Patna High Court
Nazra Akbari & Anr vs The State Of Bihar & Ors on 28 July, 2017
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15788 of 2008
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1.Nazra Akbari wife of Md. Nayeem Yajdani
2.Md. Zakir Son of Md. Kitabuddin both residents of village karwamani, P.S-
Thakurganj, Dist- Kishanganj
.... .... Petitioner/s
Versus
1.The State of Bihar
2. the Commissioner, Purnea Division, Purnea.
3. the Deputy Collector Land Reforms at Kishanganj
4. Ataur Rahman son of Late Haji Babar Ali, Resident of village Karwamani, P.S-
thakurganj, Dist- Kishanganj.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Arun Prasad Ambastha
Mr. Rama Nand Poddar
For the Respondent/s : Mr. Kumari Amrita SC-1
Mr. Zubaida S.Hashmi
Mr. Sanjay Sinha
Mr. Deepak Kumar Singh
Mr. Saba Ashfaque
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL JUDGMENT
This petition under Article 226 for constitution of India
has been filed for quashing the order dated 18.06.2008 passed by
Commissioner Purnea Division Purnea in revision bearing Ceiling
Appeal No. 18 of 2006-07 by which and whereunder the
Commissioner Purnea allowed the revision and set aside the order
dated 27.11.2006 passed by the Collector, Kishanganj in Ceiling
Appeal no. 10 of 2001 and also for quashing the order dated
04.07.2001passed by the Deputy Collector Land Reforms at Patna High Court CWJC No.15788 of 2008 2/14 Kishanganj in Area Ceiling Case No. 4 of 2000-01 by which DCLR, Kishanganj allowed the claim of pre-emption filed by respondent no. 4 under Section 16(3) of Bihar Land Reforms Fixation of Ceiling Area and Acquistition of Surplus Land Act 1961 ( hereinafter referred to as the „Act‟).
2. The respondent no. 4 namely, Autar Rahman filed petition under section 16(3) of the Act claiming his right of preemption in respect of Khata No. 34 containing plot no. 2012 area 41 decimals and Khata no. 15 appertaining to Khesra No. 2011 area 38 decimals of village Karuamani on the basis of being boundary Raiyat of the aforesaid plots. The petitioners are purchasers and the lands in question which were transferred by father of respondent no. 5 to 8 by executing registered sale deed dated 25.03.2000. On the basis of petition filed under section 16(3) of the Act, Area Ceiling Case No. 4 of 2000-01 was registered and notices were issued and the petitioners filed objection. The father of respondent nos. 5 to 8 filed affidavit dated 28.11.2000 disclosing this fact that he had given offer of purchasing the lands in question to respondent no. 4 but respondent no. 4 refused to purchase the aforesaid land and, thereafter, he sold the said land to the petitioners. The respondent no. 4 also filed affidavit before DCLR, Kishanganj stating therein that no offer of purchaser of the lands was made to him by father of respondent no. 5 to 8. The Patna High Court CWJC No.15788 of 2008 3/14 DCLR, Kishanganj allowed the claim of respondent no. 4 passing order dated 4.07.2001 against which petitioners filed Ceiling Appeal No. 10 of 2001 before the Collector Kishanganj, who allowed the appeal passing order dated 27.11.06 but respondent no. 4 challenged the order dated 27.11.2006 passed by the Collector Kishanganj by filing Ceiling Appeal Case No. 18 of 2006-07 before Commissioner Purnea, who while exercising his revisional power, set aside the order of Collector Kishanganj and restored the order dated 4.07.2001 passed by DCLR, Kishanganj in area Ceiling Case No. 04 of 2000-01.
3. Learned counsel appearing for the petitioners raised four fold contentions. Firstly, he submitted that the respondent no. 4 did not file petition under section16 (3) of the Act in proper formate as the detail of his land was not given in the prescribed formate. He further submitted that in view of Rule 19 of Bihar Ceiling Rules 1963, it was mandatory for the pre-emptor to disclose the identity of his land on the basis of which he was claiming boundary Raiyat of the transferred plot. He further submitted that the aforesaid provision is mandatory in nature and failure on the part of pre-emptor to disclose the detail of his land in the formate was fatal to his claim but even after the aforesaid lacuna, the DCLR Kishanganj entertain the petition filed on behalf of the respondent no. 4 and allowed the same. He further submitted that the Commissioner Purnea ought to have been Patna High Court CWJC No.15788 of 2008 4/14 noticed the aforesaid point but he failed to appreciate this fact that the petition filed by respondent no. 4 was not maintainable on account of non discloser of identity of his land in prescribed formate.
