Patna High Court
Basudeo Choudhary vs State Of Bihar And Ors. on 6 October, 1983
Equivalent citations: AIR1984PAT178, 1984(32)BLJR248
Bench: Lalit Mohan Sharma, N.P. Singh
JUDGMENT
1. The respondents 8 and 9 executed a sale deed in favour of the respondent No. 7 in respect to certain land attracting the provisions of Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter, referred to as 'the Act) and the appellant and the respondents 5 and 6 filed two competing applications for pre-emption. The application of the respondents 5 and 6 was filed earlier, but the Land Reforms Deputy Collector (respondent No. 2) took cognizance of both the cases on the same day. The respondents 5 and 6 claimed preference on the ground that their application was filed before that of the appellant. The case of the appellant is that since his land adjoining the subject-matter of the sale deed is larger in area than the adjoining land of respondents 5 and 6, his application must succeed to the exclusion of the claim of respondents 5 and 6.
2. The appeal was heard by a Division Bench of Mr. Justice N. P. Singh and Mr Justice A. P. Sinha. Mr. Justice N. P. Singh held that the applicant who approaches the authority first should be preferred. Mr. Justice A. P. Sinha took the ing land must succeed. In view of the divergence of opinion, this appeal has been placed for further hearing, before me under the direction of the Hon'ble Chief Justice.
3. The respondent No. 2 before whom the pre-emption applications were filed granted the prayer of the respondents 5 and 6 on the ground of their application having been filed earlier. On appeal, the respondent No. 3 confirmed the decision. The appellant filed a revision application before the Board of Revenue and the respondent No. 4 allowed the same. The respondents 5 and 6 came to this Court in C. W. J. C. 4574 of 1978* which was heard and allowed by a learned single Judge of this Court. The present letters patent appeal is directed against his judgment.
4. There is no provision in Section 16 (3) or any other section of the Act which can help resolve the problem. The learned single Judge who decided the writ application rejected the stand of both sides, as mentioned above, but allowed the writ application on the ground that since the application of the appellant had been rejected by the respondent No. 2 and the prayer for pre-emption was granted in favour of the respondents 5 and 6, the appellant had no right to challenge the order in appeal or in revision. None of the two learned Judges hearing the letters patent appeal has accepted this view as correct and I agree with them. By merely passing a wrong order, the Land Reforms Deputy Collector cannot defeat the claim of a rightful applicant. The right of appeal and revision has been bestowed by the Act and cannot be defeated in this manner.
5. I have gone through the reasons given by the two learned Judges who have heard the appeal in support of their judgments and I regret my inability to agree with either of them.
6. The section prescribes three months' period of limitation for filing the application. In absence of any indication in the Act to confer a better right on an applicant rushing with his application in haste, it does not appear reasonable to me to prefer the claim made earlier and reject the prayer of another person coming later but within the period of limitation. By doing so, the rival pre-emptors may be put to unhealthy competition and the position may get further confused by their approaching the authority on the same day and sometimes claiming registration of their applications as cases at the same hour. To discourage suck a situation, the authority should take up the applications together and not one after another, as has been done in the present caw. I, therefore, hold that the respondents 5 and 6 cannot succeed on the ground of their application having been filed earlier in point of time.
7. Mrs. Mishra appearing on behalf of the appellant contended that (as held by Mr. Justice A. P. Sinha) by allowing the application of the adjoining raiyat having a larger area, the object of consolidation of holdings and prevention of fragmentation will be better served. I am not able to persuade myself to agree with this argument. In case of two rival pre-emptors as in the present case. there are three plots of land under consideration -- the one being the subject-matter of a transfer and the other two adjoining lands. By allowing the application of either of the pre-emptors, the object of consolidation will be equally served as there would be now two blocks of land instead of three The position will remain the same even if both the pre-emptors succeed partially. The purpose of the Consolidation Act or the Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act is not to assist an owner of a large area of land to acquire more land. The appellant, therefore, cannot succeed on this basis,
8. The question will remain as to how to resolve the dispute between the two rival pre-emptors. Where there is no law govern-ing-the case, the Courts in India have acted according to justice, equity and good con-science. Section 37 (2) of the Bengal, Agra and Assam Civil Courts Act, 1887 accepts this position in express language. Foreign decisions have been applied in appropriate cases in this country as supplying rules of justice, equity and good conscience provided of course the circumstances relevant in this regard arc similar. The right of pre-emption granted by Section 16 (3) of the Act is similar in quality to that under Mahomedan Law, applicable to Bihar by custom, except that it can be claimed only by cosharers or adjoining raiyats and the eight is of one uniform class. In Section 227 of Mulia's Principles of Mahomedan Law, it is stated that Mahomedan law of pre-emption is applied by Courts of India as a matter of justice, equity and good conscience (except in the Madras Presidency). In the circumstances, I am of the view that the rule laid down by Mahomedan Law should be ap-
plied to decide the present question which is not answered by the Act. In the Maho-medan Law, there are different classes of right of pre-emption and this aspect is irrelevant in the context of Section 16 (3) as only one uniform class of right is envisaged by the section. However, when there are two or more pre-emptors belonging to the same class, they are entitled to equal shares of the property in respect of which the right is claimed (See Baillie, 500; and Mulla Section 231). Accordingly, I hold that when two application under Section 16 (3) are filed within the period of limitation, the applicants are entitled to equal shares in the disputed land and each of them shall be liable to pay half the amount as directed by the section.
9. For the reasons mentioned above the judgment in C. W. J. C. 4574 of 1978 at also the orders in Annexures 2, 4 and 5 of tibe writ applicalion are set aside and the matter is remitted to the Land Reforms Deputy Collector, Hajipur (respondent No. 2) for passing fresh orders in accordance with the observations made above. The appeal is disposed of accordingly. There will be no order as to costs.