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2001 DIGILAW 936 (PAT)

Ramjanam Singh v. State Of Bihar

2001-10-03

CHANDRAMAULI KR.PRASAD, S.N.JHA

body2001
Judgment 1. This Letters Patent Appeal arises from the judgment of a learned Single Judge of this Court dismissing the writ petition of the appellant. The writ petition has arisen from an order of the Collector, Vaishali by which the deed of gift executed by Basmati Devi in favour of Smt. Chandri Devi was held to be void under section 32 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (in short, the Act). 2. The short facts of the case are that the said Basmati Devi executed the impugned deed of gift in favour of her daughter-in-law, Smt. Chandri Devi, in respect of 2.63 acres of lands on 3rd August, 1976. The validity of the gift was challenged on the ground that the donor had not obtained prior permission of the Consolidation Officer in terms of section 5 of the said Act. Section 5 of the Act prohibits certain types of transfer without prior sanction.. Section 6 lays down the procedure for obtaining the sanction. Section 32 of the Act provides that 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 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, 3. Mr. Shrawan Kumar, counsel for the appellants contended that the restriction imposed by section 5 comes into play after the date of publication of preparation of register of lands and statement of principles under sub-section (1) of section 10 and as, in the instant case, the statement of principles was published later than the date of gift, the bar of section 5 was not applicable. Counsel submitted that it is evident from the report of Deputy Director that whereas the deed of gift is of 3.8.1976, the register of lands was published between 12.4.1974 and 12.5.1974 but the statement of principles was published only on 23.11.1978. 4. Counsel for the respondents controverted the submission of the learned counsel for the appellants but regard being had to the fact that no counter affidavit was filed by the respondents controverting the contents of the report of Deputy Director we have no option but to proceed on the basis of the facts stated therein, 5. 4. Counsel for the respondents controverted the submission of the learned counsel for the appellants but regard being had to the fact that no counter affidavit was filed by the respondents controverting the contents of the report of Deputy Director we have no option but to proceed on the basis of the facts stated therein, 5. The only point for consideration is whether the statement of principles having been published on 23.11.1978, the gift was hit by the provision of section 5 of the Act or not Section 5 at this stage may be quoted as under: "5. No transfer without sanction. 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." 6. It is manifest that the restriction upon transfer of any land in the notified area is attracted after the publication of register of land and statement of principles under sub-section (1) of section 10. Sub-section (1) of section 10 of the Act runs as under: "10, Publication of registers of lands and statement of principles and objections thereon.(1) The registers prepared under sub-section (2) of section 9 and the statement of principles prepared under section 9A shall be published in the manner prescribed and shall remain published for not less than 30 days." 7. It is evident that section 10(1) refers to two different, distinct situations and operate in different fields the former refers to publication of register of land prepared under sub-section (1) of section 9 while the latter refers to the publication of statement of principles prepared under section 9A of the Act. Sub-section (1) of section 9 of the Act provides that when the record of rights and map have been or deemed to have been brought up-to date there shall be determined the valuation of each plot. Section 9A refers to the principles to be followed in carrying out the consolidation operations in the unit. 8. Sub-section (1) of section 9 of the Act provides that when the record of rights and map have been or deemed to have been brought up-to date there shall be determined the valuation of each plot. Section 9A refers to the principles to be followed in carrying out the consolidation operations in the unit. 8. Section 10(1) refers to both publication of registers of lands and publication of statement of principles. There is litle doubt that restriction imposed by section. 5 gets attracted only after both the registers of lands and statement of principles are published where the statement of principles is published later than the publication of the registers of land, the latter date will be the crucial date for applying the provision of section 5. 9. As stated above in the absence of any plea and evidence to the contrary the court has to proceed on the basis of the dates mentioned in the Deputy Directors report and as such, statement of principles having been published later than the date of gift and the bar of section 5 was not applicable, and therefore the gift could not be void under section 32 read with section 5 of the Act. The order of the learned Single Judge therefore cannot be said to be in accordance with law. 10. Before concluding we may mention that one of the submissions of the counsel for the appellant was that rationale underlying the restriction on transfer and the requirement to obtain sanction under section 6 is to avoid fragmentation of land. As in the instant case the gift was made to the daughter-in-law, that is, in effect, to the son from the mother, there was no question of any fragmentation of land and the impugned deed cannot be said to be contrary to the spirit of sections 5 and 6 of the Act. in view of our conclusion on the main point it is not necessary to go into this submission. 11. In the result, this appeal is allowed. The impugned order of learned single judge is set aside. The order of the Collector also stands set aside.