Jharkhand High Court
Savitri Devi vs The State Of Jharkhand & Ors on 26 July, 2022
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Writ Jurisdiction]
W.P.(C) No. 3392 of 2007
Savitri Devi .... .. ... Petitioner
Versus
The State of Jharkhand & Ors. .. ... ... Respondents
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO .........
For the Petitioner : Md. Zaid Ahmad, Advocate
For the respondents-State : Mr. Prashant Kr. Rai, AC to S.C. (L&C)-I
For the respondent No.5 : Mr. K.K. Ambastha, Advocate
......
10/ 26.07.2022.
Heard, learned counsel for the parties.
Learned counsel for the petitioner, Md. Zaid Ahmad has submitted that one application has been filed under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 with respect to land of Mouza- Arani, Khata No.12, Plot No.221, Area 0.36 acres, Khata No.13, Plot No.604, area 0.55 acres out of 2.65 acres of the entire area khata no.72, plot no.601, area 0.14 acres, Khata No.72, plot no.600 area 0.10 acres total 1.15 acres, which has been purchased by the private respondent no.5, Bhuneshwar Sahu, S/o Harakh Nath Sahu, R/o Villiage- Arani, P.O., P.S. and District- Simdega. The pre-emption application was allowed by the Deputy Collector, Land Reforms in Pre-emption Misc. Case No.01/2003-04 in terms of order dated 16.09.2004 with respect to 3 plots i.e. 604, 601 and 600, but pre-emption has not been granted with respect to plot no.221. The petitioner has not preferred any appeal rather the purchaser, Bhuneshwar Sahu has preferred an appeal before the Deputy Commissioner, Simdega, which is registered as Pre-emption Appeal No.2/2004-2005, which was dismissed and against the said order purchaser, Bhuneshwar Sahu preferred a revision before the Member Board of Revenue, Jharkhand, Ranchi, which was recorded as pre-emption Revision District- Simdega case No.70/2005, which was allowed in terms of order dated 28.03.2007 whereby order passed by LRDC, Simdega as well as the Deputy Commissioner, Simdega has been set aside. Against the said order, petitioner has preferred the writ petition.
Learned counsel for the petitioner has placed reliance upon the judgment passed by the Hon'ble the High Court of Judicature at Patna in the case of Sheikh Mohammad Umar vs. Baidynath Giri and Others, reported in 1969 (17) BLJR 542 and also placed reliance upon the judgment passed by the -2- Hon'ble the High Court of Judicature at Patna in the case of Abdul Gafoor vs. The Additional Member Board of Revenue and Others decided on 09.03.1984. Photocopy of the same be kept on record. Learned counsel for the private-respondent no.5, Mr. K.K. Ambastha has placed reliance upon the judgment passed by the Hon'ble the High Court of Judicature at Patna in the case of Ram Pravesh Singh vs. AddI. Member, Board of Revenue Civil Writ Jurisdiction Case no.2 of 1984 decided on 24.04.1995, reported in 1995 (1) PLJR 764 paras 7 & 9 of which may profitably be quoted hereunder:-
"7.Having regard to the nature of the right of pre-emption under the act, the pre-emption in order to succeed must make out a foolproof case. The transferee need only point out the loopholes. They do not stand on the same footing. The pre-empter must show that he is either the Co-sharer or the adjoining raiyat of all the plots, where the land comprises of more than one plot, which the transferee is not. The transferee, on the other hand, may successfully resist the claim if he is able to show that he is adjoining raiyat of some of the plots even one of them, and he cannot, therefore, be made to recovery those plots except where the transfer of other the plots can be identified as separate transaction. In that case, Partial pre-emption not being permissible, the claim of pre-emption as a whole will have to be rejected.
9.In the instant case the transfer of all the seven plots forms one transaction. The petitioner admittedly holds land adjacent to one of the plots. The claim of pre-emption, therefore, is not maintainable as against the said plot. Since the transfer of that plot cannot be separated, the claim of the pre-emptor even though otherwise maintainable against the other six plots have to be rejected as a whole because there cannot be partial preemption. The order of the D.C.L.R. Rejecting the claim for pre-emption on that very ground has, therefore, to be upheld."
Considering the same, let the matter appears on 01.08.2022.
(Kailash Prasad Deo, J.) R.S.