Retrospective effect of sub-section (2) of section 5 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 and retrospective repeal of section 5 prior to Act 35 of 1982.

S. Ali Ahmad, J.-The dispute in this case is with respect to 8 decimals of land appertaining to plot no. 437 situate in village Asoi Raghu within the Goraul Police Station in the district of Vaishali.

2. By the ORDER :s as contained in Annexures 4, 5, and 6, this land has been directed to be recorded in the name of Respondent no. 4. The petitioner; therefore, has come up to this Court praying to quash the aforesaid ORDER :s as contained in- Annexures 4, 5 and 6.

3. The land in question, undisputedly, was the gairmazarua land of the then landlord. According to the petitioner he took a settlement by payment rent and grant of receipt accompanied, by delivery of possession some time in the year 1930. It is said that since then he is in possession of the same and his name was also recorded in the revisional survey. It is said that when the draft publication was made by the consolidation authorities under section 10(1) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as ‘the Act') then his name appeared in the land Register prepared under section 9(1) and was published under section 10 (1) of the Act. An objection to this publication was made by Respondent no. 4. The Consolidation Officer allowed the objection by his ORDER :dated 17.5.1976 as contained in Amiexure-4 wherein, inter alia, it is said that neither the petitioner nor Respondent no. 4 could prove his title but since Respondent no. 4 was not in possession of the land in question, therefore, his objection was allowed. Against this ORDER :, an appeal was preferred before the Deputy Director of Consolidation (Respondent no. 2) who dismissed the appeal on 24.7.1978 by the ORDER :as contained in Annexure-5. The matter was then taken to the Director of Consolidation by way of revision and the Joint Director of Consolidation upheld the ORDER :s passed by the Consolidation Officer and the Deputy Director of Consolidation, by his ORDER :dated 26th May, 1980 (Annexure-6). Thus the prayer of the petitioner, as said earlier, is to quash these ORDER :s.

4. Learned counsel, in support of the application, urged that the only basis for allowing the objection of Respondent no. 4 was that according to the authorities, Respondent no. 4 was not in possession of the land in question. Learned counsel urged that according to the survey entry, the petitioner held the land as raiyat. The learned counsel further says that in absence of any proof that the entry was incorrect, the authorities acted illegally in allowing the objection filed by Respondent no. 4. Learned counsel for Respondent no. 4, on the other hand, urged that in fact the petitioner had not taken settlement of the land in question as alleged by him. According to the learned counsel, the land was settled by the outgoing landlord in favour of one, Sawni Mian, from whom he (Respondent no. 4) has purchased the land. I do not wish to make any comment on this aspect of the matter. But the position is clear, an entry in the survey record of right carries all presumptive value. and, therefore, if Respondent no.4 had to succeed, it was obligatory for him to prove his case.

5. Learned counsel for the Respondents, however, says that the authorities have illegally not considered- his (Respondent Nos. 4) case on merit on the ground that the sale deed dated 4.7.1972 with respect to the land in question executed in his favour did not convey any title because the same was without sanction as provided under section 5 of the Act. When the sale deed in question was executed, section 5 of the Act, as it then stood, required sanction with respect to the alienation after the notification under section 3 of the Act was made. But this section was amended by Act 27 of 1975. By this amendment, sanction was required in cases in which alienation was made after the publication under section 10(1) of the Act was made. There was yet another amendment when sub-section (2) was added to section 5 of the A