ASHOK KUMAR PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) BY the ORDER :under appeal the writ court has dismissed the writ petition filed by the appellants challenging the original ORDER :passed by the Addl. Collector, Sitamarhi dated 22nd December, 1995 in Land Ceiling Case NoA/75 after the case was reopened by the Collector of the District under Section 45B of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act. 1961 (hereinafter referred to as the Act) the appellate ORDER :dated 3.6.1996 passed by the Collector, Sitamarhi, the Revisional ORDER :dated 26.12.1997 passed by the Additional Member, Board of Revenue as well as statement of publication dated 5.1.1996.

(2.) THE first point urged before the writ court was that in terms of Section 2(g) of the Act the lands covered by two deeds of usufructuary mortgage both dated 11.2.1968 should have been excluded from the land of the land -holder, although admittedly the said mortgaged lands were sold and transferred in favour of the mortgagees in August, 1972 i.e. after 9.9.1970, the appointed date for determination of ceiling area under the Act. The said contention was rightly negatived by the learned writ court. Section 2(g) of the Act while defining the term "land -holder" provides that this term means a family as defined In the Act holding land as raiyat or as under raiyat or mortgagee of land in possession of holding land permanently settled by the government or the lessee of land resumable by government. The aforesaid provision does not help the case of the appellants because the terms '''landholder" by itself does not seek to create any title or ownership in a mortgagee. It only defines land -holder against whom a proceeding under the Act may commence. Section 5. of the Act provides that it shall not be lawful for any family to hold land in excess of the ceiling area and the explanation to Section 5(1) clarifies that all lands "owned" or held individually by the members of family or jointly by some or all of the members of such family shall be deemed to be owned or held by the family. The aforesaid Section uses the term "owned" and, therefore, it clearly conveys that ceiling law has to apply to all lands owned or held by a family.

(3.) THE concept of ownership or title is well known and it is also well settled in law that a mortgage does not divest mortgager of title in the land mortgaged. Further as noticed earlier admittedly the lands under mortgage were subsequently and after the appointed date transferred in favour of the morgagees. Hence, it has been rightly held by the learned writ court that such lands will be deemed to have been selected by the land -holder within its ceiling area in terms of Section 9(2) of the Act.