Smt. Parvti Devi vs State of Bihar and Others

Binod Kumar Roy, J.—This writ application has been filed for quashing different orders passed by the authorities, under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act (hereinafter referred to as the ''Act''), as contained in Annexures 2, 3, 4, and 5, Annexure-5 contains the order passed by the revisional authority.

Perusal of the aforementioned orders, as also the writ petition, show that the petitioners (the name of the petitioner No. 1. Dhaneshwari Kuer due to her death was expunged by order dated 3-4-91 recording that her legal representative petitioner No. 2 is already on the record) had claimed title in regard to properties in question which stood in the name of one Sudarshan Singh (father of respondent No. 8) alleging him to be their farzidar. The authorities, however, rejected the case of the petitioners. The petitioner assail the said finding as incorrect.

Mr. Shrinath Singh, learned Counsel appearing for respondents 6 and 7 raises a preliminary objection that in view of Section 4 of the Benami Transaction Prohibition Act, 1988 the plea taken by the petitioners is no longer entertainable, and the said provision having been declared retroactive by the Hon''ble Supreme Court in Mithilesh Kumar and Another Vs. Prem Behari Khare, , on the finding recorded by the authorities in that regard, this writ application is liable to be dismissed.

Mr. Shivanand Pd. Sinha, learned Counsel for the petitioner, on the other hand, submits that the said provision does not apply in this case inasmuch as the act in question came into force only in 1988 and this Court must consider the non-examination of the effect of the order passed u/s 145 Cr. PC in favour of the petitioner by the consolidation authorities.

The decision of the apex court declaring the provision of the Act being retroactive applies to all pending proceedings in my view, applies to a writ petition as well. The petitioner is thus not entitled to the reliefs claimed for inasmuch as the plea of farzi is not entertainable now.

The other qestion raised by the learned Counsel about the declaration of possession in the proceeding u/s 145, Cr. PC is of no substance as it was held merely to be a police order by the Privy Council in Dinomani Chowdhrani 29 Indian Appeals 24 which has been quoted with approval in Bhinka and Others Vs. Charan Singh, , and was not binding on the consolidation authorities like the civil courts.

In the aforementioned view of the matter this application is dismissed but without cost.