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1998 DIGILAW 142 (PAT)

Radha Kant Mishra v. State Of Bihar

1998-02-18

S.N.JHA

body1998
Judgment 1. This writ petition relates to a proceeding being LC Case No. 25/42 of 1969-70/1973-74, which was initiated for determination of the ceiling area of Chetmani Singh. The dispute relates to RS Plot No. 7611, 7621 and 7625 appearing to CS Plot No. 2630 measuring 16 bighas situate at Babhangama within Tribeniganj Anchal of Supaul District. 2. The land in question earlier belonged to the said Chetmani Singh. He transferred the land along with other land to his first wife Tula Kumari Devi @ Tula Devi. Subsequently she transferred the land in question to her step-daughter Chitralekha Devi born from the third wife (of Chetmani Singh) named Chandrawati Devi, under registered deed of gift on 7.2.53. The name of Chitralekha Devi was mutated in the revenue records and Jamabandi was opened in her name and she paid rent all along. During the revisional survery operation, it is said, after proper enquiry her name was recorded with respect to the land. On 22.2.71 Chitralekha Devi transferred the land in question to the petitioners under various registered sale deeds. It is said that the name of the petitioners were also mutated with respect to the land in question in the revenue records and they have been paying rent. During the recent consolidation operation the names of the petitioners have also been recorded with respect to the land after proper enquiry. However, the land in question was not only included in the ceiling proceeding (LC Case No. 25 of 1969-70) initiated against Chetmani Singh but also declared surplus treating the same to be his land without any enquiry whatsoever and notice to the petitioners. The petitioners came to this Court in CWJC No. 5259 of 1983. By order dated 23.1.92 they were asked to file petition under Section 45B before the District Collector. The status quo, however, was ordered to be maintained during the pendency of the proposed petition. On 9.3.92 the petitioners accordingly filed petition under Section 45B before the Collector, Supaul which was registered as Case no. 11/8 of 1992-/93. By order dated 4/11.9.95 the Collector dismissed the case holding that no case had been made out for re-opening of the proceeding under Section 45B. The petitioners preferred revision being Case no. 90 of 1995 in the Board of Revenue. 11/8 of 1992-/93. By order dated 4/11.9.95 the Collector dismissed the case holding that no case had been made out for re-opening of the proceeding under Section 45B. The petitioners preferred revision being Case no. 90 of 1995 in the Board of Revenue. The Additional Member of the Board by his order dated 19.12.95 held that after the amendment of Section 45B by Bihar Ordinance No. 20/95, with effect from 8.9.95, the Collector of the District ceased to have jurisdiction to entertain, much less decide, a petition under Section 45B. As the Collector, in the present case, has passed order after 8.9.95, the order was infructuous. Accordingly, he declined to interfere in the matter. Copies of the said orders of the Collector, Supaul and Additional Member, Board of Revenue have been marked, respectively, Annexures 9 and 10 to the writ petition. 3. Mr. Arun Prasad Ambastha submitted that the land in question having been transferred by the land-holders wife (who herself was a transferee from the land-holder) under registered document in the year 1953 i.e. much prior to 22.12.59, they cannot be treated as land of the land-holder and declared surplus. He submitted that the grounds assigned by the Collector for disregarding the deed of gift are not tenable. In any view, the petitioners having purchased the land bonafide and for proper consideration, the land cannot be treated surplus land of the land-holder without any enquiry and opportunity of hearing to them. Counsel also submitted that as the petition under Section 45B was pending before the Collector, Supaul prior to amendment of the Section, the same was maintainable and the Collector was otherwise competent to dispose of the same. The Addl. Member, Board of Revenue, therefore, committed error of law in rejecting the revision on the ground of non-maintainability of the appeal without going into the merit of the case. 4. Mr. B.P. Verma, learned counsel for the State submitted that the gift in favour of Chitralekha Devi was not valid. In any view, being minor as on the appointed day (9.9:70), she has to be treated as member of the family of the landholder for the purpose of the Ceiling Act. He referred to the Explanation appended to Section 5(1)(i) of the Act. In any view, being minor as on the appointed day (9.9:70), she has to be treated as member of the family of the landholder for the purpose of the Ceiling Act. He referred to the Explanation appended to Section 5(1)(i) of the Act. In this regard he placed reliance on State of Maharashtra V/s. Narayan Rao Sham Rao Deshmukh, AIR 1985 SC 716 and Sib Narayan Rao V/s. State of Bihar & Ors., 1994(1) PLJR 294. He also referred to State of Bihar V/s. K. M. Zuberi, 1996(1) BLJ 647 : 1996(2) PLJR (SC)55. 5. Before coming to the merit of the claim of the petitioners I may briefly deal with the contention as to the maintainability of the petition under Section 45B of the Act before the Collector. Section 45B as it stood prior to Bihar Ordinance no. 20/95 conferred power on both the State Government and the Collector of the District authorised in this behalf, to, at any time, call for and examine record of any proceeding disposed of by a Collector under the Act and in proper case, to direct that the case be reopened and decided afresh in accordance with the provision of the Act. By Ordinance No. 20/95 "the Collector of the District" was omitted for the Section. In other words, only the State Government remained competent to call for and examine the record of any case and direct re-opening of disposed of proceeding. This Court in Bhagwan Singh & Ors. V/s. State of Bihar, 1996(2) PLJR 61 while dealing with a similar question held that there was no provision in Bihar Ordinance No. 20/95 for transfer of the petition pending before the Collector of the District under Section 45B to the State Government, such petitions which were pending before him, from before had to be disposed of by the District Collector on merit. The view taken by the Additional Member, Board of Revenue that the Collector had no jurisdiction to entertain and decide the petition under Section 45B and the order was therefore infructuous, is contrary to the decision of this Court and fit to be set aside on this ground alone. 