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1995 DIGILAW 541 (PAT)

Sitaram Singh v. State of Bihar

1995-09-21

S.N.JHA

body1995
JUDGMENT S.N. Jha, J. - The petitioner has challenged the validity of the order of the Collector, Samastipur in case No. 521 of 1989 imposing a fine of Rs. 250/- on respondent no. 4 Kapildeo Singh for having executed the sale deed in favour of the petitioner without sanction of the authority under Section 5 of the Bihar Consolidation of Holding and Prevention of Fragmentation Act, 1956 ('the Act' in short) on 16.10.84, holding that the transfer was in violation of the provision of Section 5. 2. The petitioners purchased 13 Kathas of land of C.S. Plot No. 1172 corresponding to now R.S. Plot Nos. 1498 and 1500 from respondent 110. 4 who later transferred a portion of the same very land in favour of respondent nos. 5 and 6 herein. This naturally led to a dispute between the parties which has resulted in the impugned order. 3. Before adverting to the point in controversy it would be appropriate to notice the provisions of Sections 5 and 32 of the Act which are as follows : "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 the notification under sub-section (1) of Section 3 has been issued." 32. (2) The provision of sub-section (1) shall take effect from the date the notification under sub-section (1) of Section 3 has been issued." 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." From a plain reading of the aforesaid provisions it would appear that 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 after the date of publication of preparation of register of lands and statement of principles under Section 10 (1) of the Act. If such a transfer is made in contravention of the bar, as per Section 32 the same will be void exposing the transferor to imposition of fine not exceeding Rs. 250/- by the Collector. 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. 5. It is not in dispute that the register of lands and statement of principles as contemplated by Sections 10 (1) and 9A of the Act was published prior to the transfer. According to the petitioner, however, by reason of the exclusion of the land under Section 9A from the purview of the consolidation scheme, the land was no more amenable to the mischief of Section 5 and therefore it was not obligatory for transferee to seek any sanction there under. In view of the submission the provision of Section 9A may be noticed which runs as herein-below: "9A. In view of the submission the provision of Section 9A may be noticed which runs as herein-below: "9A. Preparation of statement of principles.- The Assistant Consolidation Officer shall prepare after considering the Opinion of the Village Advisory Committee and such raiyats as may be available in respect of each unit under consolidation operations, a statement in the prescribed manner (hereinafter called the statement of principles) setting forth the principles to be followed in carrying out the consolidation operations in the unit. The statement of principles shall also contain the following: (a) details of areas, as far as they may be determined at this stage, to be earmarked for extension of habitation including areas for habitation of Scheduled Castes. Scheduled Tribes and landless person in the unit, and for such other public purpose as may be prescribed; (b) tile basis on which the raiyats will contribute land for expansion of habitation and for other public purposes; and (c) details of land to be earmarked for public purposes." 6. From a reading of the provision of Section 9A it will appear that the statements of principles to be prepared there under is supposed to contain details of areas "to be earmarked for extension of habitation" at a particular stage (the words used are "at this stage"). If one goes through the scheme of the Act it will appear that the provisions can be broadly classified into two parts - one dealing with the preparation of records/register of lands and the other dealing with preparation and finalisation of the consolidation scheme. Of course consolidation of holding is the prime object of the Act but, obviously, no scheme can finally be prepared unless the right, title and interest of the land owners in the lands have been determined from before. The bar contemplated by Sec. 5 of the Act has been created only to ensure that indiscriminate transfers are not made so as to result into further fragmentation of land which would create difficulty for the authorities in finalisalion of the consolidation scheme. The bar contemplated by Sec. 5 of the Act has been created only to ensure that indiscriminate transfers are not made so as to result into further fragmentation of land which would create difficulty for the authorities in finalisalion of the consolidation scheme. At the stage of consolidation of lands no doubt the entire lands of the village cannot be included in the consolidated scheme-some lands are bound to be excluded and left out of the scheme, either under Section 9A because they are inhabited or are earmarked for public purpose or under Explanation to Section 2 (3) of the Act because they are orchards etc. The words "at this stage" occurring in Section 9A give sufficient indication of the fact that the statement of the principles is not conclusive and is liable to be altered from time to time. In other words, the lands which are found to be in habitation or fit for the purpose at a particular stage of consolidation may later be also included within the consolidation scheme or vice-versa. It would be anomalous to hold in such a situation that merely because certain lands are to be excluded and kept out of the purview of the consolidation scheme, i.e. at the later stage of the proceedings, Section 5 will not be applicable to them. Section 9A does not give any indication of the fact that lands which are excluded from the purview of the scheme do not fall within the mischief of Section 5. As I have indicated above the object of Section 5 is to prevent further fragmentation of land and, therefore, it must be interpreted to include within its fold the entire lands of the village. It is noteworthy that both in Section 5 and Section 32, the expression used is "any land", I accordingly do not find any substance in the contention of the counsel that the land in question having been chaked out', i.e. kept out of the chak scheme, the provisions of Section 5 will not be attracted and, therefore, the transfer deed was not in contravention of the provision. 7. Before I conclude I may usefully refer to Annexure 9' which is copy of information Chirkut supplied by the Consolidation Officer on 21.12.89. 7. Before I conclude I may usefully refer to Annexure 9' which is copy of information Chirkut supplied by the Consolidation Officer on 21.12.89. It categorically states that as on 16.10.84, i.e. the date of transfer, the provisions of Section 5 were applicable and the permission of the Consolidation Officer was a must. It also states that there was no notification regarding exemption of the notification under Section SA. 8. I accordingly do not find any error in the impugned order of the Collector. The writ petition is therefore dismissed.