4. Secondly, he submitted that before transferring the lands in question to the petitioners, their vendor had given offer to sell the lands to the pre-emptor ( respondent no.4) but the respondent no. 4 refused to purchase the lands and by refusing to purchase the lands in question, the respondent no. 4 had already waived his right but neither DCLR nor Commissioner Purnea appreciated the aforesaid fact in right perspective. He further submitted that the impugned order of DCLR goes to show that the vendor of petitioners had filed an affidavit disclosing this fact that offer to sell the lands in question was given to respondent no. 4 but he refused to purchase the lands. He further submitted that no doubt, respondent no. 4 had also filed an affidavit disclosing that vendor of petitioners had never given offer to him to purchase the lands in question but the DCLR, failed to summon the vendor of the petitioners nor any prayer was made by respondent no. 4 to cross-examined the vendor of the petitioners and, therefore, it would be presumed that vendor of the petitioner had given offer to respondent no. 4 to purchase the lands in question before transferring the lands to the petitioners. In support of his contention, he referred the decision of Ram Chapit Yadav v/s Patna High Court CWJC No.15788 of 2008 5/14 Additional Member Board of Revenue and Ors. Reported in 1996 BBCJ, SC-1. In the aforesaid decision in a proceeding initiated under section 16(3) of the Act, the vendor on affidavit stated regarding offer given to the pre-emptor at first instance and after refusal of the pre-emptor, he sold the lands but the statement of vendor given on the affidavit was never countered by the pre-emptor by filing counter affidavit and in that scenario the Hon‟ble Apex Court observed that failure to counter, the statement of the vendor by filing counter affidavit and not summoning the vendor for cross- examination, left the affidavit of vendor uncontroverted.
5. Thirdly, he submitted that the petitioners are landless persons and no claim under section 16(3) of the Act could have made against them but the DCLR as well Commissioner, Purnea did not take note of the said fact. He further submitted that crucial date to consideration the status of the petitioners as landless persons, was the date of making claim of pre-emption by respondent no. 4 and even if after making claim of per-emption, the status of petitioners changed, then also, the aforesaid change will not make any difference because the crucial date contemplated by section 16(3) is not the date of execution and registration of the document of transfer but the date on which applicant envisaged by the sub section is made before the Collector. In support of his aforesaid contention, he relied upon the Patna High Court CWJC No.15788 of 2008 6/14 decision of Ram Chandra Srivastava and Ors. Parsidh Narayan Singh. ( Full Bench) reported in 1970 BLJR page- 1101.
6. Fourthly, he submitted that the Revision petition was barred by limitation and the Commissioner Purnea ignored the aforesaid fact and without condoning the delay entertained the Revision petition and passed the impugned order. He further submitted that no prayer on behalf of the respondent no. 4 was made before the Commissioner Purnea for condonation of delay and, therefore, the Commissioner Purnea had no power to condone the delay and entertain the Revision petition.
7. On the other hand, learned counsel appearing for the respondent no. 4 refuted the above stated submissions arguing that Rule 19 of Bihar Land Ceiling Rules 1963 is not mandatory in nature and, therefore, even if, the description of the lands of respondent no. 4 has not been mentioned in the application filed under section 16(3) of Bihar Land Ceiling Act, then also, it does not make any difference because the substantial informantions had already been furnished in form LC-13 and petitioners as well as their vendors were aware of this fact that the respondent no. 4 had claimed his per-emptory right in respect of the transferred plots and no prejudice was caused to them. He further submitted that moreover, the aforesaid point had never been raised by the petitioners before the courts below and for Patna High Court CWJC No.15788 of 2008 7/14 the first time, the aforesaid point has been raised on behalf of the petitioners and, therefore, the aforesaid objection is not tenable in the eye of law.
8. He further submitted that no offer to purchase the land was given by original vendor to respondent no. 4 and so far as swearing of affidavit by original vendor is concerned, the same was sworn before notary. However, the respondent no. 4 filed counter affidavit denying the averments made in so called affidavit of vendor of the petitioners and, therefore, the decision, cited on behalf of the petitioners in this regard, is not applicable in the facts of the present case. He further submitted that for the first time, petitioner claimed the plea of landless persons and they had not raised the aforesaid claim before the courts below and moreover, Annexure-4, the certificate of Circle Officer, Thakurganj, was issued on 7.08.2008 i.e after passing the impugned order and, therefore, the aforesaid plea of the petitioners cannot be entertained. In support of his contention, learned counsel for the opposite party no. 4 relied upon the decision of this Court reported in 2015(3) PLJR 913.
