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2010 DIGILAW 608 (JHR)

State of Jharkhand v. Sheikh Manir

2010-05-17

PRASHANT KUMAR, SUSHIL HARKAULI

body2010
JUDGMENT This L.P.A. challenges the final order dated 31.10.2002 passed by a learned. Single Judge of this Court in C.W.J.C. No. 2214 of 1994(R)* by which the writ petition was allowed. 2. The facts relevant for the decision are that certain land was transferred to the respondent no. 1 herein out of a large holding by the respondent no. 4 of the writ petition by a registered deed dated 26.5.1973. 3. Although, it has been held" by the learned Single Judge that this transfer took place before the commencement of the proceedings under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, but it appears from facts brought on record by the counter affidavit in the writ petition that the ceiling proceedings began in the year 1970, when the said respondent no. 4 of the writ petition was called upon to file his return in respect of his holding. In fact the counter affidavit states that the land holder (respondent no. 4) appeared before the authority in response to the notice in 1972 itself and sought time. 4. As the law stood at the relevant time, the Act prohibited under Section 5 (1)(ii) the transfer of land by a land holder, holding land in excess of the ceiling limit, to transfer any land without permission in writing of the Collector. 5. Admittedly, the transfer deed dated 26.5.1973 was without such permission and was thus in contravention of the provisions of the Act. Further, it appears from the amount of land declared surplus in the hands of the original land holder i.e. respondent no. 4 of the writ petition that the said land holder was holding land far in excess of the ceiling limit. 6. The petitioner, who is the purchaser under the transfer deed dated 26.5.1973, filed the C.W.J.C. Case No.2214 of 1994 alleging that he had not been heard by the competent authority before determining the surplus land in the hands of his transferrer. The defence in the counter affidavit is that the transfer took place during ceiling proceedings and no intimation of the transfer was given to the competent authority because of which the purchaser could not be heard. 7. The defence in the counter affidavit is that the transfer took place during ceiling proceedings and no intimation of the transfer was given to the competent authority because of which the purchaser could not be heard. 7. The learned Single Judge has set aside the notification dated 16.04.1988 issued under Section 15(1) of the Act on the grounds: (i) That the purchaser was not heard by the ceiling authorities; and (ii) That there was no finding recorded by the Collector annulling the transfer dated 26.05.1973 on the ground that either the transfer was made with the object of defeating the Act or in contravention of the provisions of the Act or for retaining the land as Benami. 8. For ready reference the provisions of Section 5 (1)(ii)& (iii) which are relevant, are reproduced below as they stood at the relevant time: "5(1)(ii) No land holder holding land in excess of the Ceiling area shall, from the commencement of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1972, and till the publication of the notification under Section 15, transfer any land held by him except with the previous permission in writing of the Collector, who may refuse to give such permission if he is satisfied for the reasons to be recorded in writing that the transfer is proposed to be made with a mala fide intention of defeating the object of this Act. (iii) The Collector shall have the power to make enquiries in respect of any transfer of land by a land holder whether made by a registered instrument or otherwise, made after the 22nd day 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 this Act or for retaining, benami or farzi land in excess of the ceiling area, the Collector may after giving reasonable notice to the parties concerned to appear and be heard, annul such transfer and thereupon the land shall be deemed to be held by the transferer for the purposes of determining the ceiling area he may hold under this Section." 9. The undisputed facts before the learned Single Judge and before us are as follows: (i) The original land holder was holding land far in excess of the ceiling limit; (ii) He transferred the land in question in favour of the petitioner on 26.5.1973 during the pendency of the ceiling proceedings; (iii) No permission for such transfer was taken in writing from the Collector. 10. Thus, it is clear and undisputed that the transfer was made after the appointed date in contravention of the Act. 11. Transfer after the appointed date in contravention of the Act is sufficient for annulling/ignoring the transfer and even if we find that technically the Collector has not recorded the finding to that effect, this at best remains a mere formality and technicality. The lack of hearing to the writ petitioner by the ceiling authorities therefore, cannot possibly make any material difference to the decision in view of the facts found above. 12. There is no dispute that transfer made after 22nd day of October, 1959 in contravention of the provisions of the Act by itself, is sufficient for annulling the transfer and it does not appear that if such transfer has been done, the Collector has any option except to annul the same. 13. In the circumstances, we are of the opinion that in the discretionary• jurisdiction of this Court, it was not permissible for the learned Single Judge to set aside the notification dated 16.4.1978 on a mere technicality which, on the face of it, could not possibly have made any material difference to the ultimate decision by the ceiling authorities, in view of the facts and laws which are quite clear on the point. We therefore allow this appeal and set aside the impugned judgment of the learned Single Judge. The appeal is allowed as above.