Patna High Court
Ram Bahal Singh And Ors. vs Chhote Narain Singh And Ors. on 15 January, 1975
Equivalent citations: AIR1975PAT241, AIR 1975 PATNA 241
JUDGMENT B.D. Singh, J.
1. This application under Articles 226 and 227 of the Constitution of India by Ram Bahal Singh alias Bahal Sihgh and five others is directed against an order dated 14-3-1966 (Annexure 2) passed by the Sub-Divisional Officer. Jahanabad (respondent No. 12), order dated 16-8-1967 (Annexure 3) passed by the Additional Collector (respondent No. 13), order dated 3-2-1972 (Annexure 4) passed by the Commissioner, Patna Division (respondent No. 14) and the resolution dated 18-8-1972 (An-nexure 5) of the Additional Member, Board of Revenue (respondent No. 15). In the application the petitioners have prayed for quashing of the orders and resolution as contained in those Annexures.
2. In order to appreciate the point involved in this application it will be necessary to state briefly the facts, Radhe Shekhar Singh (respondent No. 10) sold 5.53 acres of land, inclusive of a house, standing on plot No. 916 measuring an area of 0-4 decimal to respondent No. 8, (Dineshwar Singh) and respondent No. 9 (Muneshwar Singh) by a sale deed dated 11-9-1965, registration whereof was completed under Section 61 of the Indian Registration Act on 19-3-1966 for a consideration of Rs. 24,000/-. The aforesaid land comprised of as many as 27 plots and according to the petitioners they are raiyats and holders of adjoining land in respect of at least 16 plots as it would be evident from the sale deed itself. The name of petitioner No. 1 is mentioned in one or the other boundary of 16 plots out of 27 plots, which were the subject-matter of the said sale deed. Petitioner No. 1 is father of other petitioners. All the petitioners, as stated by them, are members of a joint Hindu Makshara family. Subsequently, the petitioners by a registered sale deed dated 14-10-1965 purchased a house appertaining to plot No. 916 from respondents 8 and 9 in the names of petitioners 2 to 6 for a consideration of Rs. 2,000/- and amalgamated the said house with their own ancestral house over plots Nos. 913, 917 and 918, which lie, according to the petitioners, partly adjacent, south of plot No. 916 and partly adjacent, east of plot No. 916. By another registered sale deed of the same date, the petitioners purchased 1 1/4 annas interest out of the remaining properties covered by the sale deed dated 11-9-1965 from respondents 8 and 9 in the name of petitioner No. 1 for a consideration of Rs. 1,719/-. The petitioners thereafter entered into possession of the subject-matter of the two sale deeds, which were executed in their favour. On 23-10-1965 there was a partition between the petitioners on the one hand and respondents 8 and 9 on the other regarding 1 1/4 annas interest in the properties and the lands comprised in various plots, mentioned in Schedule I of the report of the Circle Inspector dated 30-11-1965 (Annexure 1) fell into the exclusive share of petitioner No. 1, Bahal Singh.
3. On 28-10-1965 respondents 4 to 7 and Ramnandan Singh (since deceased), father of respondents 1 to 3, filed an application under 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') before the Sub-Divisional Officer, (respondent No. 12) and impleaded the petitioners as parties along with respondents 8 and 9 in exercise of right of pre-emption on account of the sale deed executed by respondent No. 10 in favour of respondents 8 and 9. Respondent No. 12 took cognizance on the same date, that is, 28-10-1965, issued notice and called for a report from Anchal Adhikari, Jahanabad, who, in his turn, called for a report from the Circle Inspector and after receiving the report from him the Anchal Adhikari forwarded the report dated 30-11-1965 (Annexure 1) to respondent No. 12, who after hearing the parties, allowed the application filed by respondents 4 to 7 and father of respondents 1 to 3, under Section 16 (3) of the Act by his order dated 14-3-1966 (Annexure 2).
4. Aggrieved by the said order the petitioners and respondents 8 and 9 filed an appeal before the Additional Collector (respondent No. 13). During the pendency of the appeal respondents 8 and 9 filed a petition dated 4-4-1967 before respondent No. 13 seeking permission to withdraw the appeal. In the application respondents 8 and 9 alleged, inter alia, that the two sale deeds dated 14-10-1965, executed in favour of the petitioners, were sham and fictitious documents and no consideration had passed. According to respondents 8 and 9, they had created those documents in order to deprive respondents 1 to 7 of their right to pre-empt, which had accrued to them according to the Act. Respondents 8 and 9 also took the entire money deposited by respondents 1 to 7 under the Act and as an abundant precaution respondents 1 to 7 requested respondents 8 and 9 to execute also a sale deed in favour of respondents 1 to 7 regarding the entire land, which respondents 8 and 9 had sot under the sale deed executed by respondent No. 10. Respondents 8 and 9, accordingly, executed the sale deed dated 5-10-1967 in favour of respondents 1 to 7. a copy of which is marked as Annexure 'A' to the counter affidavit filed by those respondents. The petitioners then and there on the same date (4-4-1967) filed an application before respondent No. 13 objecting to the withdrawal of the appeal and they, inter alia, controverted the allegations made by respondents 8 and 9 in their application and had staged therein that the consideration had passed and they were genuine and valid documents. The petitioners also alleged therein that respondents 1 to 7 had won over respondents 8 and 9 during the pendency of the appeal. A copy of the said application is marked Annexure 'B' to the counter affidavit filed by respondents 1 to 7. Respondent No. 13, however. by his order dated 16-8-1967 (Annexure 3) dismissed the said appeal filed by the petitioners.
5. Against the said order of dismissal of appeal the petitioners filed a revision, as contemplated under the Act, before the Commissioner, Patna Division (respondent No. 14). who also by his order dated 3-2-1972 (Annexure 4) rejected the revision application. Aggrieved by the said order the petitioners filed an application under Section 32 of the Act before the Member, Board of Revenue, who also by his resolution dated 18-8-1972 was pleased to dismiss the application (vide Annexure 5).
6. Supporting the impugned orders and resolution respondents 1 to 7 have filed a counter affidavit on 4-9-1974 inter alia denying the allegations made by the petitioners in the writ application, and contended that they had right to pre-empt and that the two sale deeds dated 14-10-1965, executed by respondents 8 and 9, were fake and created in order to defeat the right of pre-emption of respondents 1 to 7, as stated by respondents 8 and 9 themselves.
7. None has appeared on behalf of respondents 8 and 9 nor any counter affidavit has been filed on their behalf.
8. Learned counsel appearing on behalf of the petitioners has assailed the impugned orders and the resolution chiefly on the ground that the application under Section 16 (3) of the Act filed on behalf of respondents 1 to 7 was premature, since the application, was filed by them on 28-10-1965, whereas registration of the sale deed, executed by respondent No. 10 on 11-9-1965 in favour of respondents 8 and 9 was completed on 19-3-1966 under Section 61 of the Registration Act. On the basis of the application respondent No. 12 had taken cognizance of the application filed by those respondents on the same date, namely, 28-10-1965. According to learned counsel for the petitioners he had acted without jurisdiction. Therefore, his entire order is vitiated due to want of jurisdiction. In order to find support to his contention he has relied on a Bench decision of this Court in the case of Kauleshwar Singh v. Parmanand, 1972 Pat LJR 321 = (AIR 1972 Pat 407) where Untwalia J. (now Hon'ble Judge of the Supreme Court) and Akbar Hussain, J. were dealing with the provisions contained in Section 16 (3) of the Act. In that case the respondents had transferred the land by means of a registered sale deed executed on 16-11-1967, and the registration was completed on 11-12-1967. The petitioner in that case claiming to be the co-sharer, and an adjoining raivat filed an application under Section 16 (3) of the Act. Their Lordships held that a person claiming to pre-empt got a right to file an application only when the registration of a document of transfer was complete. It was repeatedly held that a Tribunal or an authority acting under a special statute derived his power to so act within the four corners of that statute. If the provisions of the statute were violated and specially in regard to the condition which conferred jurisdiction and power on the Tribunal or Authority to exercise it, then the order was without jurisdiction. If a proceeding was commenced by taking action on an application of registration of the sale deed, then cognizance of such a proceeding was without jurisdiction and void. That being so, the final order made in such a proceeding was also without jurisdiction. The point could be taken at any stage if it did not involve investigation of new and fresh facts. On the basis of the aforesaid decision of this Court learned counsel for the petitioners contended, that since the order of the Sub-Divisional Officer was without jurisdiction void, other orders and the resolution contained in Annexures 3 to 5 are vitiated and they were obviously without any jurisdiction.
9. The second point urged by learned counsel for the petitioners was with regard to the merit of the application. He submitted that the petitioners being raiyats of the adjoining lands in respect of at least 16 plots, as detailed under Annexure '1' and since they had purchased the same by the two sale deeds dated 14-10-1965 and they had partitioned the properties, the petitioners having purchased 1 1/4 annas share from respondents and amalgamated the same with their undisputed plots prior to the application filed by respondents 1 to 7 on 28-10-1965, the right of pre-emption of respondents 1 to 7 was defeated.
10. It will be convenient to deal with the contention of learned counsel for the petitioners under point No. 2 first. Mr. Thakur Prasad. learned counsel for respondents 1 to 7, contended that those respondents had not sought the right of pre-emption against the petitioners in their application dated 28-10-1965. It is true that the petitioners were made parties to the application as opposite party Nos. 1, 2, 3, 4 and 6, but in the prayer portion the right of pre-emption was claimed by respondents 1 to 7 only against respondents 8 and 9, who had subsequently withdrawn the money deposited by respondents 1 to 7, and not only accepted the right of pre-emption but also executed a sale deed of their entire properties in favour of respondents 1 to 7, referred to above. Mr. Thakur Prasad submitted that, if at all. the interest of only respondents 8 and 9 was affected by the impugned order (Annexure 2), therefore the application at the instance of the petitioners under Article 226 in this Court is not maintainable. In my opinion this submission of Mr. Prasad is not tenable. Reference may be made to the concluding portion of Annexure '2', which reads as:
"..... In view of the facts enumerated above. I am satisfied that the applicants are the Raiyats of the adjoining lands and it is, therefore, ordered that the applicants be put in possession of the disputed lands".
Therefore, by the said order the petitioners also are affected and are prejudiced. They can very well be said to be the agrrieved persons. According to the petitioners, they had purchased one house, and 1 1/4 annas interest in 16 out of 27 plots. To that extent, their interest is affected. It is true that at the appellate stage respondents 8 and 9 had stated that the two sale deeds, under which the petitioners are alleged to have acquired title and interest, were sham transactions and no consideration had passed, which fact, however, was disputed by the petitioners at the earliest opportunity. The matter is a disputed question of fact which cannot be investigated here. Nonetheless, the petitioners became aggrieved persons because of the order quoted above. Reference may be made to Venkateswara Rao v. Govt. of Andhra Pradesh, (AIR 1966 SC 828) where their Lordships have quoted with approval the following extract from the earlier decision in Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal, (AIR 1962 SC 1044 at p. 1047). dealing with the question of locus standi of the appellant in that case, to file a petition under Article 226 of the Constitution in the High Court :
"Article 226 confers a verv wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose.
It is, therefore, clear that persons other than those claiming fundamental rights can also approach the Court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder, but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right ..... The right that can be enforced under Article 226 also shall ordinarilv be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified."
