SHIV SHAMBHU SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) By this application under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for quashing Annexures 2, 3 and , which are the orders passed by the authorities under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, (hereinafter referred to as 'the Act').

(2.) The case of the petitioner no. 3 is that he held an area of 17.90 acres of land out of which he transferred 13.58 acres of land by registered deed of gilt dated the 23rd of February, 972 to petitioner nos. 1 and 2, who were sons of his sister. The Deputy Collector, Respondent no. 4 ordered for final publication under section 11 (1) of the Ceiling Act and he found that the petitioner was entitled to have one unit according to the Act. Respondent no. 4 also ordered that petitioner no. 3 will retain 15 acres of land and 2.90 acres of land was to be declared surplus, vide Annexure. '2'. The petitioner's case is that on 23rd of February, 1972, the date on which the deed of gift was executed, the petitioner no. 3 was not holding any surplus land according to the Ceiling Act as it stood then. It was, therefore, not necessary, according to the petitioner, to take any permission from the Collector of the district. It may be stated here that the petitioner filed an appeal before the Additional Collector against the order passed by the Land Reforms Deputy Collector, Respondent no. 3. That appeals was, however, dismissed on 1st March, 1978 vide Annexure '3'. His revision application before the Member of Board of Revenue, Respondent no. 2 was also dismissed for default on 28th June, 1978 contained in Annexure 4.

(3.) Section 4 of the Original Act was substituted by a new section by an Amending Act called, Bihar Land Reforms Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment Act, 1972) which came into force on 19th May, 1973. Prior to this amendment, the ceiling area for the purpose of the Act was 20 acres of class I land. The amendment reduced the area to 15 acres of class I land from the 20 acres. Learned counsel for the petitioners placed reliance of a Bench decision of this Court in Hira Lal Sah and others v. State of Bihar and others, (1977 BBCJ 717) where it was held that the transfer of land after 9th September, 1969 without permission by the Collector is hit only where the vendor landholder holds land in excess of prescribed ceiling area on the day of transfer. So far as, the present case is concerned, it is apparent that on 23rd February, 1972 when the transfer was made by petitioner no. 3 to petitioner nos. 1 and 2, the landholder held 17.90 acres of land which was not in excess of the prescribed ceiling area according to the law in existence then. On 23rd February, 1972, petitioner no. 3, could legally transfer a part of the land to any person and was not required to take permission of the Collector. That being so the proceeding under the Ceiling Act started against the petitioner is itself illegal. It could not be held that the petitioners had 2.9 acres of land in excess of the ceiling area on the date the impugned orders were passed.