Officer to the effect that she was aged about 18 years in 1976. He further held that Kishori Devi being a daughter was not entitled to a share duting the life time of her father. The revisional court also upheld the said finding. It is, therefore, evident that a concurrent finding of fact has been arrived at that Kishori Devi was minor on 9-9-1970. From the said order it does not appear that any birth register has been produced before the respondents. Even in the writ application no such plea has been taken. In view of my findings noted above, it is not necessary to consider as to whether if Kishori Devi was major on 9-9-1970, she was thus entitled to a share or not. 20. It is admitted that a deed of endowment was executed in the year 1919. It is also accepted that two deities are housed in one temple. The petitioner appears to have filed an application for grant of exemption under section 29 of the said Act. The said application for exemption was rejected in Case No.48/73-74 by an order dated 16-4-1984, An appeal was preferred by the deities against the said order which was numbered as Appeal Case no.315 of 1984-85. The other petitioners also preferred appeal against the said order of respondent No.4 which was registered as appeal No 313 of 1984-85. Both the appeals were heard together and the same were dismissed by an order dated 25-1-1988 which is contained in Annexure-3 to the writ application. The Member, Board of Revenue, inter alia has held that the lands dedicated in favour of the deities should not be excluded. Both the appeals were heard together and the same were dismissed by an order dated 25-1-1988 which is contained in Annexure-3 to the writ application. The Member, Board of Revenue, inter alia has held that the lands dedicated in favour of the deities should not be excluded. It has been held : "these contentions have been decided on merit by the Collector of purnea in his order 25-1-88 passed in Ceiling appeal No.313/84-85. It has been found that the entire land in question has been in fact recorded to the revisional survey khatian in favour of satya Narain Roy, Narain Roy and Ram Narain Roy the three sons of Late Bankhandi Roy. They are not recorded in the name of the two deities. The Jamabandi in respect of those lands are running in the name of Satya Narain Roy etc. and rents are also being paid by the recorded tenants. It should be pointed out that the entries made in the survey khatiyans have a presumption of correctness about them The entries cannot be just ignored. There is a categorical assertion on behalf of Satya Narain Roy and others that they never challenged the correctness of these khatiyan entries before any civil court. They have in fact accepted the very correctness and genuineness of the survey khatian prepared in their favour. They have also taken various steps for the creation of Jamabandis in their names and they have been paying rents to the State. They have been found to be in the possession of these lands as raiyats All the revenue records such as revisional survey khatiyans, rents receipts, Jamabandi cant be just ignored by the collector. The Collector can also the fact that at no stage Satya Narin Roy and his not ignore brothers filed any title suit for the correction of entries made in their favour. They never have taken any legal step to record any land in favour of the deity during the revisional survey of these after. " Learned Additional Member, Board of Ravenue further held that bankhandi Roy executed the said deed to keep the property in the family forever. 21 There cannot be any doubt that in law a deity is juristic person. When a dedication is made in favour of the deity, the deity shall be entitled to hold the said dedicated land in its own right. 21 There cannot be any doubt that in law a deity is juristic person. When a dedication is made in favour of the deity, the deity shall be entitled to hold the said dedicated land in its own right. However, if a dedication is made in favour of the trust or temple, it is the trust or temple who would be entitled to allotment of a separate unit. This aspect of the matter has been considered by this Court in Maneshwar Lal and ors V/s. The State of Bihar and others (1978) BBCJ60 ). 22. However, there cannot be any doubt that if such dedication is made in favour of the deity by creating a private or a public trust, the dedicator must divest himself of the property. Only when such an endowment comes into being, the idol or the trust as the case may be becomes owner of the property and being a juristic person becomes a separate landholder. The properties belonging to the deity or the trust are required to be managed by a trustee. 23. Learned Member, Board of Revenue has held that although the revisional survey settlement operation was completed in the year 1958, All the lands which were allegedly endowed, were recorded in the name of the sons of late Bankhandi Rai in equal shares. It has been found by the courts below as to fact that there is nothing to show that even the Samarpannama was produced before the revenue anthorities. 