Patna High Court - Orders
Banarsi Mandal vs The State Of Bihar & Ors on 2 June, 2009
Author: Mridula Mishra
Bench: Mridula Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
C.W.J.C. No. 11668 of 2008
Banarsi Mandal, son of late Bisheshwar Mandal,
Resident of village Satghara, P.S. Habibpur,
District Bhagalpur .. Petitioner
Versus
1. The State of Bihar
2. The Additional Member, Board of Revenue, Bihar, Patna
3. The Additional Collector, Bhagalpur
4. The Deputy Collector, Land Reforms, Sadar, Bhagalpur
5. Raddhe Mandal, son of late Pyare Mandal, resident of village Satgharha,
P.S. Habibpur, P.O. Shahzadpur, Subdivision Sadar, Anchal Jagdishpur,
district Bhagalpur
6. Rajeshwar Mandal, son of Ratto Mandal, resident of village Dighi, P.S.
Nath Nagar, district Bhagalpur
7. Pramod Mandal, son of Raheshwar Mandal, resident of village Dighi, P.S.
Nath Nagar, district Bhagalpur
.. Respondents
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For the petitioner .. M/S S.K. Ghosarvey, M.K.
Pandey & R.K. Pandit, Advs.
For the State .. Smt. Kumari Amrita, S.C. I
(Ceiling)
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/3/ 02.06.2009 Heard the counsel for the petitioner and the State.
2. Petitioner is the purchaser. He has filed this
application for quashing the order, dated 16.05.2006, passed
by the Additional Member, Board of Revenue, Bihar, Patna,
allowing Revision Case No. 148 of 2004 in favour of the
preemptor-respondent no. 5. Further, prayer of the petitioner
is for restoration of order, dated 29.05.2003, passed by the
Deputy Collector, Land Reforms, Sadar, Bhagalpur, in Land
Ceiling Case No. 5 of 2000-2001 and the order, dated
28.06.2004, passed by the Collector, Bhagalpur, in Ceiling
Appeal Case No. 45A of 2003-2004. By these two orders,
preemption application, filed by respondent no. 5, had been
dismissed.
3. Petitioner‟s case is that he purchased land of
plot no. 186, khata no. 16 at mauza Satghara, from
respondents 6 and 7 through registered sale deed no. 4344 on
05.05.2000. On the same date he purchased another piece of
land through registered sale deed no. 4345 measuring 6(1/2)
katha from respondents 6 and 7, which is adjacent of the
same plot purchased through registered sale deed no. 4344.
Both the properties were purchased by the petitioner from
respondents 6 and 7, which is part of the same plot and the
sale deeds were executed on the same date. Respondents 6
and 7, after transferring the land in favour of the petitioner,
got the transferred land measured because in the northern
boundary of the transferred land, some excess area had been
mentioned in the sale deeds. Accordingly, respondents 6 and
7 filed a deed of correction vide deed no. 12350 and 12351
on 01.11.2000 relating to both the sale deeds giving correct
boundary of the land transferred in favour of the petitioner.
On account of the deed of correction the boundary earlier
given in the sale deed no. 4344 and 4345, dated 05.05.2000
was changed.
4. Respondent no. 5 filed an application under
Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling
Area and Acquisition of Surplus Land) Act, 1961 (in short,
„the Act‟) for exercising right of preemption with respect to
land transferred through sale deed no. 4344 and L.C. Case
No. 5 of 2000-2001 was registered. Respondent no. 5
claimed to be the boundary tenant of the purchased land. The
petitioner appeared and contested the preemption case on
grounds that by virtue of deed of correction, respondent no. 5
is not the boundary raiyat. It was also the case of the
petitioner that the nature of the land is homestead and
preemption application is not maintainable. Further, ground
which was taken by the petitioner was that on account of
purchasing lands through two registered sale deeds of the
same plot, petitioner himself has become boundary raiyat of
each of the lands, purchased by him and preemption case, in
the given circumstance, can not be allowed. Further, it was
contended by the petitioner that the preemption application is
not maintainable as respondent no. 5 has not complied Rule
19 of the Bihar Land Ceiling Rules and for all these reasons
the preemption application is fit to be dismissed.
