The provisions of Section 16(3) of the Ceiling Act and Section 5 of the Consolidation Act are not in conflict, as both aim to prevent fragmentation of holdings.

1. This application arises out of a proceeding initiated by respondent No. 4 under Sec. 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Ceiling Act).

2. The relevant facts are as follows : On 26-8-1974, one Md. Idris (respondent No. 5) executed a sale deed in favour of petitioner No. 1 with respect to certain lands measuring 1.50 acres situated in Mouza Shahpur in the District of Katihar, for a sum of Rs. 3,500.00. Thereupon Hari Prasad Singh (respondent No. 4) filed an application for pre-emption on the ground that he was an adjacent raiyat of the vended plots. One of the points raised in defence by the petitioners was that, in view of the provisions contained in Sec. 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Consolidation Act), the provisions of the Ceiling Act were rendered inoperative. The petitioners have authorities and I find that before the Board of Revenue it was conceded on behalf of the petitioners that, in view of the last proviso brought in by Bihar Act XXVII of 1975, the provision of Sec. 4(c) of the Consolidation Act would have no application to the proceeding under the Ceiling Act. The proviso added to Sec. 4 (c) by this 1975 Act specifically lays down that nothing in this section shall apply to any proceedings under ....... the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Act XII of 1962).

3. Faced with this difficulty Mr. S.C. Ghose appearing for the petitioners advanced an argument on the basis of Sec. 5 of the Consolidation Act. Sec. 5 lays down that after the date of publication of preparation of the register of lands and statement etc. under sub-sec. (1) of Sec. 10 :

"No person 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 be, shall be subject to the rights and liabilities attached to the land under the scheme of consolidation prepared with respect to that area."

On the basis of this provision Mr. Ghose contended that inasmuch as Sec. 16(3)(iii) of the Ceiling Act empowered the Collector under the Act by an order to direct the transferee to convey the land in favour of the applicant by a document of transfer within a period to be specified in the order ........ and, on his failure, to follow the procedure prescribed in Or. 21, R. 34 of the Code of Civil Procedure, such a direction for a transfer in favour of the pre-emptor was in violation of the provisions contained in Sec. 5 of the Consolidation Act. In this connection he also placed reliance upon Sec. 39 of the Consolidation Act which provides that the provisions of this Act are to prevail over other Acts notwithstanding anything to the contrary contained in any other law for the time being in force. In view of this non obstante clause, it was contended that the direction of the Collector under the Ceiling Act was in direct conflict with the restrictions contained in Sec. 5 of the Consolidation Act and, therefore, in a case where the land was subject to a consolidation proceeding no order u/s. 16 (3) of the Ceiling Act could be passed.

4 The argument advanced by Mr. Ghose seems to be attractive and, if I may say so, ingenious but, giving a deeper thought to the provision, I do not find it possible to accept the same. The Ceiling Act is a later legislation being an Act of 1961. The legislature, therefore, must be deemed to be aware of the provisions contained in Sec. 5 of the Consolidation Act while enacting the provisions of Sec. 16(3). The non obstante clause contained in Sec. 39 of the Consolidation Act, referred to earlier, is to make the provisions of the Consolidation Act to prevail over any other Act or law to overcome any contrary provision contained therein w