By Court

These two applications have been heard together and are being disposed of by a common Judgment.

2. A proceeding was started against Bhaiya Shankar Pratap Deo under the provisions of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act. In the draft statement that was issued. about 2194 acres of land was mentioned as being held by the landholder. The petitioners claimed that the lands which had been transferred to them by Bhaiya Birendra Pratap Deo by registered sale deeds have also been included in the proceeding. They, therefore, pray that the impugned annexures, namely. annexures 2 to 4 in C. W. J. C. No. 2556 of 1976 and annexures 1 to 3 in C. W. J. C. No. 2698 of 1976 be quashed in so far as they relate to the lands of the petitioners.

3. It appears that after the start of the proceeding the petitioners appeared before the Additional Sub divisional Officer and filed objection. Although no notice had been given to them but having come to know of the proceeding and of their lands being included in the proceeding, they had filed the objection. Their objection too has been disposed of under the impugned annexures. In dealing with the objection of the petitioners the Additional Sub-divisional Officer observed that since these transfers were made after 22nd October, 1959 they have to be rejected. The appellate authority was of the view that since the sale deeds were executed after 9th September, 1970 without permission of the Deputy Commissioner, the said deeds were void. The Additional Member, Board of Revenue, was also of the same view.

4. A perusal of the orders in question leads us to the conclusion that the Additional Collector and the Additional Member, Board of Revenue, were of the view that all transfers after 9th September. 1970 without the permission of the Deputy Commissioner were void. This however, does not appear to be the correct legal position. Only such transfers are void which are Trade by a land holder who holds land in excess of the ceiling area. The transfers in question were made on 20th November. 1970 and 5th December. 1970. It would have, therefor", been necessary for the authorities to examine whether the vendor Bhaiva Birendra Pratap Deo held land in excess of the ceiling area then prescribed on the date of transfer. It may be stated that the ceiling area in respect of the class of land which is the subject matter of the proceeding was 60 acres. Thus, if the vendor head over 60 acres of land, he could not sell the land, in question without the permission of Deputy Commissioner. If, however, he held land within the ceiling area. permission of the Deputy Commissioner was not required. This question has, therefore. to be investigated. In case it is held that the vendor held land in excess of the ceiling area, the transfers in favour of the petitioners have to be held to be hit by the provisions of Ordinance 7 of 1970 and therefore, invalid. If on the other hand, it is found that the transfers in favour of the petitioner s are not hit by the provisions of the aforesaid Ordinance and are bonafide transactions, the further question that will require consideration is as to what relief the petitioners will be entitled. If the land bolder has not exercised his option strictly in accordance with section 9 of the Act, then the usual practice is to permit option to be exercised at a later stage even by the Board of Revenue. This is only just and proper, But in permitting the option to be exercised the authorities would have discretion to put some restriction in the exercise of the power of option. In a situation where the authorities find that there is a bonafide and valid transfer in favour of any person, it would be only fit and proper that in permitting the option to be exercised it may be stated that the land-holder will not be permitted to have the lands, which he has already transferred, declared as surplus. We may clarify that we are not expressing any opinion as