24. Sub-section (2) of Sec.103 B of the Bihar Tenancy Act raises a strong presumption about the correctness of the entry made in the record of rights. Although such presumption can be rebutted but admittedly since the final publication of the revisional survey record of right neither any suit nor application was filed for correction of the said entries before the revenue authorities under the provisions of the Bihar Tenancy Act nor a Civil Suit has been instituted by or on behalf of the deities. As noticed hereinbefore the petitioners continued to pay rent in their own name. The Member, Board of Revenue, therefore, is correct in his finding that from the conduct of the dedicator and his family, it is evident that the properties purported to have been dedicated by reason of the said deed of endowment of the year 1991 remained with the landholder. The Member, Board of Revenue, therefore, is correct in his finding that from the conduct of the dedicator and his family, it is evident that the properties purported to have been dedicated by reason of the said deed of endowment of the year 1991 remained with the landholder. There is nothing on the record to show that the said purported deed of endowment was acted upon. In this connection, it may be mentioned that the petitioner also filed an application for grant of exemption in terms of Sec.29 of the said Act which admittedly has been rejected. 25. Section 29 deals with exemptions. Clasuse (a) of sub-section (1)of Sec.29 of the Act provides that the said Act shall not apply in relation to the lands belonging to the category of the persons mentioned therein. Clause (b) of sub-section (1) deals with those situations where Sec.5 and section 28 of the said Act shall not apply. Sub-section (2) of the Sec.29 of the said Act empowers the State Government by a notification in the official Gazette which exempt certain categories of lands and the extent thereof from the purview of Sec.5 of the Act. 26. A proceeding under Sec.29 of the Act is an independent proceeding. Any order passed in the said proceeding, should have been the subject matter of the challenge before the writ court in a separate writ petition. 27. In this situation, in view of the aforementioned finding of fact it is not possible for us to accept the contention that the deities were also entitled to separte units. 28. It is not in dispute that by reason of Bihar Act No.1 of 1973 the appointed date was fixed as 9-9-1970 The ceiling area thus has to be determined with reference thereto. 28. It is not in dispute that by reason of Bihar Act No.1 of 1973 the appointed date was fixed as 9-9-1970 The ceiling area thus has to be determined with reference thereto. Section S (i) (ii) of the said Act reads thus : "no land-holder holding land in excess of the ceiling area shall from the conmencement of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land (Amendment)Act, 1972 and till the publication of notification under Section 15, transfer of any land held by him except with the previous permission in writing of the Collector, who may refuses to give such permission if he is satisfied for the reasons to be recorded in writing that the transfer is proposed to be made with a mala-fide intention of defeating the object of this Act : provided that the transfer of any land made, with the previous permission of the Collector, shall be deemed to have been made from within the ceiling area admissible to the land-holder : provided also that the transfer of any land beyond the ceiling area admissible to the land-holder shall be deemed to have been made with the object of defeating the provisions of the Act. " 29. By reason of the said first proviso the lands transferred shall be deemed to have been made within the ceiling area admissible to the landholder. The intent and purport of the said proviso is therefore, clear that although the lands have been transferred with the land-holder the same would be deemed to have been made within the ceiling area admissible to the land-holder and thus the land-holder cannot claim that such transfer be excluded from the purview of the ceiling area. The intention of the legislator stands further clarified from sub-section (2) of Sec.9 of the said Act, in terms whereof the lands so transferred by the land-holder. It is, thereof, clear that three legal fictions have been created , one in terms of the first proviso appended to clause (ii) of sub-section (i) of Sec.5, the second in terms of the second proviso thereof and the third in terms of subsection (2) of Sec.9. It is now well known that a legal fiction created by reason of the provisions of the statute has to be given full effect. 30. In East End Dwelling Co. It is now well known that a legal fiction created by reason of the provisions of the statute has to be given full effect. 30. In East End Dwelling Co. Ltd. V/s. Finsbury Borough Council, reported in 1952 Appeal Cases 109, Lord Asquith stated the law thus : "if you are bidden to treat an imaginary state of "affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it The statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. " The aforementioned decision has been quoted with approval by the Supreme court as also by this Court in various decisions. 