5. The Deputy Collector, Land Reforms,
Bhagalpur, by order, dated 29.05.2003, considering the
pleadings of the parties rejected the preemption application
for all four grounds taken by the petitioner. The finding
recorded by the Deputy Collector, Land Reforms, was that on
account of execution of correction deed, respondent no. 5 is
not the boundary tenant. It was also held that since two sale
deeds have been executed on the same date for parts of same
plot of land the purchaser himself has become the boundary
tenant of the purchased land and preemption application is
not maintainable. The Deputy Collector, Land Reforms,
Bhagalpur, further, held that Rule 19 of Bihar Land Reforms
Rules, 1963, provides that application by co-sharer or raiyat
of adjoining land for transfer of land under Section 16(3) of
the Act shall be presented in L.C. Form No. 13 and the
purchase money together with a sum equal to ten per cent
shall be deposited in the treasury/sub treasury of the district,
within which the land transferred is situated. Rule 19(3) of
the Act further provides that a copy of such application shall
also be sent simultaneously by registered post with
acknowledgement due to the transferor. Rule 19(3) of the
Act being mandatory in nature, in absence of compliance of
any mandates entire proceeding under Section 16(3) of the
Act will be vitiated in law. On account of non-compliance of
Rule 19 of the Act the preemption application, itself, is not
maintainable. Preemption application of respondent no. 5
was, accordingly, rejected. The preemptor filed an appeal
before the Collector, Bhagalpur, against the order of rejection
passed by the Deputy Collector, Land Reforms, Bhagalpur,
and it was registered as Appeal Case No. 45A of 2003-2004.
The Collector, Bhagalpur, after hearing both the parties and
considering the facts as well as law applicable in the case,
affirmed the order passed by the Deputy Collector, Land
Reforms, Bhagalpur, by order, dated 28.06.2004. The
preemptor preferred Revision case No. 148 of 2004, which
was heard and decided by the Additional Member, Board of
Revenue. The Additional Member, Board of Revenue, by his
order, dated 16.05.2006, allowed the claim of the preemptor.
The finding recorded by the Additional Member, Board of
Revenue, is that the petitioner is the boundary tenant of the
transferred land. Non-compliance of Rule 19 of the Act has
not caused any prejudice to the petitioner. The plea taken by
the transferee that the nature of the land is homestead is not
correct as in the recent consolidation survey record of right,
the land is found recorded as agricultural. It was also held
that on perusal of the sale deed it transpires that both vendors
and vendee are professional cultivators, as such, the land
must have been purchased for agriculture purposes.
6. The counsel for the petitioner has submitted
that it is settled law that if the purchaser purchases two
portions of same plot by two separate registered sale deeds,
the preemption application can not be allowed as transferee
himself becomes an adjoining raiyat of each transferred lands
on account of other sale deed. In support of this contention
the petitioner has placed reliance on a decision reported in
2004(2) P.L.J.R., 334 ( Nathuni Mahto Vrs. The State of
Bihar & Ors.). The facts, reported in decision, are similar
and identical to the present case and the finding recorded are
as follows :
"In view of the series of judgments of this Court,
it is almost settled that before an application under
section 16(3) of the Act is filed, the purchaser by
purchasing an adjoining plot can himself become
the holder of an adjoining plot in order to defeat
the pre-emption application which is filed later.
Of course different considerations will arise
where purchaser tries to become a holder of an
adjoining plot by making purchase of the
adjoining land after filing of the application under
section 16(3) of the Act. In the instant case the
petitioner has knot purchased the adjoining plot
on different dates but on the same day and the
registration in respect of the two deeds had also
been completed much before filing of the two
applications under section 16(3) of the Act. As
such there should not be any difficulty in holding
that when the pre-emption applications were filed
by two different sets of pre-emptors for
reconveyance of the two plots in two cases, on
that day, the petitioner himself had become the
holder of adjoining plots in both the cases and he
could have resisted the claim for reconveyance of
either of the plots."
