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2007 DIGILAW 426 (PAT)

Anirudh Pandey v. Markandey Rao

2007-02-26

CHANDRAMAULI KR.PRASAD

body2007
Judgment 1. Defendant-petitioner, being aggrieved by the order dated 30.12.2005 passed by the Subordinate Judge, Bagaha, West Champaran in T.S. No. 38 of 2005 rejecting the application filed by it under Section 4 (b) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, has preferred this application. 2. Plaintiff filed the suit for declaration of title and confirmation of possession, inter alia, stating that the land in dispute was not suitable for agricultural purposes and accordingly, their predecessor-in-inter- est planted 18 Mango trees and other trees about 35 years earlier. Defendant appeared and filed application under Sec. 4(b) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, (hereinafter referred to as the Act), contending that the suit is not fit to be entertained. It was averred that the suit land falls within Ram Nagar Anchal in the district of West Champaran, which is duly notified under Sec. 3(1) of the Act for Consolidation of Holdings. By reason of the impugned order said prayer has been rejected on the ground that the suit property being an orchard is not subject matter of Consolidation. 3. Mr. Sashi Shekhar Dwivedi, Senior Advocate appearing on behalf of the defendant-petitioner submits that orchard is excluded for the purpose of Consolidation and for no other purpose, hence suit in respect of such property is not fit to be entertained. He submits that such suit may not abate under Sec. 4(c) of the Act but suit shall not be maintainable in view of Section 4(b) of the Act. In support of his submission he has placed reliance on a judgment of this Court in the case of Rabindra Thakur Vs. Collector (1995(2) PLJR 710) and my attention has been drawn to paragraph 7 of the judgment which reads as follows :- "Having regard to the scheme of the Act I have no manner of doubt that the orchard is to be excluded only from the purview of the consolidation scheme i.e. "rearrangement of parcels of lands" and does not remain out of the purview of the general provisions of Sections 9 and 10 or, for that matter. Sec. 5. It may be stated here that the provisions as contained in Sec. 5 have been enacted so as to prevent further fragmentation of holdings so that complications may not arise and the very purpose of the consolidation may not be defeated. Sec. 5. It may be stated here that the provisions as contained in Sec. 5 have been enacted so as to prevent further fragmentation of holdings so that complications may not arise and the very purpose of the consolidation may not be defeated. For the reasons stated above, I hold that the transfer of orchards falls within the mischief of Sec. 5 of the Act requiring sanction of the Consolidation Officer. In the instant case as admittedly the sale deed was admitted without such sanction, it will be deemed to be void under Sec. 32 of the Act, which provides that "the transfer of any land or fragment contrary to the provisions of this Act, shall be void......." It is noteworthy that in the section also the expression used is "any land" without making any distinction between types of land." 4. Mr. Ram Adya Singh, appearing on behalf of the plaintiffs-opposite party, however, contends that orchard not being the subject matter of Consolidation as conceded by petitioner itself, suit cannot be dismissed on the ground that it is not maintainable. In support of his submission reliance has been placed on a Division Bench judgment of this Court in the case of Mt. Pachiya Devi & others Vs. Bishundeo Prasad Singh & Others (1985 PLJR 989) and my attention has been drawn to paragraph 9 of the judgment which reads as follows:- "From the object and the scheme of the Act, it is manifest that a notification under Sec. 3 of the Act is to effect consolidation of holdings for the purpose of better cultivation of lands in any area and to make a scheme for consolidation of holdings in that area. The definition of the words consolidation is to make a holding more compact. Orchard, however, has been excluded for the purpose of such compactness. Abatement of a suit, appeal or revision is contemplated under Sec. 4(c) upon the publication of the notification under sub-section (1) of Sec. 3. Such proceedings for the correction of record and such suits in respect of declaration of rights or interest in any land lying within the notified area or for declaration or adjudication of any other right in record to which proceedings can or ought to be taken under this Act are to abate. Such proceedings for the correction of record and such suits in respect of declaration of rights or interest in any land lying within the notified area or for declaration or adjudication of any other right in record to which proceedings can or ought to be taken under this Act are to abate. Therefore, the question which immediately crops up is whether a proceeding for consolidation can or ought to be taken with respect to an orchard? The proceeding within the object of the Act is consolidation of holdings. Since a holding does not include an orchard, there can, therefore, be no consolidation of it. The proceeding under the Act can or ought to be taken to effect consolidation of holdings for the purpose of better cultivation of lands. We are of the opinion that this purpose is not served in relation to an orchard, as such, neither the suit nor the appeal abates under Section 4(c) of the Act. The preliminary point of the appellants, therefore, fails." 5. The submission advanced necessiates examination of the scheme of the Act. Sec. 4(b) of the Act which is relevant for the purpose reads as follows:- "4. xxxx xxxx xxxx (b) no suit or other legal proceeding, in respect of any land in such areas shall be entertained in any Court, and in calculating period of limitation applicable to such suits and proceedings such period shall not be counted: Provided that nothing in this clause shall apply to any proceeding under Sec. 48(E) of the Bihar Tenancy Act 1885 (Act 8, 1885) and to the proceedings relating to recording the titles of Bataidars: 6. From a plain reading of the aforesaid provision, it is evident that no suit or other legal proceeding in respect of any land in a area where the State Government had notified its intention for Consolidation of Holdings shall be entertained in any Court. Sec. 2(3) of the Act defines Consolidation and it means arrangement of parcels of land comprised in a holding or in different holdings for the purpose of rendering such holdings more compact. By virtue of Explanation I to the said Section, it is evident that the land which is orchard or grave in the agricultural area immediately preceding the year in which the notification under Sec. 3 was issued shall not come within the definition of holding and therefore not subject to Consolidation. By virtue of Explanation I to the said Section, it is evident that the land which is orchard or grave in the agricultural area immediately preceding the year in which the notification under Sec. 3 was issued shall not come within the definition of holding and therefore not subject to Consolidation. However, Sec. 3(9) of the Act defines land to mean agricultural land, and includes horticultural land, kharaur land, land with bamboos clumps, pasture land, cultivable waste land, homestead, tanks, wells and water channels. 7. In my opinion, when the suit in relation to the orchard, according to the submission of Mr. Dwivedi will not abate under Sec. 4(c) of the Act, I fail to understand as to now a suit filed in respect of such land shall not be maintainable. 8. From the object and scheme of the Act, it is evident that a notification under Section 3 of the Act is to effect Consolidation of Holdings for the purpose of better cultivation of land in a area and to make a scheme for consolidation of holdings in that area. The definition of the words "Consolidation" is to make holding more compact, orchard however, is excluded for the purpose of such compactness. The purpose of consolidation, as stated earlier is to effect consolidation of holdings, I am of the opinion that this purpose is not served in relation to an orchard and, as such, the suit cannot be dismissed on the ground that it is not entertainable in the light of Section 4(b) of the Act. 9. In view of aforesaid, the submission advanced by Mr. Dwivedi has no substance and it is rejected accordingly. 10. In the result, I do not find any merit in the application and it is dismissed accordingly with no order as to cost.