Patna High Court
Kauleshwar Singh vs Parmanand And Ors. on 29 March, 1972
Equivalent citations: AIR1972PAT407, AIR 1972 PATNA 407, 1972 PATLJR 321, ILR (1973) 52 PAT 26, 1972 BLJR 694
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Untwalia, J.
1. Respondents 3 and 4 in this writ application transferred some land in certain villages by means of a sale deed executed on 16-11-1967. The transfer was in favour of Respondents 1 and 2. The sale deed was registered and the registration was complete on 11-12-1967. I may mention one more fact which, of course, is not of much consequence in this writ application, that Respondents 1 and 2 in their turn had transferred the land by another sale deed executed on 21-11-1967. The registration of this sale deed was completed sometime in February, 1968. The petitioner claiming to be the co-sharer and an adjoining raiyat of the land transferred filed an application on 22-11-1967 under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1962 (Bihar Act 12 of 1962) (hereinafter to be referred to as "the Act'). This application was allowed by the Deputy Collector, Land Reforms, by his order dated 2-2-1963-A copy of this order is Annexure '1' to this writ application. Respondents 3 and 4 were directed to reconvey the land to the petitioner. They went up in appeal. The appellate authority allowed the appeal and remanded the case. After remand, the Deputy Collector, Land Reforms, dismissed the application on 24-8-1968- A copy of this order is Annexure '2' to this writ application. On objection by the transferees that the case was hit by a decision of this Court in Hiralal Agrawal v. Rampadarath Singh, 1968 Pat LJR 384 inasmuch as copy of the deed filed by the applicant was not a copy of the registered deed as contemplated under Section 16 (3) of the Act, it was held by the Deputy Collector that the application filed by the applicant was not in order in view of the said decision of this Court. Hence the application was disallowed. The petitioner went up in appeal. The appellate authority allowed the appeal by its order dated 24-6-1969. A copy of this order is Annexure '3' to this writ application. Before the appellate authority, a point seems to have been taken that Respondents 3 and 4 in the meantime had transferred the land to Other persons but this point was overruled and it was held that the petitioner was entitled to an order of pre-emption against the original transferees, namely, Respondents 3 and 4. The decision of the High Court in 1968 Pat LJR 384 had been upset by the Supreme Court in Hiralal Agrawal v. Rampadarath Singh, AIR 1969 SC 244. Therefore, the point on which the application for pre-emption had been dismissed by the first authority on 24-8-1968 was no longer available to the transferee. But the decision was sought to be supported on his behalf before the appellate authority on the ground that the application filed by the petitioner on 22-11-1967 was premature as it was filed before time. The registration was complete on 11-12-1967. This argument was repelled by the appellate authority saying that the date of execution of the sale deed is the relevant date for the filing of the application under Section 16 (3) of the Act. The matter thereafter went up in revision before the Board of Revenue. The learned Additional Member, Board of Revenue, in his order dated 3-2-1970, a copy of which is Annexure '4' to this writ application, has said that the transfer was by a deed executed on 16-11-1967, the registration of which was completed on 11-12-1987. On the application filed by the petitioner for preemption on 22-11-1967, cognizance was taken by the Deputy Collector on the same date who by his order dated 22-11-1967 not only took cognizance but ordered the applicant to be put in possession of the land in question. The view of the Board is that no final order of pre-emption could be passed in the proceeding initiated on the basis of the application filed on 22-11-1967, cognizance of which application was taken on that date. The applicant under Section 16 (3) bf the Act has obtained a rule from this Court to quash the order of the Board of Revenue contained in Annexure '4'.
