SHEO NATH SINGH Vs. K ABRAHAM

JUDGEMENT

(1.) This application under Articles 226 and 227 of the Constitution of India arises out of a proceeding under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be called 'the Act').

(2.) Plot No. 1048 appertaining to Khata No. 77, situate in village Karbasia, police station Sahar, district Shahabad, belonged to one Ramnath Singh, brother of the petitioner Sheonath Singh. Plot No. 1047 of Khata No. 78, which is situated adjacent south to plot No. 1948 belonged to the petitioner. By a deed of exchange dated the 1st of August, 1966, Ramnath Singh transferred plot No. 1048 to Bhairo Singh and Dudnath Singh (respondents 4 and 5 respectively) in exchange for plot No. 1042. The petitioner thereupon filed an application under Section 16 (3) of the Act before the Deputy Collector in charge Land Reforms for the transfer of plot No. 1048 to him on the terms and conditions contained in the deed of exchange. An objection was taken on behalf of the respondents that the petition was not maintainable as the provisions of the Act were not applicable to exchange of land. The Deputy Collector in charge Land Reforms overruled the objection and held that the provisions of the Act were applicable to a transfer by exchange. He accordingly directed that the petitioner be put in possession of plot No. 1048 having an area of 0.27 acre. A copy of the order of the Deputy Collector in charge Land Reforms dated the 30th of November, 1968, has been made Annexure 'I' to the writ application. Being aggrieved by the laid order of the Deputy Collector in charge Land Reforms, respondent Nos. 4 and 5 filed an appeal before the Subdivisional Magistrate, Arrah, and Collector under the Act The learned Subdivisional Magistrate held that the provisions of the Act did not apply to the transfer by exchange. Accordingly he allowed the appeal and set aside the order of the Deputy Collector in charge Land Reforms, Sadar, Arrah. A copy of the order of the Subdivisional Magistrate, Arrah and Collector under the Act, dated the 25th of June, 1969, has been made Annexure '2' to the writ application. Being aggrieved, the petitioner filed a revisional application before the Board of Revenue under Section 32 of the Act. The Board of Revenue agreed with the view of the Subdivisional Magistrate and held that the transfer by exchange has been excluded from the purview of Section 16 (3) (a) of the Act. The petitioner has, therefore, filed the writ application for quashing the order of the Subdivisional Magistrate and Collector under the Act (Annexure 2) and the order of the Board of Revenue dated the 17th of December, 1969 (Annexure 3).

(3.) It is not disputed that there was only one document of exchange dated the 1st of August, 1966, by which Ramnath Singh transferred plot No. 1048 to Bhairo Singh and Dudhnath Singh in exchange for plot No. 1042. It appears from the order of the Board of Revenue that the consideration money which was mentioned in the deed was Rs. 500/-. The learned Additional Member, Board of Revenue, has taken the view that the definition of 'transfer' as given in Section 5 of the Transfer of Property Act is no doubt wide enough to include transfer by exchange. But the word 'transfer' used in Section 16 (3) (i) of the Act means only transfer and not exchange, lease, mortgage or settlement. The view which the Board has taken appears to be correct for the reasons which I am going to presently state. Section 16 of the Act is headed "Restriction on Future Acquisition by Transfer". Section 16 (1) of the Act read as under: