The provisions of Section 16(3) of the Bihar Land Reforms Act cannot be applied to cases of gift, and the deeds of gift must be proven to be sham or Benami for pre-emption applications to be maintainable.

S.K.Chattopadhyaya, J.

1. As a common question of law is involved in both these two writ applications, with consent of the parties, they have been heard together at the admission stage and are being disposed of by this common order.

2. On a preliminary objection raised on behalf of respondent No, 5 regarding maintainability of these writ applications for non-joinder of the transferors of the petitioner as party respondents, two separate applications have been filed by the petitioner during course of hearing with a prayer to make them as party.

3. The petitioner after purchasing the land in question by separate sale-deeds on 19-11-1988 subsequently gifted some portion of the land to his sisters son (BHAGINA) on 11-6-1989. After the gift the donee (respondent No. 6) came in possession of those lands.

4. Respondent No. 5 filed two separate petitions for pre-emption under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter to be referred as the Act) contending, inter alia, that being ad-joining Raiyat of certain lands in question, he was entitled for pre-emption. These two application gave rise to Ceiling Case No. 14 and 15 of 1989-90. The Additional Collector Incharge Land Ceiling after hearing the parties rejected the claim of respondent No. 5 and dismissed the pre-emption applications. Being aggrieved respondent No. 5 moved the Appellate Authority and the authority set aside the order and allowed pre-emption in favour of respondent No. 5. The petitioner impugned the said order before the Board of Revenue but without success. The Appellate Authority and the Board of Revenue were of the opinion that as the petitioner transferred the land in question to respondent No. 6 on 11-8-1989, the transfer was bad as before the statutory period of 90 days was over the transfer was made. The petitioner, thus, aggrieved has moved this Court in these writ applications.

5. First argument of learned Senior Counsel for the petitioner is that both the Appellate Authority as well as the Board of Revenue erred in law by allowing the pre-emption in favour of respondent No. 5 because in view of the Supreme Court decision in the case of Gokul Mahto V/s. State Bank of Bihar and Ors. 1999 AIR SCW 1027 applications under Sec. 16(3) by respondent No. 5 of gifted land for pre-emption was not maintainable.

6. Learned Counsel for respondent No. 5 has tried to distinguish the said decision by submitting that in the case before the Supreme Court there was no allegation that the gift was Benami or a sham document, whereas in the present case the Appellate Authority has considered this aspect of the matter and, as such, the Supreme Court decision is not applicable in the present case.

7. Before adverting to this argument, it is pertinent to mention here that before the Additional Collector respondent No. 5 made the transferors of the petitioner as parties and in appeal as well as before the Board of Revenue, the petitioner also made them party respondents. However, from the petition filed during course of hearing I find that by inadvertence the petitioner failed to make his transferors as party respondents in these writ applications. These facts have not been controverted by the Counsel for respondent No. 5. In such view of the matter for the ends of justice, I allow those petitions by permitting the petitioner to make his transferors as party respondents.

8. In the case of Gokul Mahto (supra), the Hon ble Supreme Court considered the provisions of Secs. 16, 17 and 18 of the Act and has come to the conclusion that sub-Clause (3) of Sec. 16 cannot be applied to cases of gift. In that case the Supreme Court noticed that the purchaser made the gift to his own sister and the gift was for the purpose of construction of a house.

9. Though learned Counsel for respondent No. 5 has tried to impress upon the Court that the deeds of gift were sham and fargi transaction but there is a clear finding of th