2. The view taken by the learned Member, Board of Revenue, is directly covered by three Bench decisions of this Court. In Budhnandan Ram v. State, C.W.J.C. 133 of 1969 decided on 30-1-1970 (Pat.) I discussed the point with reference to Hiralal's case decided by the Supreme Court and held that if action is taken on an application filed for pre-emption before registration is complete under Section 61 of the Registration Act, then such action is void. Cognizance of the proceeding being void ab initio is not validated subsequently on the completion of the registration. No effective order under the proviso to Sub-clause (ii) of Section 16 (3) of the Act or under Sub-clause (iii) can be made in such a proceeding. S. N. P. Singh, J. agreed with my view. This case was followed by S. N. P. Singh, J. in Chulhai Mian and Abdul Rahim v. Nabijan Ansari, C.W.J.C. Nos. 339 and 340 of 1969 decided on 8-10-1971 (Pat.) Kanhai-yaji, J. agreed with him. An identical point again succeeded on behalf of the petitioner in Jageshwar Jha v. Addl. Member, Board of Revenue, Bihar, Patna, C.W. J.C. No. 226 of 1969 decided on 13-3-1972 (Pat.) by a Bench of this Court consisting of S. N. P. Singh, J. and my learned Brother.
3. Mr. S.C. Misra, appearing for tile petitioner, submitted that the view expressed in the three Bench decisions of this Court is not correct and requires reconsideration. His plank for this submission rested on two grounds: (i) that with reference to the provisions of the Bihar Privileged Persons Homestead Tenancy Act, 1947 (Bihar Act 4 of 1948) which according to his submission more or less are identical with the provisions of Section 16 (3) of the Act, it was held by a Bench of this Court consisting of Ramaswami, C. J. and Raj Kishore Prasad, J. in Ragho Singh v. State of Bihar, 1957 BLJR 445 = (AIR 1957 Pat 163) that the relevant date for making effective order is not the date of the filing of the application but the date of the order with reference to which facts have got to be adjudged. Learned counsel, therefore, submitted that the Bench decisions of this Court in C.W.J.C. 133 of 1969 and others are directly in conflict with the earlier Bench decision of this Court in Ragho Singh's case which decision was not noticed in either of the three Bench decisions and (ii) that there was no inherent lack of jurisdiction in the authority to entertain the application filed before time; at best, it was an irregular assumption of jurisdiction. Therefore, on the principles of Section 21 of the Code of Civil Procedure, as no objection was raised at the earliest possible opportunity, objection as to jurisdiction could not be raised either before the appellate authority or the revisional authority. In my opinion, on scrutiny neither of the two grounds of attack on the earlier Bench decisions of this Court is sustainable.
4. Bihar Act 4 of 1948 came into force on the 18th February, 1948. If any privileged tenant is ejected by his landlord from his homestead within one year before the date of commencement of the Act which by amendment made by Bihar Act 23 of 1952 was substituted by a phrase "Commencement of the Bihar Privileged Persons Homestead (Amendment) Act, 1952" otherwise than in due course of law, such tenant for the purpose of Section 4 of the said Act was directed to have been deemed to have held such homestead for a period of one year before such commencement of the Act of 1952 and he could apply to the Collector for restoration of possession over the homestead from which he had been so ejected. Another provision was introduced in sub-sections (5) and (6) of Section 8 by Bihar Amending Act 42 of 1951. The facts of Ragho Singh's case 1957 BLJR 445 = (AIR 1957 Pat 163) were that the tenant had filed an application on the 15th October, 1953 before he was evicted. The application was under Section 8 (5) of Bihar Act 4 of 1958. On receipt of this application, the Subdivisional Officer issued a notice to the other side to show cause why they should not be produced against under Bihar Act 4 of 1958 as also under the Bihar Harijan (Removal of Civil Disabilities) Act, 1949. They showed cause. Thereupon, the Sab-divisional Officer decided to hold a local enquiry personally on 12th December, 1953. He held a local enquiry and then issued a notice on the 14th December, 1953 as he found on the 12th December, 1953 that the tenant had been actually evicted. Under the rules framed in the year 1948, no special rule was framed for disposal of the application filed under Section 8 (5) of the Act. In terms, the rules were for disposal of applications filed under Sub-section (5). It appears that after amendments were brought about in the year 1951, no special rules were framed. The form of notice under Sub-rule (2) of Rule 5 of the Bihar Privileged Persons Homestead Tenancy Rules, 1948 is Form 'F'. It would appear from the said form that the notice which was given by the Subdivisional Officer, after he held enquiry on 12th December, 1953, was a notice of that nature