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Jharkhand High Court · body

2002 DIGILAW 1144 (JHR)

Sheikh Manir v. State of Bihar

2002-10-31

M.Y.EQBAL

body2002
Judgment M. Y. Eqbal, J.-In the instant writ petition the petitioner has prayed for quashing that part of the Gazette Notification dated 16.4.88 purported to have been issued under Section 15(1) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 whereby portion of land of Plot No. 485 of village Medho, P.S. Senha, District Lohardaga has been declared as surplus land in the name of respondent no. 4 the land holder in Ceiling Case no. REV 41/ 405/73-74. 2. Petitioner's case is that he purchased the aforementioned land from the land holder by virtue of registered deed dated 26.5.1973 for valuable consideration and after the said purchase the land was mutated in the name of the petitioner and rent receipts were granted by the State of Bihar. During recent survey the aforementioned land so purchased by the petitioner has been renumbered as Plot .Nos. 476 and 477 and has been duly recorded in the survey record in the name of the petitioner by final publication under section 83(2) of the Chhotanagpur Tenancy Act. Petitioner's further case is that inspite of the aforesaid fact, without giving any notice of the ceiling proceeding to the petitioner and without initiating any action, the land so purchased by the petitioner has been declared as surplus land of the land holder. 3. Respondents' case in the counter affidavit is that petitioner purchased the land from the land holder in 1973 whereas the ceiling proceeding was initated against the land holder on 15.5.70 and notice of the ceiling proceeding was served upon the land holder in 1972. It is further stated that draft notification under Section 10 of the Act was served upon respondent no. 4 on 3.7.76 but in the objection filed by him he has not mentioned about the transfer made in favour of the petitioner. It is further contended that inclusion of the land in the recent survey proceeding in the name of the petitioner cannot confer any right upon him. 4. I have heard Mr. M.S. Anwar, learned senior counsel appearing for the petitioner and Mr. P. Modi, learned counsel appearing for the State. I have also called for record of the Ceiling Proceeding being case no. 41/405/73-74. 5. Admittedly the land of plot no. 4. I have heard Mr. M.S. Anwar, learned senior counsel appearing for the petitioner and Mr. P. Modi, learned counsel appearing for the State. I have also called for record of the Ceiling Proceeding being case no. 41/405/73-74. 5. Admittedly the land of plot no. 485 measuring an area of 1.35 acres situated at village Medho, P.S. Senha, District Lohardaga was transferred by the land holder, respondent no. 4 in favour of the petitioner by virtue of registered deed of sale dated 26.5.73. After the said purchase the petitioner got his name mutated in the revenue record and rent receipt has been granted by the State of Bihar in the name of the petitioner. This fact has not been disputed by the respondents in their counter affidavit. Although in the counter affidavit it is stated that the ceiling case was initiated against respondent no.4 on 15.5.70 and notice of the said proceeding was served upon him on 17.1.72 but from perusal of the record of the ceiling proceeding it appears that a ceiling proceeding was registered against respondent no. 4 only in 1973 being Ceiling case no. 41/405/73-74 and in the first order dated 30.6.73 it is mentioned that notice under Section 6(1) of the said Act was published in the newspaper in the month of June, 1973. In the entire order sheet it is not mentioned that any inquiry regarding the persons possessing land under proceeding was done rather in the recent survey held in 1989 final publication under Section 83 of the Chhotanagpur Tenancy Act was in the name of the petitioner in respect of the land in question. 6. As noticed above, transfer was affected by virtue of registered deed of sale of the year 1973 before ceiling case was registered in the name of respondent no. 4 land holder and no inquiry was made nor any notice or opportunity of hearing was given to the petitioner before the land was declared as surplus land. On the contrary the land was mutated in the name of the petitioner and the State of Bihar granted rent receipt in favour of the petitioner. In my opinion, it is a fit case where inquiry should have been made by the Collector under Section 5(1) (iii) of the said Act. On the contrary the land was mutated in the name of the petitioner and the State of Bihar granted rent receipt in favour of the petitioner. In my opinion, it is a fit case where inquiry should have been made by the Collector under Section 5(1) (iii) of the said Act. In absence of any inquiry to find out whether transfer made in favour of the petitioner was a fraudulent transaction, the said land could not have been declared as surplus land in the name of the land holder respondent no. 4. 7. Section 5(1)(iii) of the said Act empowers the Collector to annul such transfer made by the land holder after 22nd da~1 of October. 1959 and if he is satisfied that such transfer was made with the object of defeating or in contravention of the provisions of the Act or for retaining the land in Benami or in farzi name. Even before annulling such transfer the Collector is bound to give notice to the concerned parties after giving opportunity of hearing. It is well settled that all transfers made after 22nd October. 1959 cannot be annulled under the aforesaid provisions. Such transfer can be annulled only on the ground mentioned herein above. The action of the respondents State of Bihar in declaring the land in question as surplus land in the name of respondent no. 4 the land holder is therefore illegal, arbitrary and unjustified. 8. This writ application is therefore allowed and the impugned Notification dated 16.4.88 issued under Section 15(1) of the said Act only so far as it relates to Plot no. 485, an area of 1.35 acres of village Medho, . P.S. Senha, District Lohardaga is quashed. The Collector of the district where the land situates is directed to initiate a proceeding under Section 5(1)(iii) of the said Act against the petitioner and decided the question whether transfer of the land in favour of the petitioner is liable to be annulled before the proceeding under section 15 of the said Act. The Collector is supposed to pass a reasoned order under section 11 of the said Act after giving reasonable opportunity of hearing to the petitioner.