IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12715 of 2011 1. Ram Bilash Sharma, 2. Bijay Sharma, Both sons of late Nand Kumar Sharma, 3. Sadhna Kumari D/o late Nand Kumar Sharma, All residents of village Chakla Maulanagar, P.O. Maulanagar, P.S. Falka, District Katihar, … Petitioners(Preemptors) Versus 1. The State Of Bihar through the Secretary, Department of Revenue, Government of Bihar, Patna, 2. The Commissioner, Purnea Division, Purnea, 3. The Collector, Katihar, 4. The Additional Collector, Land Ceiling, Katihar, 5. The Deputy Collector, Land Reforms, Katihar, … Respondents Ist Parties 6. Sunita Devi wife of Sri Pradip Kumari Modi, resident of village+P.O. Parwatta, P.S. Parwatta, District Bhagalpur (Purchaser), …. Respondent 2nd Party 7. Jagdish Prasad Chaurasiya, sonof late Chhedi Modi, resident of village Bishichak (Chandpur), P.O. Sameli, P.S. Falka, District Katihar, 8. Lalit Kumar Poddar, son of late Banwari Poddar, resident of village Chakla (Maulanagar), P.O. Maulanagar, P.S. Falka, District Katihar, … Respondent 3rd Party 9. Sri Shyamdeo Sharma, 10. Sri Gyandeo Sharma, Both sons of late Deep Narayan Tatma, Both residents of village Bishnuchak (Chandpur), P.O. Sameli, P.S. Falka, District Katihar(2nd Transferee), … Respondent 4th Parties For the Petitioners: Mr. Anil Kumar Jha, Sr. Advocate Mr. Pawan Kumar Singh,Advocate For the State: Mr. D.K. Prasad, GP VII … 2 30.08.2011 The petitioners are aggrieved by the order dated 2 27.04.2011 passed by the Commissioner, Purnea Division, as contained in Annexure 4 in the revision, which has been registered as Ceiling Appeal No. 34/2010-11, whereby he has set aside the order dated 11.11.2009 passed by the Additional Collector, Land Ceiling, Katihar, and upheld the order dated 14.03,2005 passed by the Deputy Collector Land Reforms, Katihar. The order, which is proposed to be passed in this case, requires incorporation of the facts as under:- On 13.10.1987 a sale deed was executed by one Lalit Kumar Poddar in favour of one Smt. Urmila Devi concerning the land which is in issue in the proceeding. The aforesaid sale deed was executed on 12.06.2004 and much prior to registration of the sale deed a deed of gift was executed by the vendee Smt. Urmila Devi in favour of her daughter Sunita Devi on 28.04.2011. Subsequently, after registration of the aforesaid sale deed dated 12.06.2004 an application under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be referred to as “the Act”) was filed by the applicant Nand Kumar Sharma(since deceased) before the LRDC, Katihar, who 3 had rejected the same on 14.03.2005. However, an appeal was preferred against the order passed by the original authority which was numbered as Miscellaneous Land Ceiling Appeal No. 367/2005-2006. Vide order dated 11.11.2009 passed therein the order passed by the LRDC was set aside and the donee, i.e., Sunita Devi, was directed to reconvey the land in favour of the pre-emptor. The donee moved this Court by filing C.W.J.C. No. 11310 of 2010, however, the same was disposed of on 03.12.2010 granting liberty to the petitioner to avail the provision of revision as available under section 32 of the Act. Thereafter, upon hearing the concerned parties the revisional authority had passed the order as contained in Annexure 4, which is under challenge in the present writ application. I have heard Mr. Anil Kumar Jha, learned senior counsel for the petitioners and Mr. D.K. Prasad, learned GP VII for the State. Learned counsel for the petitioners submits that the order suffers from the vice of non-consideration of the relevant facts holding that since the purchased land was reconveyed by the purchaser to her daughter not only 4 before filing of the pre-emption application but even before the registration of the sale deed concerned, the pre- emption application could not have been maintained a deed of gift. Learned counsel submits that it is obvious that the steps aforesaid had been taken by the purchaser only with a purpose to defeat the provisions of section 16(3) of the Act. It is next contended that even when the case was pending before passing of the order in C.W.J.C. No. 11310 of 2010 the land was reconveyed by respondent no. 6 in favour of respondent nos. 9 and 10 by executing a sale deed and that aspect of the matter was not disclosed. In view of the aforesaid submission the moot questions which arise in this writ application for consideration, are as to whether the pre-emption application was at all maintainable and as to whether the pre-emptor has been able to prove that the subsequent deed of gift executed by the purchaser in favour of her daughter was fraudulent and/or was created only with a purpose to defeat the provisions of the Act. From the facts of the case, it appears that the purchaser Urmila Devi had transferred the land in question in favour of her daughter by executing a deed of gift in the 5 year 2011 itself, i.e., even prior to registration of the sale deed in question. The same having been done, the pre- emption application against the subsequent transfer would not be maintainable in view of the provisions as contained in Explanation to section 16(1) of the Act, which clearly stipulates that for the purposes of this section „transfer‟ does not include inheritance, bequest or gift. That apart, the plain reading of sub-section (3) of section 16 of the Act would also reveal that the instrument which has been discussed in the Statute would in fact be a sale deed as it talks about reconveyance of the purchased land upon depositing consideration money along with solatium. By now it is well settled that the pre-emption application would not be maintainable against the transaction by way of gift. The second issue has been raised by the petitioner that the subsequent transfer was only with a purpose to defeat the provision of the Act, and, thus, the authority could have ignored it. This submission of the petitioner is noted only to be rejected in view of the fact that it is well settled that fraud or such allegation has to be pleaded and proved. The petitioners have not been able to 6 show from the records that they have been able to prove the same before the authority. Thus, the deed of gift having admittedly been executed even before the registration of the earlier sale deed, aforesaid argument would not be available to the petitioners. Lastly, it has been submitted that prior to final order passed in C.W.J.C. No. 11310 of 2010 the donee has once again transferred the land in favour of respondent nos. 9 and 10 suppressing the fact. In the opinion of this Court, it would not be of much relevance in view of the fact that it has already been held that the pre-emption application itself was not maintainable. Accordingly, in the opinion of this Court, this writ petition does not have any merit and the same is, accordingly, dismissed. SC ( Dr. Ravi Ranjan, J.)