31 It is, therefore, clear that consequence of a transfer made by a landholder without previous permission of the Collector under the Act having been provided in the Act itself, the same must be held to be a mandatory one. The intention of the legislator becomes further clear from the bare perusal of second proviso appended to clauses (it) of sub-section (1) of section 5 of the Act wherein it is stated that such a transfer shall be deemed to have been made with the object of defeating the provisions of the Act. 32. As noticed hereinbefore clause (ii) of sub-section (1) of Sec.5 provides for grant of permission on an application to be filed by the landholder in this regard. Such a permission can berefused by the Collector only if he is satisfied for the reasons in writing that transfer is proposed to be made with mala fide intention to defeat the provisions of the Act. Such a permission can berefused by the Collector only if he is satisfied for the reasons in writing that transfer is proposed to be made with mala fide intention to defeat the provisions of the Act. In terms of second proviso as quoted hereinbefore, it is, clear that if no application is filed for permission of the transfer and transfer is made by the landholder without obtaining such prior permission, the same would be deemed to have been made without the object of defeating the provisions of the Act, the consequences whereof is that permissions could be deemed to have been refused resulting in creation of a legal fiction that the transfer has been made by the landholder within the ceiling area admissible to him. 33. The question now which arises for consideration is as to whether even in such a case a proceeding in terms of clause (iii) of sub-section (1) of section 5 has to be initiated. 34. According to Mr. Madhav Roy clause (iii) of sub-section (1) of section 5 of the Act attracts all transfer made after 22nd day of October 1959. The contention of Mr. Roy cannot be accepted. By reason of the provisons contained in Sec.5 of the Act, any transfer made prior to 22nd october, 1959 cannot be the subject matter of an enquiry under the said act. However, any transfer made after 22-10-1959 and before the appointed dated i e.9-9-1970 can be the subject matter of an enquiry in terms of clause (iii) of sub-section (1) of Sec.5 of the Act and in any such enquiry a transfer can be annulled by the Collector under the Act, if he is satisfied the that same was 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. Clause (ii) of sub-section (!) of Section, 5 however, brings within its purview only such transfers which have been made after 9-9-1970. The ceiling area of the landholder has to be determined as on 9-9-1970. Clause (ii) of sub-section (!) of Section, 5 however, brings within its purview only such transfers which have been made after 9-9-1970. The ceiling area of the landholder has to be determined as on 9-9-1970. Thus, if any surplus lands were belonging to the landholder as on 9-9-1970 the same have to be taken into consideration for the purpose of determining the ceiling area Clause (ii) of sub-section (1) of Sec.5 of the Act, however, makes an enabling provision so as to lessen the burden of the landholder by providing that a land holder would be entitled to transfer the land in excess of the ceiling area subject to the condition that he obtains permission in this regard. Clause (ii) of sub-section (i) of Sec.5 of the Act therefore, is a special provision in relation to a transfer made after 9-9-1970, whereas (iii) of sub-section (1) of Sec.5 of the Act is a general provision. The clause doctrine of generalia specil abuse nonderogant is. thus, applicable in this case. 35. The question which now arises for consideration is as to whether the legislature could give retrospective effect and retroactive operation to clause (ii) of sub-section (i) of Sec.5 of the Act. 36. It is true that if a person acquires valid title in respect of a property he cannot be divested from his interest by reason of the provisions of the statute unless the some is expressly provides for. It is further well known that the legislature is entitled to give retrospective effect to a legislation. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus land) (Amendment) Act, 1973 is a protected legislation as the same has been included in the 9th schedule of the Constitution of India and thus, the same is immune from challenge on the ground that the said provision is violative of Articles 14, 19 and 31 of the Constitution of India, 37. However, as noticed hereinbefore, Mr. Madhav Roy contended that as Bihar Act No.1 of 1973 has not made any provision to the effect that all such transfers would be deemed to be contest or void in law, the same must be held to be valid as on 3-12-1970 as when the landholder executed the deed in question in favour of respondent No.5, no provisions for previous permission existed. 38. 38. In Smt. Kusum Kumari Devi V/s. Custodian of Evacuedee property, bihar and another, reported in AIR.1954 Patna 238, it has been held as follows : "it is a familiar rule that no statute shall be construed to be of retrospective operation unless the terms of the statute expressly state that it is retrospective or such a construction arises by necessary implication. The rule is based on the presumption that legislature does not intend what is unjust or that transpections which have already vested title to property should be reopened or thrown into doubt. " 39. The Governor of Bihar in exercise of his power conferred upon him under Article 213 of the Constitution of India promulgated an ordinance being ordinance No.7 of 1970. The said Ordinance received the assent of the Government of Bihar on 8-9-1970 which was followed by several Ordinances promulgated from time to time : the last in the series being Ordinance no.66 