LAL BABU GIRI Vs. STATE OF BIHAR

JUDGEMENT

(1.) C .W.J.C. No. 13285 of 2005 was preferred by Respondent no.5, aggrieved by the order of the Member Board of Revenue dated 30.8.2005 allowing the pre-emption application by the Appellant under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling area and Acquisition of Surplus land ) Act, 1961 (hereinafter called the Act). The writ application was allowed dismissing the pre-emption application filed by the appellant.

(2.) RESPONDENT No. 10, indisputably brother of the Appellant, executed a sale deed on 24.07.1996 in favour of respondent nos. 6 to 9 for 1 katha and 14 dhurs of land situated in khata no. 27, plot nos. 932 and 933, Village- Mubarakpur, P.S. Marhawarrah, District- Saran. The Sale deed was registered on 17.03.1998. A Gift deed was subsequently executed by the latter 24.9.1996 in favour of 'Deity' Sri Shanker Jee through respondent no.5 as the Shebait. The latter deed was also registered on 17.03.1998. The Appellant based on the claim for being a co sharer and adjoining raiyat of the vended lands filed a preemption application under Section 16 (3) of the Act on 13.4.1998 registered as land Ceiling case no.2 of 1998/99. Respondent no.5 was impleaded as respondent no.6, but the 'Deity' was not impleaded. No challenge was laid out to the Gift deed much less did the pleadings refer to the same. The challenge was only to a sale deed registered on 17.3.1998 in favour of other than the co sharer. An amendment application was filed on 12.12.1998 challenging the Gift deed stated to be in favour of respondent no.5, making no reference to or impleading the 'Deity'. The Vendees appeared and contested the pre-emption which was allowed by the DCLR on 09.07.1999. The Appeal by respondent nos. 6 to 9 before the Collector upset the order of the DCLR. The Appellate order was challenged by the Appellant before the Member, Board of Revenue which was allowed leading to the writ application.

(3.) LEARNED counsel for the Appellant submitted that prior to the execution of the Gift deed on 24.09.1996, Miscellaneous Land Ceiling Case No. 01 of 1996-1997 under Section 37 of the Act as it then stood before it was deleted, had been instituted on 18.9.1996 by the Appellant for restraining respondent nos. 6 to 9 from transferring the Lands in question. Orders for status quo were passed on 21.09.1996 and acceptance of notice refused by respondent nos. 6 to 9. The subsequent transfer contrary to the restraint order was invalid without further more. The fact that Section 37 was repealed on 26.12.1997 will not lend validity to the Gift deed executed at a time when a valid restraint order was operative. The Writ Court committed error of record in holding that the Gift deed was not challenged in Land Ceiling case no.2 of 1998/99 and respondent no.5 not impleaded. It has vitiated the entire consideration by the Writ Court.