9. He further submitted that admittedly, Commissioner Purnea entertained the Revision petition and passed the impugned order after giving opportunity of hearing to both the parties and, therefore, it would be presumed that the Commissioner Purnea having Patna High Court CWJC No.15788 of 2008 8/14 condoned the delay in filing the Revision petition, entertained the said Revision petition. He also submitted that the right of pre-emption is a statutory right and that statutory right cannot be denied to a person on technical ground.
10. Having heard the contentions of both the parties, I went through the record. It is an admitted position that respondent no. 4 claimed his pre-emptory right under section 16(3) of Bihar Land Ceiling Act 1963 within time and applied in form LC-13 but in scheduled-II of the aforesaid form of LC-13, he has not given the description of his land though, he claimed himself to be adjoining land holder of the transferred land. It is an admitted position that respondent no. 4 is adjoining Raiyat of transferred land. Now the question arises as to whether non- mentioning of description of his land in scheduled-II of form LC-13 was fatal to him or not. Rule 19 of Bihar Land Ceiling Rules 1963 says that application by co-sharer or Raiyat of adjoining land for transfer of land under section 16(3) shall be in form LC-13 and the purchase money together with a sum equal to ten percent thereof shall be deposited in the Treasury/Sub-treasury of the district within which the land transferred is situated. Further the above stated rules says that the Collector shall issue a notice to the transferor, transferee and the applicant to appear before him on the date specified in the notice and after giving the parties concerned, a Patna High Court CWJC No.15788 of 2008 9/14 reasonable opportunity of show cause, if any, and on being heard, shall by an order in writing, either allow the application in accordance with clause (iii) of sub-section (3) of Section 16, or reject it. If the application is allowed under item (iii) of sub-section (3) of Section 16 and the transferee is directed by the Collector by any order to convey the land in favour of the applicant by executing and registering a document of transfer, the applicant shall be required to pay the registration fee. Where the application is allowed and the transferee conveys the land in favour of the applicant under Section 16(3) (iii), the transferee shall be allowed to withdraw the money deposited by the applicant.
11. Form LC-13 has been given in the above stated Bihar Land Ceiling Rules 1963 and the purpose of aforesaid "Forum" is to obtain all the necessary information regarding the claim of a person who has made claim under section 16(3) of the Act.
12. A bare perusal of Rule -19 and form LC-13 goes to show that a procedure for making claim under section 16(3) of the Act has been prescribed in Rule 19 as well as form LC-13 and the purpose of aforesaid Rule and Form LC-13 is to bring into the notice of concerned authorities as well as transferor and transferee about the claim as well as the grounds on which claim of pre-emptor is made. In the present case, admittedly, Scheduled-II of Form LC-13 does not Patna High Court CWJC No.15788 of 2008 10/14 contain the description of adjoining land of respondent party no. 4 but in the aforesaid schedule, the respondent no. 4 disclosed that he is adjoining Raiyat of transferred land. Moreover, neither petitioners nor their vendors ever disputed the status of adjoining Raiyat of respondent. 4 and, therefore, it is obvious that they were aware of this fact that respondent no. 4 was adjoining Raiyat of transferred land. In the aforesaid circumstances, it can clearly be said that almost all the necessary information had already been given in Form LC-13 by the respondent no. 4 and non- mentioning of his adjoining land in appropriate column of the aforesaid form did not cause any prejudice either to the petitioners or their vendors. Moreover, it has already been held in the case of Khokhari Devi v/s Additional Member, Board of Revenue reported in 1987 BLJ 141 that any ambiguity or irregularity in compliance of Rule 19 Bihar Land Ceiling Rules 1963 is not fatal to the claim of pre-emptor unless it causes prejudice to other parties. In the present case, in my view, even if an irregularity has been committed by the respondent no. 4 in filing form LC-19, then also, that irregularity has not caused any prejudice either to the petitioners or their vendors and, therefore, that irregularity is not fatal to the claim of respondent no. 4.