of 1972. By reason of Sec.3 (3) of the said Ordinances, Sec.5 of the said Act was amended and in terms whereof the following proviso has been added to clause (ii) of sub-section (1) of Sec.5 of the Act : - "provided that no land holder holding land in excess of the ceiling area shall from and after the date of commencement of the Bihar land Reforms (Fixation of Ceiling Area and Acquisition of surplus Land) (Amendment) Ordiance.1970 and until the publication of notification under Sec.15 transfer of any land-held by him except with the previous permission in writing of the Collector who may refuse to give such permission if he is satisfied for reason to be recorded in writing that the transfer is proposed to be recorded in writing that the transfer is proposed to be made with a mala fide intention of defecting the object of this Act. " 40. In this view of the matter, it cannot be said that as on 3-12-1970 when the landholder made a transfer in favour of respondent No.5, there was no provision for taking prior permission. 41. Learned counsel for the petitioner referred to a Division Bench decision of this Court in Deosagar Singh and others, v State of Bihar and others, reported in 1979 BBCJ 589 . 41. Learned counsel for the petitioner referred to a Division Bench decision of this Court in Deosagar Singh and others, v State of Bihar and others, reported in 1979 BBCJ 589 . In the said decision, it was held as follows :- "it is also important to note that in clause (ii) it has not been provided as to what would be the effect if the permission has not been taken. It only says that the land-holder holding land in excess of the ceiling area shall not transfer any land without prior written permission of the Collector, but if Clause is silent on the point. Therefore, reading clauses (ii) and (iii) together, there is no doubt left that even in respect of transfer coming within clause (ii), and enquiry under clause (ii), is necessary and that enquiry has to be made before saying one way or the other in respect of the transfer made even after 9-9-1970. " 42. It is, thus, evident that the attention of the Division Bench was not drawn to the amendments made in Sec.5 (2) of the said Act. As indicated hereinbefore, the Statute now itself provides consequence for non-obtaining of the previous permission before a transfer can be effected by a landholder in relation to the lands in excess of the ceiling area after the appointed day i. e, 9-9-1970 which are exclusively contained in the two provisos appended thereto. The attention of the Bench was not further drawn to the legal fiction created by reason of the aforementioned proviso as also the provisions contained in sub-section (2) of Sec.9 of the Act in terms where of only transfer made by the landholder after the appointed day would be deemed to have be selected by him. 43. From a conjoint reading of Sec.5 (2) together with the two provisos appened thereto to and sub-section (2) of Sec.9 of the Act. there cannot be any doubt whatsoever that if previous permission is not obtained by the landholder, the transfer so made shall not anly be deemed to have been made for the purpose of defeating the purpose of the Act, but also deemed to have been selected by the landholder. there cannot be any doubt whatsoever that if previous permission is not obtained by the landholder, the transfer so made shall not anly be deemed to have been made for the purpose of defeating the purpose of the Act, but also deemed to have been selected by the landholder. It is thus evident that as the consequence for non-obtaining of the transfer effected after 9-9-1970 by the landholder his, in fact, been provided for the Statute, the said provision must be held to be mandatory in nature. A decision, as well as known, which is rendered without taking into consideration a provision of law passes sub-silentio. 44. For the aforementioned reason Deosagar Singhs case does not create any binding precedent and must be held to have been passed sub-silentio and/or rendered per incurium. 45. It is therefore clear that transfers made by the landholder on 6-12-1970 cannot be excluded from the purview of the computation of ceiling area at the hands of the landholders. 46. It is thus not a case where a transfer is sought to be invalidated with a retrospective effect as on 6-12-1970 when the transfer was made their provision for obtaining prior permission existed. Mr. Madhav Roy, when questioned conceded to this legal aspect of the matter when the provisions of the said ordinances were brought to his notice. 47. The question as to whether a deed of gift could have been executed by Bankhandi Roy in favour of the mother of respondent No.5 is essentially a question of fact. The answer to the said question depends upon as to when Bankbandi Roy died. If Bankhandi Roy died after coming into force of Hindu Succession Act, the mother of respondent No 5 being sister of the petitioner would certainly be entitled to a unit. However, the date of death of Bankhandi Roy is not available on record. It also does not appear that the said question was ever raised before the Collector under the said Act. In any event, the transfer in favour of respondent No.5 was made by a registered deed of sale dated 3-12.70. It, therefore, now daes not lie in the mouth of the petitioner to contend that the said deed of sale that was executed by way of any family