IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.75 of 2009 1. PARASMANI DEVI WIFE OF LATE HARI BOL YADAV 2. RAJ KUMAR YADAV SON OF LATE HARI BOL YADAV 3. RANJEET PRASAD YADAV SON OF LATE HARI BOL YADAV, ALL RESIDENT OF VILLAGE-DANDKHORA, P.S. DANDKHORA DISTRICT-KATIHAR----- APPELLANTS Versus 1. THE STATE OF BIHAR 2. JOINT DIRECT, CONSOLIDATION, PURNEA 3. DEPUTY DIRECTOR, CONSOLIDATION, KATIHAR 4. MANOJ KUMAR YADAV SON OF LATE BALESHWAR YADAV 5. PRAMOD KUMAR YADAV SON OF LATE BALESHWAR YADAV 6. ASHOK KUMAR YADAV SON OF LATE BALESHWAR YADAV 7. REKHA KUMARI D/O LATE BALESHWAR YADAV 8. RINA KUAMRI D/O LATE BALESHWAR YADAV NOS.4 TO 8 ARE RESIDENT OF VILLAGE DANDKHORA, P.S. DANDKHORA, DISTRICT KATIHAR 9. SMT. RITA DEVI WIFE OF GANESH KUMAR YADAV VILLAGE SRI NAGAR, P.O. PANIPATRA P.S. SADAR, DISTRICT PURNEA 10. SMT. MEENA DEVI WIFE OF ARUN KUMAR GHOSH, RESIDENT OF VILLAGE NOONGARA P.O. KADWAVIASONALI P.S.KODWA DISTRICT KATIHAR--- RESPONDENTST ----------- For the appellants:-Mr. S.K.Verma,Senior Advocate For the State:-Mr. Satyabir Bharti,Assistant Counsel to Additional Advocate General No.III ------ O R D E R 2 09.02.2009 Writ petitioners - appellants aggrieved by the order dated 16th of December, 2008 passed by a learned - 2 - Single Judge in CWJC No.2739 of 1991, have preferred this appeal under Clause 10 of the Letters Patent. Short facts giving rise to the present appeal are that a registered deed of gift was executed in favour of appellant nos. 2 and 3 on 4th of April, 1985. They filed application before the Consolidation Officer for recording their names in revenue record. By order dated 29.7.1987 the Consolidation Officer acceded to their request. Aggrieved by the same, predecessor-in- interest of the respondents preferred appeal. Deputy Director of Consolidation by order dated 27th of December, 1888 set aside the order of Consolidation Officer and held the deed of gift to be void. Thereafter a revision was preferred under Section 35 of the Bihar - 3 - Consolidation of Holdings and Prevention of Fragmentation Act, 1956, hereinafter referred to as the Act, before the Director of Consolidation, which was ultimately heard by the Joint Director. He also upheld the conclusion of the Deputy Director that the deed of gift is void. Appellants aggrieved by the same, preferred writ application which has also been dismissed by the impugned order. The only point urged before the learned Single Judge was that bar created under Section 5 of the Act shall not apply in the case of deed of gift. Said contention has been rejected by the learned Single Judge in the following words:- “Within the scheme of the Consolidation Act after the notification issued under Section 3 and the bar created under - 4 - Section5, whether the transfer is by way of a registered sale or a gift deed the same is hit if no prior permission is obtained from the consolidation authority. There is categorically finding both by the appellate authority as well as the revisional authority that the consolidation proceeding was on and there was a requirement to obtain permission. Failure to do so would have the consequence.” When the matter is taken up, Mr. S.K.Verma, Senior Advocate, appearing on behalf of the appellants contends that previous sanction of the Consolidation Officer is not required after publication of the notification under Section 3 of the Act but is required after the date of publication of preparation of registers of lands and statement of principles under Section 10(1) of the Act. Accordingly, his submission is that learned Single Judge misdirected himself in affirming the order of Deputy Director in appeal and - 5 - that of the Joint Director, Consolidation. In support of the submission, reliance has been placed on a Division Bench Judgment of this Court in the case of Punya Mani Devi Vs. State of Bihar (2001 (4) PLJR 495) and our attention has been drawn to paragraph 8 of the judgment which reads as follows:- “From a conjoint reading of section 5 as it originally stood and as it stood after 1975 amendment it would be clear that the mischief of section 5 which got attracted upon the issuance of notification under section 3, was made effective from the date of publication of the register of lands and the statement of principles under Section 10(1) of the Act. This, however, gave rise to an anomalous situation. Whereas the transfers made after the date of notification under Section 3 but before the date of publication of the register of lands etc. under Sub-section(1) stood vitiated, after the 1975 amendment, only those transfers made after publication of the register of lands etc. under section 10(1) came within the mischief of the provision. In order to do away with the anomaly the State Government initially issued circulars but as - 6 - they were found to be inadequate, ultimately the aforesaid amendment was introduced in 1982 making the amended section 5 retrospective from the date of the notification under section 3.” There is no difficulty in accepting the broad submission of Mr.Verma that requirement of previous sanction of the Consolidation Officer is required after the publication as contemplated under Section 10(1) of the Act. However, when questioned as to the date on which such a publication was made, he does not disclose any date and contends that onus was on the respondents to satisfy that it is in breach of the provisions of Section 5 of the Act. In support of the submission, reliance has been placed on a Division Bench judgment of the Allahabad High Court in the case of Raghunandan Lal Vs. Sheodhan Das ( AIR 1953 Allahabd 594) - 7 - and our attention has been drawn to paragraph 7 of the judgment which reads as follows:- “Further, the lower Court has held that the plaintiff did not relinquish all claim to further performance of contract, and all right to compensation either for the deficiency, or for the loss or damage, sustained by him through the default of the defendant, as provided in the proviso to S. 15. This is also correct. If the plaintiff relied upon S.15, he should have satisfied the requirements of the proviso. No other point is urged.” This submission does not commend us. Undisputedly, these appellants had gone before the Consolidation authority for recording their names in the revenue records. In this background, it was for them to satisfy that the deed of gift does not come within the mischief of Section 5 of the Act. No such statement is on record to show that the deed of transfer is not hit by Section 5 of the - 8 - Act as same was executed prior to notification under section 10(1) of the Act. As pointed out above, appellants are not willing to disclose that before this Court also. Mr. Verma, then contends that the object of previous sanction of the Consolidation Officer before transfer is to prevent fragmentation of holdings and in the present case the area having been transferred is large enough i.e. 3 acres 97 decimals, it does not offend the object of the Act, and, as such, the Courts below erred in holding the date of gift to be void. We do not find any substance in the submission of Mr. Verma. Section 5 requires previous sanction of the Consolidation Officer and that having been not obtained only on the ground that it had not resulted into - 9 - Fragmentation, will not render the impugned orders to be illegal. The command of the legislature to obtain previous sanction of the Consolidation Officer, cannot be whittled down on the ground urged by Mr. Verma. We do not find any merit in this appeal and it is dismissed in limine. (Chandramauli Kr.Prasad,ACJ.) (Mandhata Singh,J.) A.Kumar