7. Counsel appearing for respondent no. 5 has, on
the other hand, submitted that respondent no. 5 is a boundary
raiyat on the basis of purchasing part of the same plot from
the co-sharer of the vendor in the year 1971. On the other
hand, petitioner purchased the disputed land in the year 2000,
since, respondent no. 5 became the boundary tenant much
earlier than the petitioner, as such, he has got a preferential
right on account of being the boundary tenant of the
purchased land.
8. I find that the law, in this regard, is otherwise.
The right of preemption is a very weak right. In case, the
purchaser himself becomes a boundary tenant of vended plot
before filing of the preemption application in that case
preference has to be given to purchaser and the claim of the
preemptor can not be allowed on this count that prior to
purchase of the vended land by the purchaser, the preemptor
was a boundary tenant preemptor‟s claim can be allowed
only when there is any evidence to show that any purchase
has been made by the purchaser subsequent to filing
preemption application, with an intention to defeat the right
of preemption. In the present case, the facts are otherwise.
The petitioner had purchased adjacent plot on the same date
through two registered sale deeds and it can not be stated that
there was any design to defeat the right of preemption.
Considering the facts of the case and the reported decision
2004(2) P.L.J.R., 334 ( Nathuni Mahto Vrs. The State of
Bihar & Ors.), I find that the finding recorded by the
Additional Member, Bore of Revenue, Bihar, Patna, is
incorrect and the finding recorded by the Collector,
Bhagalpur, and the Deputy Collector, Land Reforms,
Bhagalpur, are inconsonance with the law.
9. The counsel for respondent no. 5 has also
submitted that Rule 19 is not mandatory Rule rather it has
been held to be directory and in case of no prejudice being
caused to the purchaser, preemption application can not be
held to be not maintainable. In support of his contention,
relating to Rule 19 of the Act, he has placed reliance on a
decision reported in 2005(3) P.L.J.R., 352 (Siyawati Devi
Vrs. The State of Bihar & Ors.). Respondents, on the
other hand, are relying on a decision reported in 1995 (1)
P.L.J.R., 851 (Md. Shafique Ahmad Vrs. The State of
Bihar & Ors.) where it is held that omission to comply with
the provisions of Rule 19(3) of the Act would prove fatal to a
claim for preemption. In the present case transferors were
not impleaded as party in the initial stage and consequently
they were impleaded. In the given circumstance, as decided
in 1989 P.L.J.R., 103 (Ram Chandra Singh Vrs. The Sub
Divisional Officer, Hajipur & Ors.) the effect will be fatal
and the subsequent steps taken by the preemptor to implead
the transferor will not cure the illegality which has already
been caused due to non-compliance of Rule 19(3) of the Act.
The finding recorded by the Additional Member, Board of
Revenue, on this count is also not sustainable and it is set
aside.
10. The other point which has been raised by the
petitioner relates to the nature of the land. Counsel for the
petitioner has stated that the land was purchased for
homestead which is evident considering the area of land. It
can not be conceived that such a small area of land was
purchased for agriculture purposes. The nature of the land
being the homestead, the preemption application in any case
was not maintainable. There is concurrent finding of the
Deputy Collector, Land Reforms, and the Collector on this
point that the vended land is a homestead land. There was no
reason for the Additional Member, Board of Revenue, to set
aside the finding recorded by two Courts on the question of
fact. In support of this contention, the petitioner has placed
reliance on a decision reported in 2007(2) P.L.J.R., 205
(Laxman & Anr. Vrs. The State of Bihar & Ors.) where
it has been held that the concurrent finding of the fact
recorded by two Courts reversed by the revisional Court
without application of mind is illegal.
11. Considering the submissions made by the
parties and the different decisions relied upon by them as
well as the law applicable in the facts of the case, I am of the
view that leaving apart of all other questions the preemption
application filed by respondent no. 5 in the present case is not
maintainable for a simple reason that the petitioner himself
became adjacent right of the remitted land on the date of
purchase itself, that is, much before the date of filing of
preemption application. This, in itself, is sufficient for
rejecting the claim of preemption of respondent no. 5.
12. Accordingly, the order passed by the
Additional Member, Board of Revenue, Bihar, Patna, dated
16.05.2006, passed in Revision Case No. 148 of 2004 is quashed.
13. This application is allowed.
(Mridula Mishra, J.) Cp:2/S.A.