IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2905 of 2011 MADHO CHAUDHARY SON OF HARICHARAN CHOUDHARY, R/O- VILLAGE SEMRI, P.S.- DAWATH, DISTRICT- ROHTAS. Versus 1. THE STATE OF BIHAR 2. THE DIRECTOR, CONSOLIDATION, BIHAR, PATNA. 3. THE DEPUTY DIRECTOR, CONSOLIDATION, ROHTAS AT SASARAM. 4. THE CONSOLIDATION OFFICER, DAWATH, DISTRICT- ROHTAS. 5. RAMAYAN CHOUDHARY, SON OF LATE BALDEO CHAUDHARY, R/O- VILLAGE- JAMSONA, P.S.- DAWATH, DISTRICT- ROHTAS. For the petitioner : Mr. Subhash Chandra Dubey, Advcoate For the State : Mr. Madhukar Mishra, A.C. to G.A. 9. ----------- 2 14.02.2011 Heard both sides. Petitioner questions the sustainability of order dated 30.9.2009 (Annexure-2) and 7.1.2011 (Annexure-3) passed by respondent Nos. 3 and 2 respectively. The issue concerns grant of sanction under Section 6 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act (for short ‘the Act’ ) which reads as under: “6 Procedure for sanction.- (1) A person intending to transfer or partition any land shall make an application for sanction under section 5 in the prescribed form and containing the prescribed particulars together with notices of the intended transfer or partition in the prescribed form and the process fees prescribed for the service thereof on the parties named in the application as well as for affixing copies thereof on the land, in the office of the Consolidation Officer and in such other places as may be prescribed. (2) The Consolidation Officer shall fix a date for hearing and cause the notices specifying the date to be served on the parties named in the petition by registered post or in such other manner as may be prescribed and shall also cause copies of the notice to be affixed on the land and other places referred to in sub-section (1). (3) On the date fixed for hearing or on any adjourned date the Consolidation Officer shall, - 2 - after hearing the parties and after such enquiry as may be necessary, pass such orders as he thinks fit: Provided that the Consolidation Officer shall not refuse sanction for transfer or partition of any land, except on any one or more of the following grounds, namely- (a) the prescribed particulars have not been furnished; (b) the transfer or partition is likely to interfere with the consolidation proceedings or to create a fragment; and (c) the transfer or partition will be against any provision of this Act or any provision of the tenancy law for the time being in force in the notified area: Provided further that sanction shall not be granted for the transfer of any land to any person, if after such transfer the total area of land held by him will exceed the maximum area that may be held by such person under any law for the time being in force in the notified area.“ According to the petitioner, Ram Jasan Choudhary had two sons namely Kishun Choudhary and Hari Charan Choudhary. Hari Charan Choudhary had two sons: the petitioner and one Tulsi Choudhary. It is the case of the petitioner that during revisional survey operations, entire land in question measuring an area of 1.27 Acres was recorded jointly in the names of Kishun Choudhary and Hari Charan Choudhary, the two sons of Ram Jasan Choudhary. Each of them had 63 and a half decimal of land. It is the case of the petitioner that subsequently by reason of deed of gift executed by son of one Samrajo Devi (one of the three daughters of Kishun Choudhary), he acquired right, title and interest in respect of the entire land measuring 1.27 Acres. During - 3 - consolidation proceedings, name of respondent No. 5 was recorded in respect of 63½ decimals of the subject land. Respondent No. 5 filed application seeking permission for sale. The Consolidation Officer after making inquiries found that the writ petitioner was in possession of the land and accordingly by an order dated 24.7.2009 (Annexure-1), the permission was refused. Aggrieved by the said order, respondent No. 5 preferred appeal which was allowed by the Deputy Director, Consolidation by order dated 30.9.2009 (Annexure-2). Aggrieved over the said order, the writ petitioner preferred revision before the Director, Consolidation which was considered and rejected by order dated 7.1.2011 (Annexure-3) giving rise to the present writ petition. It is submitted on behalf of the petitioner that after inquiry conducted by the Consolidation Officer, it was found that respondent No. 5 was not in possession of the land and as such the said authority was right in refusing permission to sale the land. It is submitted that by reason of different documents of sale, the writ petitioner became absolute owner in respect of 1.27 Acres of land which stood jointly recorded during revisional survey operations in the names of Kishun Choudhary and Hari Charan Choudhary (father of the writ petitioner). Section 6 of the Act provides that the authority under the Act shall refuse such permission only under the following circumstances: - 4 - (i) The prescribed particulars have not been furnished. (ii) The transfer or partition is likely to interfere with the Consolidation proceeding or to create a fragment, and (iii) The transfer or partition will be against any provisions of this Act or any provisions of the tenancy law for the time being in force for the notified area. It further provides that such sanction for transfer shall be refused, if after such transfer, the total area of land held by the holder will exceed the maximum area that may be held by such persons under any law for the time being in force in notified area. It does not appear from the order of the Consolidation Officer (Annexure-1) that permission prayed for by respondent No. 5 was refused on any of the said grounds. Revisional Court while rejecting the case of the petitioner found as under in paragraph 3 of the order: “The interest of the State of Bihar is not involved. The opposite party No. 1 to 3 are formal parties. The issue involved relates to validity of the order granting sanction for transfer of the land as provided in section 5 and 6 of the Consolidation Act. It is the established view as has been held in the case of Ram Dahin Singh versus the State of Bihar reported in 1986 PLJR -888 that none of the clauses of section 6 of the Act require an enquiry into the right, title and interest of the parties seeking the transfer and therefore order passed on such considerations will be - 5 - on grounds quite alien to the statute. In the instant case the appellate order has been assailed on ground of dispute over title. Apparently the opposite party No-4, who sought for the sanction for transfer, is the daughter’s son of the recorded raiyat Sri Kishun. Neither in the deed of gift nor in the decree of Title Suit No. 96 of 73 the related Plot No. 1028 find mention. More over some rent receipts have been brought on the record showing payment of rent by the opposite party on mutation.“ Section 6 of the Act is circumscribed by the conditions spelt out therein. The consolidation authority while exercising the said jurisdiction has only to consider that by grant of such sanction, none of the conditions set out therein is/are breached. Having considered the scope of the section invoked by the respondent No. 5 and the findings recorded by the appellate Court as well as the revisional Court, this Court does not find any merit in this application. It is accordingly dismissed. pkj (Kishore K. Mandal, J)