arrangement as the mother of respondent No.5 was also entitled to her share. It, therefore, now daes not lie in the mouth of the petitioner to contend that the said deed of sale that was executed by way of any family arrangement as the mother of respondent No.5 was also entitled to her share. As such the contention clearly appears to be an after-thought and in any event not tenable in law. 48. No evidence also admissible contrary to the terms and conditions of the said deed of sale in terms of the provisions contained in Sections 91 and 92 of the Evidence Act nor the petitioner at this stage can be permitted to resile from the stipulations made in the said deed of sale. 49. So far as the contention of the petitioner relating to classification is concerned, the same, however, has substance. The Collector under the act has classified the land on the basis of some report made by the Executive engineer, Kosi Division. Neither any basis for classification of the land has been discussed by the courts below nor any discussion has been made with reference to Sec.4 of the Act. The onus of proof so far as classification of land is concerned is on the State. In terms of Sec.4 of the said Act, the classification of the land would depend upon the availability of the irrigational facility either by flow irrigation work or tubewell or lift irrigation etc. as contained in clause a or irrigational facilities by works. Existence of such irrigational facility in terms of clauses a, b, c, have to be found as of fact. No such material has been discussed by the courts below. 50. In Md Fakhruddin V/s. State of Bihar and others, reported in 1976 PLJR 384, 1976 BBCJ 536 , it has been held as follows :- "clause (c) of Sec.4 refers to lands which are capable of being irrigated by works which provide or are capable of providing water for only one season. In the Hindi version of this clause the word works has been described as nirman. In the Hindi version of this clause the word works has been described as nirman. On a plain reading also, the words work means some sort of construction of a permanent nature and it must be in existence on the date ceiling is going to be fixed It clause (c) is read in this light, the irresistible conclusion is that the ceiling of 25 acres can be fixed only in respect of lands which are being irrigated or are capable of being irrigated by such irrigational works which are providing or are capable of providing water for one reason. If such irrigational works are not in existence, in my opinion, there is no question of applying clause (c) to such lands and referring to them as class III land In this connection I may point out that the word work has been used only in clauses (a) and (c), it has not been used in clause (d) which means that the legislature by the word (works) means some construction (nirman)for providing irregation which has been constructed and is being maintained by the Central or the State Government or a body corporate constituted under any law. In any case, the word works mentioned in clause (c) refers to the mode of irrigation mentioned in clauses (a) and (b), that is flow irrigation works, tubewells and lift irrigation, which are construced and maintained by Central or the State Government or by a body corporate, or private life irrigation or tubewells which are operated by electric diesel power. In other words, if some private individual is irrigating his land even twice a year, but by some other means of irrigation than those mentioned in clause (a) and (b) then the lands in question will not be covered by clause (c) and they cannot be referred to as class III lands. The said lands, in my will be covered by clause (d) and can be referred to as class IV lands. " 51 It was, therefore, incumbent on the part of the Collector under the act to arrive at a specific finding as to how and in what manner the lands have been classified as class I lands or class III lands If any report other than the report under rule 8 is relied upon the maker of the report should be examined. It is also event that the petitioners have been denied an opportunity to adduce any oral evidence with regard to the nature of the land. 52. In this view of the matter, the finding of the Collector under the act, so far as classification of land is concerned requires a fresh decision. For this purpose the Collector may himself hold a local inspection in presence of the petitioner on a specific date to be fixed in that regard The Collector under the Act should also given an opportunity to the petitioner to adduce oral or documentary evidence and, thereafter, he shall consider the matter on the basis of materials brought on record. 53. In view of the fact that the matter is to be remanded back, in the peculiar facts and circumstances of the case, the petitioner may also exercise his option which may duly be considered be the Collector under the act. 54. This application is therefore, allowed in part and to the extent mentioned hereinbefore. In view of the fact that the matter is pending for a long time, the Collector under the Act will be well advised to dispose of the matter as early as possible and preferably within, a period of two months from the date of receipt of a copy of this order. The petitioner is also directed to appear before the Collector under the Act within three weeks from the date of receipt of a copy of this order.