Jharkhand High Court
Radhika Devi Wife Of Vindhyachal Dubey ... vs The State Of Jharkhand on 14 February, 2018
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.6303 of 2003
Radhika Devi wife of Vindhyachal Dubey resident of Village:
Turuktaleya Purubdiha, P.S.: Chainpur, District: Palamau
... ... Petitioner
Versus
1. The State of Jharkhand
2. The Member, Board of Revenue, Jharkhand
3. The Deputy Commissioner, Palamau at Daltanganj
4. The Land Reform Deputy Collector, Palamau at Daltanganj
5. Smt. Vadwanti Devi wife of Vinayak Dubey, resident of Village:
Turuk Taleya, Purudiha, P.S. Chainpur, District: Palamau
6. Smt. Mandodari Devi wife of Janeshwar Dubey, resident of
village: Turuk Taleya, Purudiha, P.S. Chainpur, District: Palamau
7. Smt. Pramila Devi w/o Sachhidanand Dubey resident of Village;
Tisibar, P.S. Bishrampur, District: Palamau
... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Rajiv Ranjan Tiwari, Adv.
For the Respondent-State : None
For the Respondent No.5 : Mr. V. Shivnath, Sr. Adv.
Mr. Amar Kumar Sinha, Adv.
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16/14.02.2018
1. Heard Mr. Rajiv Ranjan Tiwari, counsel appearing for the petitioner.
2. Heard Mr. V. Shivnath, Senior counsel assisted by Mr. Amar Kumar Sinha, counsel appearing for the respondent no.5.
3. Nobody appears on behalf of the respondent-State.
4. This writ petition has been filed by the petitioner with the following prayers:
(a) For quashing the order dated 12.12.1998 passed by the Land Reforms Deputy Collector, Palamau in L.C. Case No.14/1991-92 as contained in Annexure-7 to the writ petition whereby the claim of pre-emption made by the respondent no.5 under Section 16(3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be referred as "the Act") has been allowed.
(b) For quashing the order dated 26.11.2002 passed by the Deputy Commissioner, Palamau in L.C. Appeal No.15/78/98-
99 as contained in Annexure-8 to the writ petition.
2(c) For quashing the order dated 11.10.2003 passed by the Member, Board of Revenue, Jharkhand in Board Case No.55 of 2002.
5. The counsel for the petitioner submits as under:-
a. The petitioner before this Court is the purchaser of the property being Plot No.557 under Khata No.285 measuring an area of 0.21 acres of Village Turuk-Taleya Purubdiha, P.S.-Chainpur, District- Palamau from the respondent no.6 by virtue of registered sale- deed no.6553 dated 04.07.1991. The sale-deed is annexed as Annexure-1 to the writ petition.
b. The respondent no.5 herein claiming herself to be adjoining Raiyat of the said cultivated land filed an application under Section 16(3) of the said Act before the Land Reform Deputy Collector, Palamau claiming her right of pre-emption. The case was registered as L.C. Case No.14/91-92.
c. The petitioner herein filed their response to the said application for pre-emption filed by respondent no.5 before the said authority, wherein they had taken a point that the property in question is homestead land and further that a portion of the property was gifted to her daughter by virtue of registered gift- deed dated 30.08.1991. The counsel for the petitioner submits that the formalities in connection with the gift, including handing over the possession of the property to the daughter took place prior to the filing of application under Section 16(3) of the said Act but was registered on 30.08.1991 i.e after filing of the application for preemption by the respondent no.-5. d. The said application was rejected by Land Reforms Deputy Collector, Palamau by an order dated 02.01.1992 passed in L.C. Case No.14/91-92 against which, the appeal was filed before the Deputy Commissioner, Palamau which was registered as Land Ceiling Appeal Case No.15/10/92-93, which was also dismissed vide order dated 24.09.1993.