6. The view taken by the Additional Member, Board of Revenue that the Collector had no jurisdiction to entertain and decide the petition under Section 45B and the order was therefore infructuous, is contrary to the decision of this Court and fit to be set aside on this ground alone. 6. As far as the merit of the case, I find much force in the contention of the Counsel for the petitioners that the land in question cannot be treated as the land of the land-holder unless the transfer made by him (land-holder) to his wife Tula Kumari Devi and the deed of gift executed by Tula Kumari Devi in favour of Chitralekha Devi are annuled. It is true that at the time of execution of the deed on 7.2.53 Chitralekha Devi was a minor, in fact a child of one year. However, there is no bar in law to making a transfer in favour of minor. Section 7 of the Transfer of Property Act puts restriction on the right of a minor to make a transfer but there is no corresponding restriction on property being transferred to him or her. In the present case it appears from the recitals of the gift deed that Chetmani Singh had three wives, namely, Smt. Tula Kumar Devi (donor herself), Smt. Tara Devi and Smt. Chandrawati Devi. The first two wives were isssueless. From the third wife Chitralekha Devi was born. Being the only child of the family she was naturally the centre of love and affection of all the family members. The donor as token of expression of love and affection made a gift of the land which had earlier been given to her by her husband, Chetmani Singh. The transfer was made to the minor through her natural mother Chandrawati Devi. In the eye of law such a transfer cannot be said to be illegal. 7. The Collector appears to have been swayed by the fact that two out of three sheets of stamp papers on which the deed was scribed bear the emblem of King Emperor which, according to him, was not possible after the Independence. I have examined the document in question the original of which was produced. A xerox copy of the document in fact has been marked Annexure 1 to the writ petition. I have examined the document in question the original of which was produced. A xerox copy of the document in fact has been marked Annexure 1 to the writ petition. From the reverse side of the first sheet of the deed it appears that three stamp papers of the denomination of Rs. 100/-, Rs. 15/- and Rs. 2/- were sold by Shri Chetmani Singh by the Stamp Vendor on 6.2.53. The document was duly registered by the registering authority on 7.2.53. Counsel for the State was not able to show any provision of law or notification/order under which non-judicial stamp paper bearing the emblem of King Emperor lost its validity after the Independence. In any view, for the purpose of the Ceiling Act what it to be seen is whether the transfer was genuine and bonafide or not. The fact that the transfer took place under registered document coupled with the facts that the transferees name was mutated in the revenue records and also recorded in the ravisional survey records, go a long way to show the bonafide of the transaction. So far as the petitioners are concerned, no doubt they purchased after 9.9.70. But for the purpose of Ceiling Act again, the land cannot be treated to be the land of land-holder unless the transfer made by the donee in their favour and the initialt transfers by the land-holder to his with Tula Kumari Devi and by Tula Kumari Devi to Chitralekha Devi are annuled Section 5(1)(iii) contemplates enquiry with respect to only such transfers which have been made after 22.10.59. The transfer in the present case, so far as the land holder is concerned, having taken place prior to 22.10.59, the land in question cannot be treated to be his land, much less without any enquiry. 8. The submission by the counsel for the State that Chitralekha Devi should be treated as member of the family of the land-holder by virtue of the Explanation under Section 5(1)(i) of the Act, has no substance. The Ceiling area has no doubt been fixed under Section 4 of the Act in terms of family which has been defined to mean and include "a person, his or her spouse and minor children". The. The Ceiling area has no doubt been fixed under Section 4 of the Act in terms of family which has been defined to mean and include "a person, his or her spouse and minor children". The. Supreme Court in the State of Bihar vs. K.M. Zuberi (supra) held after referring to the different provisions of the Act that the ceiling area is required to be determined of a "family" as defined in Section 2(ii) and, therefore, the "land-holder" whose ceiling is going to be determined. The term land-holder has been defined in Section 2(g) to mean a family holding land, amongst others, as raiyat or as under-raiyat. The term raiyat has been defined under clause 2(k) to mean primerily a person who has acquired a right to hold land for the purpose of cultivating it by himself of by members of his family or by hired servants or with the aid of partners, and so on. 9. In view of the mutation of her name in the revenue records, recording of her name in the revisional survey records and more importantly, in view of the fact that there is no legal bar to a minor holding property, Chitralekha Devi must be held to be land-holder within the meaning of the Ceiling Act. Therefore, unless the transfer made in her favour under the aforesaid deed of gift dated 7.2.53 is annuled, it cannot be disregarded and the land in question cannot be treated as the land of Chetmani Singh. In view of the clear provisions of Section 5(1)(iii) of the Act, the Collector has no jurisdiction to go into the validity or otherwise of a transfer made prior to 22.10.59. In that view of the matter the subsequent transfer made by Chitralekha Devi in favour of the petitioners cannot be questioned. The land of the petitioners in question thus cannot be treated as land of Chetmani Singh and declared as surplus land. 10. In the result, the impugned order of the Collector, Supaul contained in Annexure 9 and that of the Additional Member, Board of Revenue contained in Annexure 10 are quashed. The Collector, Supaul is directed to pass fresh order in accordance with law and further in accordance with the observations made hereinabove. 11. This writ petition stands allowed accordingly.