CIVIL WRIT JURISDICTION CASE No.8922 OF 1994 In the matter of an application under Articles 226 and 277 of the Constitution of India. ------ 1. Pandit Govind Pandey, son of late Sitaram Pandey. 2. Lal Bachi Devi, widow of late Pandit Jugal Pandey. Both residents of Village – Rajwatia, Police Station – Bagaha, District – West Champaran --------------------- Petitioners Versus 1. The State of Bihar 2. The Additional Member, Board of Revenue, Bihar, Patna. 3. The Collector of District West Champaran. 4. The Sub-Divisional Officer, Bagaha, District-West Champaran. 5. Hiralal Sah son of late Jugal Sah, resident of village Chakhani, Police Station – Bagaha, District – West Champaran. -------------------- Respondents For the petitioner : Mrs. Mallika Mazumdar For the respondents : Mr. Ajay P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI ******** A. K. Tripathi,J. Petitioners are aggrieved by the several orders which have been passed by the ceiling authorities which are contained in annexure-1, annexure-2 and annexure-4 to the writ application. Their case is that they are Purohits of one Hiralal Sah’s family and for their long association with the family in that capacity by virtue of a registered deed of gift dated 6.9.1962 Jugal Prasad Sah gifted 1 bigha, 13 kathas and 3 dhurs of land. Petitioners thereafter came in possession of the land. Necessary entries were made in the revenue records and even rent thereafter came to be paid by them. They continued to be in occupation and possession of the land without any hitch and hindrance. The problem arose when a land - 2 - ceiling case no. 4 of 1975 was initiated against the family of Hiralal Sah. It seems that family had substantial chunk of land with many family members but based on the report of the Circle Officer even the piece and parcel of land which was gifted to the present petitioners was declared as surplus by the Sub-Divisional Officer, Bagaha. Appeal came to be filed against the order in question contained in Annexure-1 by other family members of Hiralal Sah which included appeal even by these petitioners. But then all the appeals were dismissed on the ground that appellants were dilly dallying and not producing the necessary records and were trying to delay the distribution of surplus land and therefore appeals were dismissed on this ground alone. The legal battle therefore traveled to the Board of Revenue where a petition under section 32 of the Ceiling Act came to be filed while invoking the revisional jurisdiction. 2. The Court is not concerned with the issue with regard to the branch relating to Hiralal Sah. The matter is confined to the present petitioners who are before this Court. They are aggrieved because none of the authorities below considered their case independent of their claim and assertion and even the Additional Member, Board of Revenue in his order in gross violation of the provisions of the settled law on this issue contained in section 5 (iii) of the Ceiling Act has clubbed the land in question with the land of Hiralal Sah’s family and declared it as surplus. 3. Learned counsel for the petitioners submits that she is - 3 - not quarrelling with regard to the power which the legislators have given to the Collector in this regard but the parameters under which such powers have to be exercised more so under section 5(iii). There has to be some kind of enquiry to find out whether the transfer of the land by a landholder, whether registered or otherwise has been made with an object of defeating the Act and whether the same is in contravention of the provisions of this Act. It further states that they have to also enquire whether the said transaction is a sham, benami and farji transaction. Only when such finding is recorded, an order of annulment against the said transfer could be made and thereafter the consequences will follow. Not only this, any instrument more so if it is registered, does not have to be annulled merely because the same was executed prior to the amending Act which came into force on 9.9.1970 or the original Act when it came to effect on 19.4.1962. There is some grace period also provided in the original Act and the present registered deed of gift is supposed to relate to 6.9.1962. Under these circumstances, the transfer of land by the original landholder in favour of the present petitioners even by way of registered deed of gift cannot be brushed aside lightly. In this regard reliance has been placed on a decision which has been rendered in the case of Kashi Singh Vs. The State of Bihar, 1995 (1) PLJR 819. A similar view has also been expressed in an earlier decision rendered by a Division Bench of this Court in the case of Deosagar Singh Vs. State, 1979 BBCJ 589. - 4 - 4. Keeping in view the provision of law as well as interpretation given to section 5(iii) of the Act in the two decisions noted above, the Court has no hesitation in recording that at no point of time any exercise had been carried out either by Sub- Divisional Officer cum Ceiling Authority or the Collector in appeal in this regard. There is no finding recorded in so far as the claim or the case of the petitioners is concerned. If no finding has been recorded and the gift deed has not been annulled while exercising power under section 5(iii) then it is not understood as to how land in question has been ordered to be declared surplus in the hands of the original land holder. The Court does notice that the case of the petitioners has been dealt with by Additional Member, Board of Revenue in the revisional order contained in annexure-4 but here also only a passing reference has been made with regard to the nature of the said gift deed but that by itself may not be enough to annul a registered gift deed and club the land in the hands of the original land holder and declare it as surplus. 5. If the mandate of law has not been followed by the authorities in question then the Court has no option but to interfere with the orders impugned. The impugned orders contained in annexures 1, 2 and 4 in so far as it relates to the present petitioners are hereby set aside. The matter is remanded back to the authorities that they shall enquire into the matter after giving notice to the petitioners afresh, record a finding in this regard in terms of section 5(iii) and thereafter pass an appropriate order - 5 - based on the findings. 6. The writ application stands allowed. There will be no order as to cost. (Ajay Kumar Tripathi, J) Patna High Court: The 11th November, 2008. R K Pathak (NAFR).