Thereafter, their Lordships further held :
"Has the appellant a right to file the petition out of which the present appeal has arisen ? The appellant is the President of the Panchavat Samithi of Dharmajigudem. The villagers of Dharmajigudem formed a committee with the appellant as President for the purpose of collecting contributions from the villagers for setting up the Primary Health Centre. The said committee collected Rs. 10,000/-and deposited the same with the Block Development Officer. The appellant represented the village in all its dealings with the Block Development Committee and the Panchavat Samithi in the matter of location of the Primary Health Centre at Dharmajigudem. His conduct, the acquiescence on the part of the other members of the committee, and the treatment meted out to him by the authorities concerned support the inference that he was authorised to act on behalf of the committee. The appellant was, therefore, a representative of the committee which was in law the trustees of the amounts collected by it from the villagers for a public purpose. We have, therefore no hesitation to hold that the appellant had the right to maintain the application under Article 226 of the Constitution. This Court held in the decision cited supra that 'ordinarily' the petitioner who seeks to file an implication under Article 226 of the Constitution should be one who has personal or individual right in the subject-matter of the petition. A personal right need not be in respect of a proprietary interest, it can also relate to an interest of a trustee. That apart, in exceptional cases as the expression 'ordinarily' indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject-matter thereof. The appellant has certainly been prejudiced by the said order. The petition under Article 226 of the Constitution at his instance is, therefore, maintainable."
In this connection it will be useful to extract a passage from the judgment of the Privy Council in Attorney-General of the Gambia v. N'Jie, 1961-2 All ER 504 at p. 511 as follows :--
"The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busy-body who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests."
The Court of Appeal In Maurica v. London County Council, 1964-1 AH ER 779 at p. 782 quoted with approval the observations of the Privy Council, emoted above. In K. C. Pazhanimala v. State of Kerala. (AIR 1969 Ker 154) (FB) after surveying various decisions including that of the Supreme Court and the Privv Council, referred to above, their Lordships observed in paragraph 6 at page 159 as follows:--
"In our view the meaning given to the words 'person aggrieved' has to be applied to the expression 'person prejudicially affected'. We have therefore no doubt to hold that the several appellants are persons who are aggrieved because of the enforcement of the impugned order. The objection of the maintainability of the petition filed under Article 226 of the Constitution has only to be overruled."
Applying the above principle to the instant case, I have no doubt in my mind that the petitioners were aggrieved and were prejudicially affected by the order contained in Annexure '2' and the subsequent orders and resolution contained in Annexures 3 to 5. It is obvious that if the petitioners were not aggrieved they would not have filed an appeal, revision and application before the Member Board of Revenue.
11. Mr. Thakur Prasad in this regard submitted that the observation of their Lordships in 1972 Pat LJR 321 = (AIR 1972 Pat 4071 is not applicable to the instant case, because it involved investigation of new and fresh facts. He drew our attention to the observation of their Lordships in that case in which it was held that the point could be taken at any stage, if it did not involve investigation of new and fresh facts. On the basis of the said observation he contended that in the present case the two sale deeds, as stated by respondents 8 and 9, were fake and, therefore, the petitioners did not derive any title therefrom, and as such whether those sale deeds were sham transactions or not. could have been decided only by a competent Civil Court-He drew our attention to the order passed by the Additional Collector (Annexure 3). the relevant portion of which is to the following effect ;--
"Appellant First set, Dineshwar Singh and Muneshwar Singh (respondents 8 and 9) having withdrawn from the appeal on a disclaimer of title, over the land and on further describing the transfer in favour of appellants 'second set Ram Bahal Singh and others by them as 'sham' affair, the claim preferred by the appellant second set becomes a question of title, which is beyond the purview of the Land Ceiling Act and such a Question is not to be entertained by me......"
