Dwarika Ahir @ Dwarika Yadav vs The State Of Bihar
2023 Latest Caselaw 4232 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Letters Patent Appeal No.134 of 2020
                                      In
                Civil Writ Jurisdiction Case No.16751 of 2019
     ======================================================

1.1. Siyaram Yadav Son of Late Dwarika Ahir @ Dwarika Yadav Resident of Village and P.O.- Mahadah, P.S.- Buxar (M), District- Buxar. 1.2. Rajaram Yadav, Son of Late Dwarika Ahir @ Dwarika Yadav Resident of Village and P.O.- Mahadah, P.S.- Buxar (M), District- Buxar. 1.3. Rameshwar Yadav, Son of Late Dwarika Ahir @ Dwarika Yadav Resident of Village and P.O.- Mahadah, P.S.- Buxar (M), District- Buxar.

... ... Appellant/s Versus

1. The State of Bihar through the Principal Secretary, Revenue and Land Reform Department, Patna.

2. The Bihar Land Trinunal, Patna.

3. The District Magistrate, Buxar.

4. The Consolidation Officer, Buxar.

5. Lalan Yadav, S/o Dwarika Yadav, Resident -Mahadah, P.S. Buxar (M), District-Buxar.

6.1. Pappu Yadav S/o Late Ganga Sagar Yadav, Resident of Village-Pratapsagar, P.O.-Purana Bhojpur, P.S.-Dumraon, Distt-Buxar.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Ambuj Narayan Chaubey, Advocate For the State : Mr. Arun Kumar Bhagat, Advocate

For the Respondent/s : Mr.Md. Khurshid Alam (AAG-12) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 04-09-2023

The appellant is aggrieved with the judgment of the

Learned Single Judge, which dismissed the writ petition on the Patna High Court L.P.A No.134 of 2020 dt.04-09-2023

ground of no locus standi and refused to interfere with the order

passed by the Bihar Land Tribunal in B.L.T. Case No. 449 of

2018 on that ground and also on the ground of the gross delay of

9 years, that occurred from the date of execution of the sale-

deeds, to move the Collector.

2. The facts not in dispute are that the appellant had a

dispute on the title of the property, with the 6 th respondent. The

appellant agitated his cause up to the Hon'ble Supreme Court

and failed. The 6th respondent transferred the properties by three

sale-deeds in favour of Respondent No. 5. The sale-deeds were

executed on different dates and after about nine years the

appellant herein approached the Collector under Section 32 of

the Bihar Consolidation of Holdings and Prevention of

Fragmentation Act, 1956 ( for brevity 'Consolidation Act'). The

Collector canceled the three sale-deeds by Annexure-1 Order

produced in the writ application. The Collector in the said order

has found that the sale-deeds could not have been executed

without de-notification of the lands. The Collector, however, has

not imposed any fine under Section 32.

3. The 6th respondent approached the Bihar Land

Tribunal, which was permissible under Section 9 of the Bihar

Land Tribunal Act, 2009. The Bihar Land Tribunal allowed the Patna High Court L.P.A No.134 of 2020 dt.04-09-2023

appeal by rejecting the claim on two grounds; one of locus

standi and the other of delay in approaching the Collector. The

Tribunal set aside the order of the Collector against which the

writ petition was filed.

4. Before us the learned counsel for the appellant,

who was the writ petitioner, pointed out an earlier order of the

Division Bench which directed the parties to produce the

'Chakbandi' by which there was a prohibition on transfer of

lands as per the Consolidation Act. It is submitted by the learned

counsel for the appellant that the State may be asked to produce

such 'Chakbandi' and the publication under Section 13, if there

is any.

5. We are not convinced that there should be such a

direction, especially looking at a Division Bench decision of this

Court reported in (2015) 2 PLJR 774 Surendra Rai and Ors. v.

State of Bihar through the District Magistrate, Vaishali at

Hajipur. We specifically refer to Paragraph 15, wherein also the

order of the Collector observed that the transfer of the land had

taken before issuance of any notification under Section 26A of

the Act. The learned Judges specifically noticed that there is not

even any mention as to when the Register under Section 10 was

published or when the notification under Section 26A of the Act Patna High Court L.P.A No.134 of 2020 dt.04-09-2023

was issued. In the present case, it is an admitted fact that there

was no notification under Section 26A. However, a notification

under Section 26A is required only if there is a publication

issued under Section 13 of the Act of 1956. We specifically

extract the following from Paragraph 17 of the cited judgment :-

"An individual or authority which intends to invoke the provision under Section 5 must be able to establish the factum of publication of register under Section 10. In absence of that, the very occasion to invoke Section 5 does not arise.

6. Hence either the appellant herein or the authority

acting under Section 5 of the Act should have specifically

mentioned the notification by which the 'Chakbandi' was

created under Section 10 of the Act. The writ petitioner who is

the appellant, even now insist that the State should produce it.

The writ petitioner was not vigilant enough to produce it before

the Original Authority, the District Collector before whom he

moved under Section 5 of the Act. The Collector also did not

refer to that fact before cancelling the sale-deeds. The Tribunal

has allowed the appeal on the ground that petitioner has no

locus standi and there is gross delay in approaching the District

Collector under Section 5.

7. We are not convinced that the delay would restrict

the Collector from acting under Section 32, since there is a clear

prohibition under Section 32; which makes any transfer void ab Patna High Court L.P.A No.134 of 2020 dt.04-09-2023

initio. There is no requirement for an order from the Collector or

a declaration that the transfer is void. Section 32 without

anything more, makes a transfer, void, statutorily. The power

conferred on the Collector under Section 32 is to impose a fine;

on such a transfer being effected. The primary aspect for the

statutory prohibition to operate is not the de-notification under

Section 26A; but the publication of the register under Section 10

of the Consolidation Act.

8. The appellant cannot be non-suited on the ground

of locus standi, but he had to place the necessary facts before

the Authority. When the fact of a transfer by three sale-deeds

was brought to the notice of the authority, at least the authority

had a duty to ensure that the creation of 'Chakbandi' was

noticed in the order.

9. We cannot also ignore the fact that the appellant is

a person who had attempted to divest the 6th respondent off the

title of the property, and failed. There is an element of mischief

in his approaching the Collector under Section 32 and in that

circumstance the delay assumes relevance. The sale-deeds were

of the years 2001, 2006 and 2007 and the application under

Section 32 was in 2015. The appellant, who initiated the

proceedings under the Consolidation Act, had an additional Patna High Court L.P.A No.134 of 2020 dt.04-09-2023

responsibility to ensure that the lands were covered under the

Consolidation Act, and establish it; which he now attempts to

establish by seeking a direction to the State.

10. We find absolutely no reason to entertain the

prayer made or even the appeal. We reject the prayer and

dismiss the appeal.

(K. Vinod Chandran, CJ)

( Partha Sarthy, J) Anushka/-

AFR/NAFR
CAV DATE
Uploading Date          11.09.2023
Transmission Date