e. Against the appellate order the respondent no.5 filed a revision case before the Member, Board of Revenue, Bihar at Patna which was registered as Revision Case No.484 of 1993.3
f. The Member, Board of Revenue was pleased to set-aside the order passed by the lower authority and remanded the matter for fresh consideration vide order dated 26.12.1996. g. In the order passed by the Member, Board of Revenue as contained in Annexure-6 to this writ petition, the Member, Board of Revenue duly recorded a finding that the gift-deed involved in this case would be governed by the doctrine of lis-pendens and accordingly, the said gift-deed could not thwart pre-emption. Further the Member, Board of Revenue also recorded that there is no finding in connection with the fact that whether the pre- emptor was an adjoining Raiyat or not.
h. Counsel for the petitioner submits that the order as contained in Annexure-6 of the writ petition dated 26.12.1996 did not prevent the authorities below to enter into the dispute as to whether the gift-deed would be governed by the doctrine of lis-pendens or not and it was open to them to contend that the provision of Section 16 would not apply to the gift-deeds at all. i. So far as the other point regarding the adjoining Raiyat is concerned, the counsel for the petitioner submits that pursuant to the order of remand dated 26.12.1996 passed by the Member, Board of Revenue, the matter was examined afresh by the authorities below and the original authority i.e. Land Reforms Deputy Collector vide fresh order dated 12.12.1998, as contained in Annexure-7, has decided the issues in favour of the pre- emptor. However, there is a finding that the pre-emptor is the adjoining Raiyat.
j. So far as the gift-deed is concerned, the said authority has refused to enter into that dispute in view of the categorical finding in earlier Revision Case No.484 of 1993.
k. So far as the claim that the land in question is homestead land and accordingly section 16(3) of the aforesaid Act would not apply is concerned, this plea was rejected.
l. Against this, the writ petitioner filed an appeal which was rejected vide order dated 26.11.2002. Before the appellate authority also, non-applicability of the provisions to the 4 homestead land was rejected and on the point of gift-deed the said authority refused to entertain the plea.
m. Against the order of appellate authority, the writ petitioner filed revision being Revision Case No.55 of 2002 which was also dismissed vide order dated 11.10.2003.
n. Counsel for the petitioner submits that Member, Board of Revenue has erred in law in refusing to enter into the merits so far as the plea regarding gift-deed is concerned, on the ground that the earlier revisional order passed in Revision Case No.484 of 1993 has already decided the issue. He submits that the issue in connection with the applicability of Section 16 of the aforesaid Act to the gift is concerned, was still open for consideration and having not considering the same, he has committed the serious error in law. He further submits that so far as the point regarding homestead land is concerned, the same has also been wrongly decided by the revisional authority. On the point of applicability of Section 16 to the gift, the petitioner has cited a judgment reported in 1985 PLJR 662 to submit that Section 16(3) of the Act does not apply to gift-deed. He also relies upon a judgment passed by this Hon'ble Court on 31.10.2014 passed in C.W.J.C. No.72 of 1999(R) with C.W.J.C. No.74 of 1999(R) by referring to para-5 of the said judgment which refers to the judgment reported in 1985 PLJR 662.
o. On the point of the claim of the property being homestead land, counsel for the petitioner submits that by virtue of specific amendment in Section 4 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, the reference to homestead was deleted vide amendment carried out in the year, 1973 and accordingly, when Section 4 is to be read with Section 3 then it can be construed that Section 16(3) of the Act will not be applicable to homestead land.
6. Counsel for respondent no.5 on the other hand submits that the impugned order has been rightly passed by the authorities and there being no perversity in the order, the same does not call for any interference by this Court. However, on the point of law the counsel 5 for the respondents submits that the gift-deed having been executed only on 30.08.1991 by way of registered document and the application for pre-emption having been filed on 21.08.1991 the doctrine of lis-pendens would apply and no transfer of immovable property can be acknowledged unless it is done so by a registered document. The counsel for the respondent further submits that from the perusal of the order dated 26.12.1996 passed in Revision Case No.484 of 1993, it is clear that a categorical finding has been recorded as follows:
"Then again any alleged oral gift of a date prior to filing of pre-emption has no standing in the eyes of law. A document transferred into writing after the date of filing of a pre-emption is hit by a doctrine of lis-pendens under the Transfer of Property Act and such alleged gift would not cover pre-emption."
