Mosst. Gudhani Devi and Others vs State of Bihar and Others

S. Ali Ahmad, J.—The dispute in this case is with respect to 8 decimals of land appertaining to plot No. 127 situate in village Asoi Raghu within the Goraul Police Station in the district of Vaishali.

By the orders as contained in Annexures 4, 5, and 6, this land has been directed to be recorded in the name of Respondent No. 4, The petitioner therefore, has come up to this Court praying to quash the aforesaid orders as contained in Annexures 4, 5 and 6.

The land in question, undisputedly, was the gairmazarua land of the then landlord. According to the petitioner he took a settlement by payment of rent and grant of receipt accompanied by delivery of possession some time in the year 1930. It is said that since then he is in possession of the same and his name was also recorded in the revisional survey. It is said that when the draft publication was made by the Consolidation authorities u/s 10(1) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as ''the Act'') then his name appeared in the land Register prepared u/s 9 (1) and was published u/s 10(1) of the Act. An objection to this publication was made by Respondent No. 4. The Consolidation Officer allowed |the 3 objection by his order dated 17-5-1976 as contained in ''? Annexure-4 wherein, inter alia it is said that neither the petitioner nor Respondent No. 4 could prove his title but since Respondent No. 4 was not in possession of the land in question therefore, his objection was allowed. Against this order, an appeal was preferred before the Deputy Director of Consolidation (Respondent No. 2) who dismissed the appeal on 24-7-1978 by the order as contained in Annexure 5. The matter was then referred to the Director of Consolidation by way of revision and the Joint Director of Consolidation upheld the orders passed by the Consolidation Officer and the Deputy Director of Consolidation by his order dated 26th May. 1980 (Annexure-6). Thus the prayer of the petitioner, as said earlier, is to quash these orders,

learned Counsel, in support of the application, urged that the only basis for allowing the objection of Respondent No. 4 was that according to the authorities. Respondent No. 4 was not in possession of the land in question. learned Counsel urged that according to the survey entry, the petitioner held the land as raiyat. The learned Counsel further says that in absence of any proof that the entry was incorrect, the authorities acted illegally in allowing the objection filed by Respondent No. 4. learned Counsel for Respondent No. 4, on the other hand, urged that in fact the petitioner had not taken settlement of the land in question as alleged by him. According to the learned Counsel, the land was settled by the outgoing landlord, in favour of one, Sawmi Mian, from whom he (Respondent No. 4) has purchased the land. I do not wish to make any comment on this aspect of the matter. But the position is clear, an entry in the survey record of right carries all presumptive value and, therefore, if Respondent No. 4 had to succeed, it was obligatory for him to prove his case.

learned Counsel for the Respondents, however, says that the authorities have illegally not considered his (Respondent No. 4''s). case on merit on the ground that the sale deed dated 4-7-1972 with respect to the land in question executed in his favour did not convey any title because the same was without sanction as provided u/s 5 of the Act. When the sale deed in question was executed, Section 5 of the Act, as it then stood, required sanction with respect to the alienation after the notification u/s 3 of the Act was made. But this Section was amended by Act 27 of 1975, By this amendment, sanction was required in cases in which alienation was made after the publication of u/s 10 (.) of the Act was made. There was yet another amendment when Sub-section (2) was added to Section 5 the Act by Act 35 of 1982. By this amendment, the provision of sub-Section 3 of the Act was made effective from the date of notification under Sub-section (1) of Section 3 of the Act. That means that Sub-section (1) of Section 5 of Act, as it now stands, has been given retrospective effect and Section 5 which stood prior to the amendment of Act 35 of 1982 was also retrospectively repealed.

There was some argument at the Bar as to whether the effect of Sub-section (2) of Section 5 of the Act is to give retrospective effect to Sub-section (1) of Section 5 of the Act and also to retrospectively repeal Sections which stood prior to Act 35 of 1982. Having considered the matter at some length, I am of the view that Sub-section (2) of Section 5, as it stands today, has been given retrospective effect and Section 5 which stood prior to Act 27 of 1975 has been retrospectively repealed because if this is not done then the same transaction may be void being in violation of Section 5 of the Act which now stands repealed by it will be valid and convey good title by virtue of Section 5 of the Act as it stands today. This certainly would not have been the intention of the legislature. The position, therefore, is now that it cannot be said that the two sale deeds dated 4-7-1972 executed in favour of Respondent No. 4 were void. The authorities will have to consider as to whether the vendees of Respondent No. 4 had title to convey to him or not.

In this view of the matter, the application is allowed and the order as contained in Annexures 4, 5 and 6 are set aside and the case is sent back to the authorities for re-consideration in accordance with law. There shall be no order as to costs.

learned Counsel for the parties agree that the matter should be disposed of at an early date by the authorities. They, therefore, agree that they shall appear before the Consolidation Officer on 15-5-1985.