CIVIL WRIT JURISDICTION CASE No.8354 OF 1991 (In the matter of an application Under Articles 226 and 227 of the Constitution of India) ********* 1. SRI PRAMOD KUMAR SHARMA, Son of Sri Kedarnath Sharma, resident of Village Suratpur, P.O.& P.S. Mahua, District-Vaishali. ------------Petitioner Versus 1. The State of Bihar. 2. The Collector, Vaishali. 3. The Consolidation Officer, Mahua Hajipur, District-Vaishali. 4. Sri Bishwanath Rai. 5. Sri Sital Rai. 6. Sri Gopal Rai. All Sons of Late Ram Saran Rai. Resident of Village Sadapur Mahua, P.O. & P.S. Mahua, District-Vaishali. 7. Sri Kedar Nath Sharma. 8. Sri Shambhu Nath Sharma. Both Sons of Late Mauji Lal Sharma Resident of Village-Suratpur, P.O.& P.S. Mahua, District- Vaishali. ---------------Respondents with CWJC No.162 oF 1993 1.BISWA NATH RAI. 2. Sital Rai. 3. Gopal Rai. All Sons of Ram Saran Rai. Resident of Village-Sadapur Police Station-Mahua District- Vaishali ----------------Petitioners Versus 1. THE COLLECTOR, VAISHALI AT HAJIPUR. 2. Pramod Kumar Sharma son of Kedar Nath Sharma. 3. Kedar Nath Sharma. 4. Shambhu Nath Sharma Both sons of Late Mauzi Lal Sharma All resident of Village Suratpur Police Station-Mahua District-Vaishali ---------------Respondents. ********* For The Petitioner in C.W.J.C. No. 8354/1991 : Mr. Harish Kumar, Adv. For the Respondents :- Mr. Naresh Chandra Verma, Adv For the Petitioner in C.W.J.C. No. 162 of 1993 :- Mr.Naresh Chandra Verma, Adv. 2 For the Respondents:- Mr. Harish Kumar, Adv. ********* P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN ********* Sheema Ali Khan, J. These two writ applications have been filed challenging the order dated 10.7.1991 by which the Collector has revived the earlier orders contained in Annexure-1 and 2 dated 2.1.1984 and 31.5.1989. The order dated 2.1.1984 has been filed on behalf of the Petitioner Pramod Kumar Sharma challenging the sale deed dated 15.10.1982 executed by grandfather of the petitioner in favour of respondent nos. 4 to 6 (petitioners of C.W.J.C. No. 162 of 1993). The contention on behalf of the petitioner Pramod Kumar is that the sale deed dated 15.10.82 has been executed in contravention of Section 5 of the Bihar Consolidation of Holdings & Prevention of Fragmentation Act, 1956 (hereinafter referred to as the ‘Act’). The lands which have been transferred in favour of respondent nos. 4 to 6 in R.S. Plot No. 16, Khata No. 35 are situated in village Suratpur, P.S. Mahua District- Vaishali. Dissatisfied with the order and fine the respondent nos. 4 to 6 filed a review application which has rejected on 31.5.1989, again the review application was filed by the respondent 3 which was allowed on 10.7.1991. 2. The main question in this writ application is whether the respondent nos. 4 to 6 (petitioners of C.W.J.C. No. 162 of 1993) required permission before the executing sale deed dated 15.10.1982. The contention of Pramod Kumar is that there is no provision of review under the Act and as such the order dated 10.7.1991 is without jurisdiction and has to be set aside. I have no qualms in holding that there is no provision for review under the Act, the aggrieved party had a right to challenge the order dated 2.1.1984 passed by the Collector cancelling the sale deed by filing writ in this Court. Subsequently, to filing the writ, respondent nos. 4 to 6 have come to this Court challenging the order dated 2.1.1984 as well. Both matters are being heard together. 3. The contention of the petitioner is that the village in question was earlier notified in the year 1972. In the mean time in 1975 certain amendments were made in the Act with respect to Section 5 of the Act. Section 5 of the Act came before the amendment under the old Act. It was not essential that statement of principles under Sub Section (I)of Section 10 were to be published before 4 Section 5 came into play, it read as follows:- “After the date of publication of preparation of “register of lands and statement of principles under Sub Section (I) of Section 10 no persons shall transfer any land in the notified area by way of sale, gift, exchange or partition without the previous sanction of the Consolidation Officer and if the sanction is granted, such transfer or partition, as the case may, shall be, subject to the rights and liabilities attached to the land under the scheme of consolidation prepared with respect to that area” Sub-Section 2 provides that the provision shall be effective from the date of the notification under Sub Section 1 of Section 3 of the Act. 4. The collector by the impugned order dated 2.1.1984 in C.W.J.C. No. 162 of 1993 has held that since the village was notified in the year 1972, there was no requirement for publication of statement under Section 10 (1) and as such the petitioner and the vendor had to take permission before selling his lands. It has been concluded by the Collector that subsequent notification of the village in the year 1975, would in fact not effect the case of the writ petitioner of C.W.J.C. No. 162 of 1993, as they would be covered by the old provision under the unamended Act, wherein there was no requirement of publication of draft statement for the purposes invoking Section 5 of the Act. 5. Learned Counsel for the petitioners 5 refers to a decision of Punya Mani Devi & Others vs. The State of Bihar & Others (2001 (4) PLJR 495), while considering the provisions of Section 5 and its applicability after the amendment of the section made by the Act 27 of 1975, this Court come to the conclusion, which is quoted below:- “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 anamolous 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 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. It must be clarified that the effect of the said amendment was not to extend the bar to the date of notification under section 3 but only to extend the applicability of section 5 as it stood after 1975 amendment, to the date of section 3 notification. In other words, in all cases, the bar contained in section 5 was to apply uniformally from the date of publication of register of lands and statement of principles under section 10 (1).” 6. On the plain reading of the aforesaid judgment, it would appear that Section 5 of the Act was to apply retrospectively from the date of publication of notification. It is not the case of Biswa 6 Nath Rai that the provisions of Section 5 would not apply in his case, rather it is contended that Section 5 would apply, provided that the publication of register of lands and statement of principles has been made for the area in question. The Collector, has rejected the claim on the ground that under the unamended section, there was no requirement for publication of register of lands or statement of principles, as such it was necessary to apply for permission. The Legislature intended that the section would apply retrospectively, but at the same time, it would be essential that the applicability, would envisage the fulfillment of the conditions mentioned in Section 5 of the Act. 7. In my opinion the finding of the Collector is erroneous. Once the village has been denotified and again notified after amendments in the act, amended provisions of the Act would be applicable in a particular case. Therefore, it would be important to determine the date of notification after the amendment was made, before holding that the sale deed dated 15.10.1982 is void as per Section 32 of the Act. 8. In the result I quash the order dated 2.1.1984, 31.5.89 and 10.7.91 and remand the 7 matter back to the Collector, Vaishali to decide the matter, after examining the records to determine the date of notification of the village, which according to the petitioner was on 6.9.1975, and thereafter examine whether permission was required by the vendor before he could have executed the sale deed in favour of respondent nos. 4 to 6 (petitioner of C.W.J.C. No. 162 of 1993) after examining the case of Punya Mani Devi Supra and comparing the provisions of the amended Section 5 of the Act with the provisions of Section 5 of the Act before the Amendment. 9. This writ application is disposed of with the aforesaid observations and directions. Patna High Court Dated 9th November, 2010 Anand Kr./NAFR (Sheema Ali Khan, J.)