7. He further submits that on the face of this finding which was not challenged by the writ petitioner, it was not open to the authorities to enter into the issue as to whether the application under Section 16(3) of the Act was maintainable due to the alleged gift and accordingly, the authorities below have rightly not entered into this issue.
8. So far as the issue regarding adjoining Raiyat is concerned, the original authorities after remand as well as the appellate authority after remand have given categorical finding that the respondent no.5 was the adjoining Raiyat and from the order dated 11.10.2003 passed by the Member, Board of Revenue it appears that the same was not an issue before the revisional court. Even from the perusal of the writ petition, it appears that there is no such dispute raised.
9. So far as the applicability of the provisions of section 16(3) of the aforesaid Act is concerned, it is submitted by the counsel for the respondent no 5 that the issue is covered by the Judgment passed by this Hon'ble court reported in 2005(4) JLJR 3 wherein the definition of "land" has been considered and it has been held that land includes "homestead" property also.
610. Considering the facts and circumstances of this case and after hearing counsel for the parties, I see no reason to give any relief to the petitioner mainly on account of the following facts and reasons:
(a) From the perusal of the order dated 26.12.1996 passed in Revision Case No.484 of 1993, I find that there is a categorical finding that the gift involved in this case is to be governed by the doctrine of lis-pendens and accordingly it was not open to the authorities to enter into this dispute while passing the order after remand . Admittedly, the petitioner has not challenged the order dated 26.12.1996 passed in Revision Case No.484 of 1993. Thus the judgments relied upon by the writ petitioner reported in 1985 PLJR 662 and judgment dated 31.10.2014 passed in C.W.J.C. No.72 of 1999(R) with C.W.J.C. No.74 of 1999(R) on this point does not help the petitioner in any manner.
(b) So far as the point regarding adjoining Raiyat is concerned, the original court as well as the appellate court have returned a categorical finding that the respondent no.5 was the adjoining Raiyat and this finding has not been disturbed by the revisional court. In view of the consistent concurrent finding of facts regarding the status of the respondent no.5 as adjoining Raiyat, this Court finds no illegality or perversity in the impugned orders on this point.
(c) So far as the applicability of Section 16(3) to homestead land is concerned, I find that land itself has been defined by the Act and the definition is contained in Section 2(f) of the Act which reads as follows:
"2(f) "Land" means land which is used or capable of being used for agriculture or horticulture and includes land which is an orchard, Kharhur or pasturage or [forest land or] [also the land] perennially submerged under water] water or the homestead of land- holder;
Explanation I. -"Homestead" means a dwelling house for the purpose of living or for the purpose of letting out on rent together with any courtyard, compound, attached garden, orchard and out- building and includes any out-horticulture and any tank, library and place of worship appertaining to such dwelling house.7
[Explanation II. - Land perennially submerged under water shall not include submerged in the bed or a river.]"
11. Counsel for the respondents have relied upon the judgments reported in (2005) 4 JLJR 3 to bring home the point that the Section 16(3) would apply even in the matters of homestead land as defined and considered under Section 2(f) of the aforesaid Act. Further I find that from the impugned order passed by the Member, Board of Revenue in Revision Case No.55 of 2002 this particular provision has been considered and it has been recorded that "the sale-deed of the disputed land describes the vendor and the vendee as cultivators. It describes the said land as "tanr gharbari". Section 2(f) and Explanation 1 of the Land Ceiling Act, 1961, includes homestead of a landholder is "land", hence such a land will also attract the provision of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. This court finds that the impugned order dated 11.10.2003 has rightly decided the issue regarding applicability of section 16(3) of the aforesaid Act to homestead land.
12. Considering the facts and circumstances of this case, I find that all the three issues are fit to be decided against the petitioner and in favour of the private respondent. Accordingly, the writ petition is hereby dismissed.
(Anubha Rawat Choudhary, J.) Saurav/Pankaj