provided in that form. In the context of the scheme of the Act and the Rules -framed thereunder, cognizance of the application and action on it was taken by the Subdivisional Officer after 12th December, 1953, on a date when actually the tenant was found to have been evicted from his homestead. The decision in Ragho Singh's case, therefore, is not in conflict with the decisions of this Court given under Section 16 (3) of the Act. I may also point out that on an application under Section 8 (5) of Bihar Act 4 of 1948, no order is to be made under Sub-section (5) but order is to be made under Sub-section (6) which provides that the Collector may, on receipt of an application under Sub-section (5) or on his own motion, after making such enquiry as he deems fit order that the privileged tenant shall be put in possession of the homestead or part thereof from which he has been so ejected. Exercise of power, therefore, is not dependent on the receipt of the application only. Power can be exercised suo motu by Collector. The said provision has been made by way of public policy for the protection of the privileged tenants who are illegally evicted from their homestead. On the other hand, provisions of Section 16 (3) of the Act are very much different. Here a person claiming to pre-empt gets a right to file an application only when the registration of a document of transfer is complete. Under clause (iii) of Section 16 (3) the application is to be allowed and then an order is to be made in the terms indicated in that clause. It is a well establish-d principle of law that ordinarily and generally rights of the parties are adjudicated with reference to the date of commencement of the proceeding. When an application is filed for pre-emption on a date when the pre-emptor had no right to file the application, and if effective action is taken on that application by the Collector on a date before the completion of registration, then the action is without jurisdiction, as the condition precedent for entertaining the application is not fulfilled. There are no words in Section 16 (3) or the rules framed under the Act to indicate that a proceeding without jurisdiction and being void ab initio becomes a good proceeding as soon as registration is complete during its pendency. The right of the pre-emptor has to be judged on the commencement of the proceeding in the sense of taking action by the Collector and not on the date of the order. In my opinion, therefore, if I may say so with respect, the Bench decision of this Court in Ragho Singh's case with reference to the provisions of Bihar Act 4 of 1958 and on facts of that case, was right. Nothing has been said in the Bench decision of this Court in C.W.J.C. 133 of 1969 which militates against what has been said in Ragho Singh's decision.
5. Learned counsel for the petitioner, in my opinion, has wrongly made reference to Section 21 of the Code of Civil Procedure. That section deals with objection as to the place of suing with reference to previous section in relation to suits filed in civil courts. In that connection, a distinction has always been drawn between lack of inherent jurisdiction of Civil Courts to entertain a suit or a proceeding and an objection as to the place of suing. If a suit is filed in a court situated at a place where, for example, no part of the cause of action has arisen, there is no inherent lack of jurisdiction of that court to entertain and decide that suit. Objection as to the jurisdiction in such a case is an objection, strictly speaking, as to the place of suing. In contrast to this principle, it has been repeatedly held that a Tribunal or an authority acting, under a special statute derives its powers, to so act within the four corners of that statute. If the provisions of the statute! are violated and specially in regard to the conditions which confer jurisdiction and power on the Tribunal or Authority to; exercise it, then the order is without jurisdiction. Apropos such cases, the distinction of inherent lack of jurisdiction and objection as to the place of suing is not relevant. The matter has been fully discussed by me in C.W.J.C. 133 of 1969 (Pat.) and it is not necessary to repeat all that I have said in that decision for reiterating my view in this case. I still hold that if a proceeding is commenced by taking action on an application filed for preemption before completion of registration of the sale deed, then cognizance of such a proceeding is without jurisdiction and void. That being so, the final order made in such a proceeding is also without jurisdiction. The point can be taken at any stage if it does not involve investigation of new and fresh facts. The point was raised before the appellate authority and rightly succeeded before the revisional authority. The facts are not in dispute.
6. For the reasons stated above, I hold that this application must fail. It is accordingly dismissed. But in the circumstances, I shall make no order as to costs.
Akbab Husain, J.
7. I agree.