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2008 DIGILAW 98 (PAT)

Dineshwar Thakur v. State of Bihar

2008-01-17

body2008
ORDER 1. Heard Counsel for the parties. 2. The petitioners are aggrieved by the order, dated 9.7.2004 as contained in Annexure-6 whereby and whereunder the Collector, Vaishali has declared the deed of gift executed in favour of the petitioner to be void in purported exercise of powers under Section 32 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the "Act"). 3. Counsel for the petitioner has submitted that it is an admitted position that a consolidation proceedings was undertaken started in the year 1974 in terms of Section 3 of the Act, but the same had remained suspended in between 1981 to 1993 and was eventually dropped in November, 1993 by issuing a notification no. 1166 dated 2.11.1993 in terms of Section 4A (1) of the Act. He further submitted that in-that view of the matter when the work of consolidation in the village was never taken up and at least from the year 1981 everything remained suspended and eventually got cancelled, it cannot be said that the deed of gift executed in his favour by his own uncle in the year 1990 would be deemed to be against the provisions of the Act. In this regard he has also relied on the two judgments of this Court in the case of Durgawati Devi Vs. The State of Bihar & Others, reported in 1999(2) PLJR 831 and Raghvendra Singh Vs. The State of Bihar, reported in 2002 (1) PLJR 1 . 4. On the other hand, Counsel appearing for the private respondents who had filed application before the Collector after expiry of almost 12 years of execution of the deed of gift in favour of the writ petitioners sometime in 2002 for getting it cancelled, submits that it may be true that the consolidation proceedings were kept in abeyance but it cannot be said that in the period the consolidation proceedings had remained stayed at the behest of the local officers between 1981 to 1993, there was no requirement of obtaining the permission for executing a deed of gift or alienation of land in any manner. In this context, he has placed reliance on Annexure-B, a document filed by him in his counter affidavit which is a letter of the Deputy Director, Consolidation, Vaishali at Hajipur addressed to the Collector of Vaishali whereby and whereunder he had submitted a report dated 11.6.2004 when the same was called for by the latter in relation to decide the proceedings in question wherein it was stated in the concluding portion that though there was requirement for obtaining permission for alienation of land prior to 1993, as per law but for all practical purposes in view complete of stay of consolidation operation in between 1981 to 1993 such grant of permission was not necessary. 5. Learned Counsel for the State also while adopting the arguments of learned Counsel for the private respondents has submitted that as a matter of fact there is nothing on record, to show that the consolidation proceedings had remained stayed by any order of the Government in between 1981 to 1993, and thus till the Government had cancelled the consolidation proceedings by issuing a notification dated 2.11.1993 under Section 4A(1) of the Act, the requirement in law for obtaining permission prior to execution of sale deed must be held to be existing and as such the Collector impugned in this writ application cannot be faulted with as it is an admitted fact that deed of gift in favour of the petitioner was executed in the year 1990 without getting such permission. 6. Having appreciated the aforementioned submissions, this Court is of the view that the whole purpose of giving permission for sale/alienation of land is to prevent fragmentation of land during the pendency of the consolidation proceeding. 6. Having appreciated the aforementioned submissions, this Court is of the view that the whole purpose of giving permission for sale/alienation of land is to prevent fragmentation of land during the pendency of the consolidation proceeding. It is however and admitted fact that the consolidation proceedings in this village was never implemented inasmuch as even when the proceeding started in the year 1974, the same was abruptly stopped on an objection of entire villagers whereafter the authorities came to a conclusion that it was not possible to continue with the consolidation proceedings in the village of the petitioners and as a result whereof the same was suspended under the orders of Consolidation Officer dated 5.9.1981 and infact the entire operation of work of consolidation had been kept in abeyance awaiting the Government decision and, therefore, the plea of suspension of consolidation proceedings as raised by the petitioner has its own and must be upheld in view of the connecting circumstances as explained by the Deputy Director of Consolidation in his report dated 11.6.2004, Annexure-B/6. The Deputy Director has himself explained that after 5.9.1981 when the Consolidation Officer had sent his recommendation to the Deputy Director, Consolidation, Vaishali for suspending the consolidation proceedings as well as exempting the entire village from the operation of consolidation proceedings, the practice and requirement of obtaining permission for sale/alienation of land in any manner was also completely stopped. The definite finding in this regard in the said letter of the Deputy Director on the basis of materials on record is that the entire operation of consolidation proceeding was stopped in the village in question in the year 1981 and eventually that was finally cancelled by a notification dated 2.11.1993. In that view of the matter, the dispute as raised by the private respondents after 12 years of execution of deed of gift in favour of the petitioner and that too, in presence of the aforementioned cancellation of notification dated 2.11.1993 under Section 4A(1) of the Act was itself meaningless if not frivolous. The villagers including the uncle of the petitioner cannot be held to be guilty in any manner in alienating their own land by a registered deed. In view of the admitted fact that the consolidation proceedings had never been taken up in any manner in between 1981 to 1993. The villagers including the uncle of the petitioner cannot be held to be guilty in any manner in alienating their own land by a registered deed. In view of the admitted fact that the consolidation proceedings had never been taken up in any manner in between 1981 to 1993. This aspect of the matter has infact been decided by this Court in the case of Raghvendra Singh (supra) in the following terms:- "once a notification under Section 4A(1) is issued, cancelling the notification made under Section 3 of the Act, the entire consolidation proceedings which had taken place till then stands wiped off and, therefore, the requirement of getting permission in such cases can also not be insisted upon." 7. Similar is the view of this Court in the case of Durgawati Devi where while dealing with the exactly a similar case of a deed of gift executed during the suspension of consolidation proceedings, this Court had held as follows: "There was no requirement to obtain permission for execution of deed of gift in terms of Sections 5 and 6 of the Act." 8. Thus in view of the aforementioned findings and the judgments, this Court has no hesitation in holding that the impugned order, dated 3.7.2004 declaring the deed of gift in favour of petitioners to be void ab initio cannot be sustained either on facts or in law. 9. Consequently, the impugned order dated 9.7.2004 in Case No. 54/2001-02 (Annexure-6) is hereby quashed and the writ application is allowed.