The provisions of Section 5 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, are applicable to orchards until the stage of preparation and publication of the Draft Consolidation Scheme.

S. N. Jha, J.

1. 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 under Sec.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 under Sec.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 Sec.5 are not applicable and the transfer deed cannot be said to be void.

2. The main plank of the argument is Sec.2 (3) of the Act. According to the Counsel by reason of the provisions of Sec.2 (3), orchard lies outside the Consolidation proceedings and, therefore, are not amenable to Sec.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.

3. 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 10 k ). Sec.8 provides that as soon as may be, after the publication of a notification under Sec.3, an up-to-date record-of-rights in respect or 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. Sec.10 provides for objection to the entries in the registers of lands published under section 9, decision thereon, appeals, etc. After the disposal of the objection, appeals etc. a draft consolidation scheme is required to be prepared and published under Sections 11 and 12 of the Act. The actual work of consolidation is taken up thereafter.

4. It is at the stage of consolidation that orchards or the like, mentioned in different sub-clauses of the Explanation appended to Sec.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 under Sec.3 was issued;

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

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

(iv) such other areas as the Director of consolidation may declare to the 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 lies 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.

5. Section 5 of the Act prohibits any 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