Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1956 does not apply to a deed of gift executed before the application for pre-emption was filed, even if registered during the pendency of the proceeding under the Act.

S. K. Choudhuri, J.-This writ application has been filed under Articles 226 and 227 of the Constitution of India challenging the ORDER :s contained in Annexures, 1, 2 and 3.

Annexure-1 is the ORDER :of the Land Reforms Deputy Collector, Bhagalpur (respondent no. 3) dated 19th June, 1976 allowing the application for pre-emption filed under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1956- (hereinafter called 'the Act'); Annexure-2 is the appellate ORDER :dated 18.4.1978 passed by the Additional Collector, Bhagalpur (respondent no. 2) dismissing the appeal filed by the petitioners and Annexure-3 is the ORDER :of the Additional Member Board of Revenue dated 11.4.1979 dismissing the revision application. Hence, the present writ application has been filed.

2. For proper appreciation of the points raised in this writ application, it is necessary to state here the relevant facts.

Petitioner no. 1 purchased 00.13 decimals of land appertaining to old khata no. 232, khesra no. 509 (new khata no. 1013. plot no. 844) of village Gobrain, police-station Shahkund district Bhagalpur under a sale-deed executed on 19th June, 1974 and registered on 16th July 1974. Respondent no. 4 Jagdish Prasad Sukla filed an application for pre-emption under Section 16 (3) of the Act on 7th August, 1974 claiming himself to be an adjacent raiyat. Petitioner no. 1 filed objection disclosing that she had ceased to have any interest in the property in question as she has gifted the property to her daughter (petitioner no. 2). She also alleged that the pre-emptor was not an adjacent raiyat. It is not disputed that petitioner no. 1 has gifted the property to petitioner no. 2 as disclosed in the objection petition filed by petitioner no. 1. This deed of gift was executed on 26.7.1974 and registered on 12.10.1974.

3. The Land Reforms Deputy Collector dismissed the pre-emption application by his ORDER :dated 19th May, 1975 on the ground that the donee had not been made a party and, therefore, the pre-emption application was not maintainable. He, however, observed that the pre-emptor may file a fresh application after impleading the donee as a party. There was an appeal against the said ORDER :by respondent no. 4 and the Additional Collector remanded the case to the Land Reforms Deputy Collector and directed him to add the donee as a party in the case and thereafter proceed in accordance with law. This ORDER :is dated 5.6.1975 as contained in Annexure-5. Thereafter the Land Reforms Deputy Collector passed a fresh ORDER :after hearing the parties on 19.6.1976 (Annexure-1). By the fresh ORDER :he allowed the pre-emption application about which I have already stated above and the appellate authority and the revisional authority dismissed the appeal and revision under Annexures 2 and 3, respectively.

4. Mrs. Gyan Sudha Mishra, learned Counsel in support of this application contended that the ORDER :contained in Annexure-1 passed by the Land Reforms Deputy Collector and the appellate and the revisional ORDER :s passed by respondents nos. 2 and 1, respectively affirming the same are illegal as Section 16(3) of the Act has no application to a deed of gift executed before the application for pre-emption was filed and though registered during the pendency of the proceeding under the Act. She further contended that there was no allegation that the gift in question executed by petitioner no. 1 in favour of petitioner no. 2 was a sham and farzi transaction and, therefore, also Section 16(3) has no application. Her further contention was that petitioner no. 2 was added in the proceeding after the appeal from the original ORDER :was allowed under Annexure-5 dated 5.6.1975 with a direction to respondent no. 3 to add petitioner no. 2 as It party to the proceeding and decide the case afresh in accordance with law. Thus the audition, according to the learned Counsel, being much beyond the period of limitation, the applicati