Sheema Ali Khan, J.@mdashThe petitioners have challenged the order, dated 17.4.1990 passed by the Collector, Samastipur in Case No. 429 of 1988 by which he has held that the deed of gift, dated 4.5.1977 in favour of the petitioners is void and has imposed a fine of Rs. 250/-.
2. The facts of the case are that Md. Shafique Khan had two sons, namely, Mehdi Hassan Khan and Muslim Khan and one daughter Noor Jehan Begum. Md. Shafique Khan gifted some of the lands to his grand son Noor Islam Khan, petitioner No. 1. These lands have been described at paragraph 5 of the writ petition.
3. The petitioners� case is that the lands in question are homestead lands and were gifted to them, eleven years before any challenge was putforth with respect to the deed of gift. The application u/s 32 of the Consolidation Act envisages that "the transfer of any land contrary to the provisions of the Act shall be void, and the owner of any land, so transferred, shall be liable to such fine, not exceeding Rs. 250/-, as the Collector of the district may, subject to the general orders of the State Government, direct." It has been pleaded that the application filed on behalf of Muslim Khan and his son is time barred and has been filed after a period of eleven years whereas the limitation for challenging the deed of transfer, be it a gift or a sale deed, is three years. It has also been pleaded that the permission to transfer is required after publication of the register of lands� statement u/s 10(1) of the Act. The petitioners claim that the statement of principles was made on 16.12.1982 much after the execution of the deed of gift, and as such the Collector could not have held that the deed of gift is void document. The petitioners claim to be in possession of the lands on transfer and further claim that that their names have been mutated in the revenue records.
4. The submission on behalf of the petitioners is that the Collector did not take into account or record finding whether the statement of principles has been published u/s 10(i) of the Act before or after the execution of the deed of gift (Atainama), specially as it was pleaded that the statement was published on 16.12.1982. It is submitted that none of the documents and the pleading by the petitioners before the Collector was taken into account.
5. On perusal of the order I find that in fact the Collector has not considered the documents, the pleadings and the fact whether the register under Sub-section (2) of Section 9 of the Act and the statement of principles u/s 9A had been published before 4.5.1977 i.e. the date on which the deed of gift was executed.
6. In the circumstances the order impugned, dated 17.4.1990 passed in Case No. 429/1988 is hereby quashed and the matter is remanded before the Collector, Samastipur, who will issue notice to the parties and on hearing them and taking into consideration their documents will dispose of the application.
7. This writ petition is allowed in the aforesaid terms.
