Failure to issue notice under Section 5 (1) (iii) and Section 10 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 renders the declaration of surplus land invalid. The Benami Transactions (Prohibition of the Right to Recover Property) Act, 1988 prohibits the plea of benami with effect from 19th May, 1988 and is applicable retrospectively.

B. K. Roy, S. N. Jha, JJ.

1. This writ application was filed on 21-12-1989, By an order dated 24-8-1991 notices were issued to the respondents 6 to 8 to show cause as to why this application may not be admitted and, if possible, disposed of at the stage of admission itself.

2. From the office notes it appears that respondents 6 to 8 have refused to take notice, as reported to by the process server, and that service on them is valid. Accordingly we proceed to dispose of this case on its merit at the admission stage itself.

3. The prayer of 57 petttionrs is to quash the order dated 17th March 1989 passed by the Additionai Collector Ceiling, Rohtas at Sasaram (respondent no.3) in Land Ceiling Case No.108/1976-77 as contained in Annexure-4, as well as the final publication of the draft statement under Sec.11 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of surplus Laud) Act, 1961 (hereinafter referred to as the act, as contained in Annexure-5, as also the notification under Sec.15 (1) of the Act dated the 25th July 1989, as contained in Annexure-6, by which the lands of the petitioners were treated as surplus.

4. The case of the petitioners is that the lands declared surplus are theirs. Before declaring their lands as surplus of the land holders no notice either under Sec.5 (1) (iii) and or of the draft statement prepared and published under Sec.10 of the Act was ever issued and served on them. Accordingly the declaration of their lands as of respondents 6 to 8 is void being contrary to the mandatory provisions of Sec.5 (1) (iii) and Sec.10 (3)of the Act.

5. Mr. Sharma, learned counsel for the petitioners submits that the orders/statements/notifioation as contained in impugned annexures are liable to be quashed for the simple reason that no notice was ever given to the petitioners before treating tneir lands as to respondent Nos.6 to 8. In view of the provisions of the Benami Transactions (Prohibition of the Right to recover Property) Act, 1968, a piea of Benami is no longer maintainable. Accordingly the petitioners are entitled to the reliefs claimed by them,

6. Mr. Keshri, learned counsel for the respondents 1 to 5 firstly submitted that a report was submitted by the Ancbal authority that the petitioners were benamidars of the landholders respondents 6 to 8. When we wanted as to whether such a fact has been stated in the counter affidavit filed on behalf of the respondent No.3 today in court, he further submitted that a plea was taken by the land holder himself that the petitioners were his benamidars. He submitted that the provisions of the Benami Transactions (Prohibition of tne Right to Recover Property) Act 1988, are not applicable inasmuch as the Act came in operation subsequent to the notification under section 15 (1) of the Act. He further submits that this writ application filed by 57 petitioners is not maintainable and the petitioners should file a civil suit.

7. Annexure-4 Is an order passed in a case started under the provisions of the Act against respondents o to 8. The final statement is one Tne notification under Sec.15 (1) of the Act is also one. In the said view of the matter we hold that this single writ application at the instance of the petitioners is maintainable specially when no notice admittedly was issued to them of the said case before declaring their lands as surplus of the landholders respondents 6 to 8 Even assuming for the argument sake that the petitioners ought to have filed a separate writ application we do not want to throw this writ application specially in view of the patent fact that petitioner no.1 happens to be a scheduled caste and some of the petitioners are members of backward classes of the society.

8. We also find substance in the argument of Sri Sharma that the benami Transactions (Prohibition of the Right to Recover Property) Act, 1988 does not allow a plea of benami to be entertainable with effect from 19th May, 1988 and that the notification under Sec.1