In my opinion, this contention of Mr. Prasad is also not acceptable. Reference may be made to Narendra Kumar v. Sheo-deni Ram, 1971 BLJR 528 = (AIR 1972 Pat 1) where Untwalia, J. (now Hon'ble Judge of Supreme Court) and Section Sarwar Ali, J., while dealing with Sections 16, 17 and 43 of the Act held that if an application under Section 16 (3) of the Act was allowed under Clause (iii), it would be binding on the real owner, if the question of benami was not raised by the ostensible owner, or if raised, it was decided against him or the real owner. Such a decision being binding on the real owner, it appeared that if the question was raised, then it was a question which was by or under the Act, required to be settled, decided and dealt with by the Board of Revenue, the appellate authority or the Collector within the meaning of Section 43 of the Act, which barred the jurisdiction of the Civil Court in regard to a question, which fell to be decided by the Revenue authorities. The language of Sub-section (2) of Section 17 would also indicate that the real owner in occupation of the land was also liable to be ejected by the Collector if action was taken under Section 17 of the Act. If this procedure was comprehensive enough, as undoubtedly it was. to so into disputed questions of fact as to who was the co-sharer and who was the adiacent raiyat, it was wide enough to take within its sweep the question of benami if it was raised before the Collector. On such evidence as might be produced before him or as might be permitted by him to be produced, he was competent to decide that question. In that view of the matter in my opinion Section 43 of the Act bars the jurisdiction of the Civil Court. In fact, the question whether it was sham transaction or not ought to have been decided by the authority under the Act under Section 17 (2). On that account also it is obvious that the order of the Additional Collector (Annexure 3) was bad bacause he failed to exercise his jurisdiction in deciding that issue himself or remanding the case back to the Sub-Divisional Officer for that purpose.
12. Mr. Thakur Prasad. however tried to persuade us to hold that the observation of their Lordships in the case of Narendra Kumar Ghose, just referred to above, is not applicable in the instant case, as their Lordships were considering matter relating to 'benami transaction' whereas in the present case there is the question of 'sham transaction', in which no consideration had passed. In my opinion that would not make any difference, and would, not take out of the purview of Sections 17 (2) and 43 of the Act Mr. Prasad has not been able to substantiate his contention by any authoritative decision on the point.
13. The next question, which arises for consideration, is as to whether the entire orders and the resolution contained in Annexures 2 to 5 have to be quashed or only that portion which affects the right and interest of the petitioners. As already mentioned the petitioners had purchased only a fractional share in 16 out of 27 plots of land and a house; whereas the right to pre-empt was granted to respondents 1 to 7 with respect to the entire lands, which respondents 8 and 9 had purchased from respondent No. 10. In my opinion, the entire impugned orders (Annexures 2 to 5) have to be auashed. As mentioned earlier, respondent No. 12 had taken cognizance and had assumed jurisdiction on 28-10-1965 much before registration was completed on 19-3-1966, which is contrary to the decision of this Court in 1972 Pat LJB 321 = (AIR 1972 Pat 407) quoted above. The application by the petitioners is also under Article 227 of the Constitution. In our supervisory jurisdiction under that Article, if we come across any order, which is contrary to law. we have ample jurisdiction to quash the same suo motu. If the order passed by respondent No. 12 was void and without jurisdiction, the subsequent orders and the resolution, which arise out of the order of respondent No. 12 are also bad and without jurisdiction.
14. Lastly, Mr. Prasad submitted that in the instant case since respondents 1 to 7 have, also acquired a sale deed from respondents 8 and 9. it has gone beyond the purview of the Act. According to him, respondents 1 to 7 have now acquired title not only because of the impugned orders but also because of the sale deed dated 5-10-1967. If that is so. respondents 1 to 7 should have no grievance in case the impugned orders and the resolution (Annexures 2 to 5) are quashed.
15. Since the contention of the learned counsel for the petitioners under point No 1 succeeds, it is not necessary to deal with his contention under point No. 2.
16. After careful consideration. I allow this application and quash the impugned orders, and the resolution contained in Annexures 2 to 5. In the circumstances there will be no order as to costs.
Birendra Prasad Sinha. J.
I agree.