Rabindra Thakur vs The Collector and Another

S.N. Jha, J.—The Petitioner is aggrieved by the order of the Collector, Muzaffarpur, in Misc. Case No. 29 of 1989-90 holding the sale deed dated 4.7.1975 executed by late Bindeshwar Thakur and Asharfi Thakur as void for want of sanction u/s 5 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (in short ''the Act''). The order has been passed on a petition by Respondent No. 2 u/s 32 of the Act. According to the Petitioner the land in question being Orchard is beyond the purview of the Act and hence provisions of Section 5 are not applicable and the transfer deed cannot be said to be void.

The main plank of the argument is Section 2(3) of the Act. According to the counsel by reason of the provisions of Section 2(3), ''orchard'' lies outside the consolidation proceedings and, therefore are not amenable to Section 5. At the very outset, I would like to observe that Section 2 contains the definition clause and as well known, the definition clause cannot be read as substantive provisions of a statute. They can be looked into only in aid of construction of the substantive provisions.

The Act has been enacted "to provide for consolidation of holdings and prevention of fragmentation". But it is obvious that the object of consolidation cannot be achieved without first preparing the register of lands. This necessarily involves determination of the rights of the persons in the lands within the notified area. Provisions in this regard are continued in Sections 8 to 10. (upto 10E). Section 8 provides that as soon as may be, after the publication of a notification u/s 3, an up-to-date record-of-rights in respect of all lands comprised in the notified area, together with a map shall be prepared in accordance with the provisions of Chapter X of the Bihar Tenancy Act or Chapter XII of the Chotanagpur Tenancy Act or the Santhal Parganas Settlement Regulation, or the Bihar Tenants Holdings (Maintenance of Records) Act, 1973, as the case may be. Section 9 inter alia provides for preparation of register of lands and map on the basis of record of rights. Section 10 provides for objection to the entries in the registers of lands published u/s 9, decision thereon, appeals etc. After the disposal of the objection, appeals etc. a draft consolidation scheme is required lo be prepared and published under Sections 11 and 12 of the Act. The actual work of consolidation is taken up thereafter.

It is at the stage of consolidation that ''Orchards'' or the like, mentioned in different sub-clauses of the Explanation appended to Section 2(3), are to be excluded. This is evident from the bare perusal of the provision which runs as follows:

Section 2 (3). "Consolidation" includes re-arrangement of parcels of land comprised in a holding or in different, holdings for the purpose of rendering such holdings more compact.

Explanation. - for the purpose of this clause, holding shall not include the following:

(i) land which was orchard or grove in. the agricultural year immediately preceding the year in which the notification u/s 3 was issued;

(ii) land subject to fluvial action and intensive soil erosion;

(iii) such compact areas as are normally subject to prolonged water logging;

(iv) such other areas as the Director of Consolidation may declare to be unsuitable for the purpose of consolidation.

(Emphasis added)

It would be wrong to read the word "Consolidation" as synonymous with ''Consolidation Act'' and to hold that by reason of the definition of the term ''Consolidation'' Orchards lie outside the purview of the Act itself. Orchards (or the like) are excluded only "for the purpose of this clause" and for no other purpose. At least the clause does not say so.

Section 5 of the Act prohibits transfer of "any land in the notified area" by way of sale, gift, exchange or partition after publication of registers of lands and statement of principles without the previous sanction of the Consolidation Officer. A bare perusal of Section 5 leave no room for doubt that the provisions are general in nature and do not make any distinction between different types of lands. It refers to "any land". It is significant to note ''lands'' has been defined'' under Clause (9) of Section 2 to mean not only agricultural lands but also "horticultural land, Kharhur land, land with bamboo clumps, pasture land, cultivable waste land, homesteads, tanks, wells and water channels". It cannot be argued that the register of lands u/s 9 is to be prepared only with respect to, agricultural lands. In my opinion upto the stage of Section 10, that is to say, before reaching the stage of preparation and publication of Draft Consolidation Scheme, the Act applies to all types of land. It is only at the stage of consolidation, that is, to use the phraseology of the definition clause, "re-arrangement of parcels of land comprised in a holding or in different holdings for the purpose of rendering such holding or holdings more compact" that orchards, homesteads etc. are excluded. Obviously such lands cannot be "re-arranged" to make them "more compact".

The provisions of Section 9A also deserve notice in this connection. This section provides for preparation of statement of principles after considering the opinion of the Village Advisory Committee containing details of areas and lands as far as they may be determined at a particular point of time to be earmarked for habitation and for such other purposes as may be prescribed. The Consolidation Scheme is to be prepared as per the said ''statement of principles''. The statement of principles may provide for exclusion of areas/lands from the purview of the consolidation scheme apart from what has been statutorily excluded under Explanation to Section 2(3).

Having regard to the scheme of the Act I have no manner of doubt that the orchard is to be excluded only from the purview of the consolidation scheme i.e. "rearrangement of parcels of lands" and does not remain out of the purview of the general provisions of Sections 9 and 10 or, for that matter, Section 5. It may be stated here that the provisions as contained in Section 5 have been enacted so as to prevent further fragmentation of holdings-so that complications may not arise and the very purpose of the consolidation may not be defeated. For the reasons stated above, hold that the transfer of orchards falls within the mischief of Section 5 of the Act requiring sanction of the Consolidation Officer. In the instant case as admittedly the sale deed was admitted without such sanction, it will be deemed to be void u/s 32 of the Act, which provides that "the transfer of any land or fragment contrary to the provisions of this Act shall be void ...." It is noteworthy that in the section also the expression used is "any land" without making any distinction between types of land.

Counsel for the Petitioner placed reliance on an unreported decision of this Court in the case of Yogendra Singh and Ors. v. State of Bihar (C.W.J.C. No. 1352 of 1977 disposed of on 15.1.1980). In that case it was held that the Act does not apply to land which is an orchard. The finding has been recorded on the basis of provisions of Section 2(3) without noticing the other provisions of the Act. I have already stated above that the provisions of Section 2(3) are intended for the purpose of actual consolidation and cannot be the basis to hold that the general provisions of the Act regarding preparation of registers of lands etc. are not applicable. I may state here that in C.W.J.C. No. 3703 of 1995 Sitaram Singh Vs. The State of Bihar and Others, I have held that the provisions of Section 5 are applicable to ''chak out'' lands i.e. lands which have been excluded or kept out of the consolidation scheme u/s 9A of the Act.

Counsel for the Petitioner contended that the application filed by Respondent No. 2 before the Collector was barred by limitation. I do not find any merit in this contention inasmuch as any document which is void is not only void ab initio but non-est in the eye of law. It is not required to be set aside or annulled. Section 32 is intended to act as a deterrent against transfers in contravention of the provisions. It provides for imposition of a token fins upto Rs. 250/-. So far as nature and effect of the transfer is concerned, the provisions of Section 5 read with Section 32 render them void. Only a declaration to that effect is to be made for the purpose of imposition of fine. There is no question of law of limitation coming into play.

In the result, I do not find any merit in the writ petition which is, accordingly, dismissed.