13. Admittedly, the vendor of petitioners had sworn an affidavit before notary disclosing this fact that before transferring the Patna High Court CWJC No.15788 of 2008 11/14 land in question an offer to purchase the land in question, was given to the respondent no. 4 and after his refusal, to purchase the lands in question, the said lands were transferred to the petitioners. It is also an admitted position that the averments of the aforesaid affidavits were controverted by respondent no. 4 by filing counter affidavit before learned DCLR. It has been argued on behalf of the petitioners that respondent no. 4 failed to summon to the vendor of the petitioners for cross-examination and, therefore, the aforesaid failure shall go against the respondent no. 4 because it would be presumed that prior to transferring the lands to the petitioners, an offer to purchase the lands in question was given to the respondent no. 4 as held in the case of Ram Chhapit Yadav v/s Additional Member, Board of Revenue reported in 1996 BBCJ SC-1 but I am unable to accept the aforesaid contentions because it is well known that the person, who alleges the fact, is bound to prove the said fact. In the present case, admittedly, the fact of giving offer to purchase the land to respondent no. 4 has been pleaded by the petitioners and their vendor and the aforesaid fact has been denied by the respondent no. 4. Therefore, it was incumbent duty of the petitioners to prove the aforesaid fact even by summoning their vendors before the DCLR. So far as the decision reported in 1996 BBCJ SC-1 is concerned, the said decision is not applicable in the present case because in that decision, the claim of vendor had Patna High Court CWJC No.15788 of 2008 12/14 never been countered by other side.
14. The petitioners have also assailed the impugned judgment taking plea that they were landless persons and Section 16(3) of the Act is not applicable in respect of landless person but admittedly, the aforesaid plea was never raised by the petitioners before the court below and for the first time, the said plea is being raised before this Court. Therefore, I am of the opinion that the petitioners cannot be permitted to raise the aforesaid plea for the first time before this Court and the aforesaid plea is liable to be rejected.
15. The petitioners have also raised this plea that the Commissioner Purnea had no jurisdiction to entertain the Revision petition without condoning the delay as the aforesaid Revision petition was barred by limitation.
16. On the other hand, it has been argued on behalf of the respondent no.4 that Commissioner Purnea while exercising revisional power had ample jurisdiction not only to correct the error or material irregularity but also to correct illegality or impropriety of the order passed by the court below. To substantiate the aforesaid submissions, the decision in the case of Faguni Ram & Ors.v/s State of Bihar & Ors. reported in 2000(2) PLJR 507 has been cited.
17. Admittedly, the appellate order was passed on Patna High Court CWJC No.15788 of 2008 13/14 27.11.2006 and the Revision was filed on 08.11.2007 i.e. much beyond the period of 30 days because Section 32 of the Act prescribes limitation for filing the Revision petition against the appellate order passed by the Collector as 30 days from the date of such order.
18. In the present case, it is not the case of respondent no. 4 that he was not aware about the appellate order rather the opposite party no. 4 participated in appeal before the Collector and the appellate order was passed in his presence. It is also an admitted position that the respondent no. 4 did not file any Revision petition within 30 days from the date of passing appellate order nor made any prayer before the Commissioner Purnea for condonation of aforesaid delay in filing the Revision petition and there is nothing on the record to show that the learned Commissioner Purnea had condoned the delay and after condoning the delay in filing the Revision petition passed the impugned order. Therefore, in my view, the learned Commissioner Purnea committed error in entertaining the Revision petition and passing the impugned order without condoning the delay in filing the Revision petition.
19. No doubt, Section 32 of the Act is not at par with section 115 of the Civil Procedure Code and the Revisional Authority under Section 32 of the Act has wide power while exercising revisional power under section 32 of the Act but it is mandate of Patna High Court CWJC No.15788 of 2008 14/14 section 32 of the Act that the Revision petition must be filed from any appellate order passed by the Collector within 30 days of such order. So far as the decision cited on behalf of the respondent no. 4 is concerned, the same is not applicable in the present case because in the present case admittedly, the learned Commissioner Purnea without considering the point of limitation entertained the Revision petition and passed the impugned order. Therefore, in my view, the impugned order suffers from the aforesaid illegality and can not sustain in the eye of law.
20. On the basis of aforesaid discussions, this writ petition is allowed and the impugned order dated 27.11.2006 is hereby, quashed.
(Hemant Kumar Srivastava, J) N.K/-
AFR/NAFR AFR CAV DATE 24.07.2017 Uploading Date 18.10.2017 Transmission Date