Jharkhand High Court
Sheela Devi Wife Of Baldev Sahu Resident ... vs The State Of Jharkhand on 27 July, 2018
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 1529 of 2003
Sheela Devi wife of Baldev Sahu resident of village Dolaicha, P.O. Nihalu
Amba Toli, P.S. Lapung, Distt. Ranchi ... ... Petitioner
Versus
1.The State of Jharkhand
2.The Member, Board of Revenue, Jharkhand
3.The Additional Collector (Land Ceiling), Ranchi
4.The Land Reforms Dy. Collector, Ranchi
5. Hiralal Sahu son of late Jhuman Sahu resident of Village: Dolaicha, P.S.
Lapung, Dist. Ranchi
6.Sita Ram Sahu son of Late Lilu Sahu resident of Village: Dolaicha, P.S.
Lapung, Distt Ranchi ... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Raj Nandan Sahay, Sr. Advocate Mr. Prabhas Kumar, Advocate For the Respondents-state : Mr. A.K. Thakur, A.C. to S.C. (L&C) For the Respondent No. 5 Mr. Anil Kumar Sinha, Advocate For the Respondent No. 6 Mr. Sanjay Kumar Pandey, Advocate
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14/27.07.2018
1. Heard Mr. Raj Nandan Sahay, learned senior counsel appearing on behalf of the petitioner assisted by Mr. Prabhas Kumar, Advocate.
2. Heard Mr. Anil Kumar Sinha, counsel appearing on behalf of the private respondent no. 5.
3. Heard Mr. Sanjay Kumar Pandey, counsel appearing on behalf of respondent no. 6.
4. Heard Mr. A.K. Thakur, A.C. to S.C. (L&C) appearing on behalf of the respondents-state.
5. This writ petition has been filed for the following reliefs:-
For quashing the order dated 15.02.2003 passed by the Member, Board of Revenue, Jharkhand (Respondent No. 20) as contained in Annexure-6 in Board Case No. 59/190 of 2001-2000 dismissing the Revision petition filed by the petitioner under Section 32 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, hereinafter referred to as the Act of the Bihar Land Ceiling Act and upholding the ex- parte order passed by the Appellate Court and also for quashing of the order dated 26.07.2000 as contained in Annexure-5 passed by he Addl. Collector (Land Ceiling), Ranchi (Respondent No. 3) in Pre-emption Case No. 2/93.2
6. Counsel for the petitioner submits that the petitioner is a purchaser of the property by virtue of registered sale deed dated 15.07.1986 executed by the respondent no. 6 namely Sita Ram Sahu. He submits that after purchase of the property, an application for pre- emption was filed on 05.04.1989 after expiry of 2 years 9 months from the date of sale deed dated 15.07.1986. The application for pre- emption was filed under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961 (hereinafter referred as Act of 1961). By referring to Section 16 of the said Act, the counsel for the petitioner submits that the application for pre-emption has to be filed within a period of three months from the date of registration of the sale deed, but in the instant case, the application was filed after expiry of more than 2 years 9 months from the date of registration of the sale deed. By referring to the application for pre-emption filed by the respondent no. 5, counsel for the petitioner submits that in the application for pre-emption, the date of registration has been mentioned as 7th day of January 1989, although the deed has been registered on 15.07.1986. Counsel for the petitioner further submits that upon notice being issued, the petitioner duly appeared before the authority and raised the objection that the application for pre-emption is barred by limitation.
7. On the merits of the case, the specific case of the petitioner was that the petitioner is a co-sharer of the vended property and is also an adjoining raiyat as that the husband of the petitioner is an adjoining raiyat and petitioner is the family member of the husband of the petitioner. Counsel for the petitioner submits that in view of the aforesaid status of the petitioner of adjoining raiyat, the petitioner is the co-sharer of the vended property as well as adjoining raiyat of the vended property, she has right to purchase the property and accordingly the claim for pre-emption filed by the respondent no. 5 herein was fit to be rejected. Further case of the petitioner was that the respondent no. 6 is stranger who is neither co-sharer of the vended property nor the adjoining raiyat.
8. Counsel submits that the application for pre-emption was finally rejected by the authority vide order dated 16.01.1993 on merits.
3However, no finding was given by the authority on the point of limitation. He further submits that against the order dated 16.01.1993, the private respondent herein i.e. respondent no. 5 filed appeal before the appellate authority and the appeal was allowed vide order dated 26.07.2000 and the matter was heard by the appellate authority in the absence of the petitioner. The appellate authority in turn allowed the appeal and held that the appellant who is respondent no. 5 herein is not only adjoining raiyat but also the co-sharer of the property.
9. Against the appellate order, the petitioner herein filed revision before the Board of Revenue which was numbered as Revision Case No. 59/190 of 2001-2000 and the revisional authority vide order dated 15.02.2003 after hearing the parties has dismissed the revision application.
10. Counsel for the petitioner further submits that although the point of limitation was taken by the petitioner in the first show cause filed before the authority itself, but the point of limitation had not been considered by any of the authorities and the case has been decided only on merits. He further submits that although the point of limitation has not been specifically taken in the writ petition, but the same is point of law and there being a particular period prescribed under the Statute for filing application for pre-emption and the same having not been filed within the stipulated time frame, it was for the authority to consider the point of limitation . It has been held by the Hon'ble Supreme Court in the judgment reported in (2016) 14 SCC 761 that it is the duty of the trial court to consider the point of limitation even if it is not raised by the parties. He submits that in this particular case point of limitation was specifically raised before the authority in the show cause itself, but this aspect of the matter has not been considered by the authority. He further submits that the authorities might have been mislead by the date of the registration of the deed as mentioned in the application for pre-emption. It was stated to be of the year 1989, although the registered deed was of the year 1986. He further submit that the provisions of Section 5 of the Limitation Act 1963 is not applicable to the provisions of aforesaid Act of 1961 and 4 accordingly the petition for delay in filing the petition for pre- emption could not have been condoned by the authority. He submits that on this ground alone, the application for pre-emption ought to have been rejected by the authorities below. Accordingly, the impugned orders are perverse and are fit to be set aside. Counsel for the petitioner has relied upon the judgment passed in the case reported in 1989 PLJR 958 to submit that the provisions of Limitation Act,1963 is not applicable to the proceeding under the aforesaid Act of 1961.
11. Counsel for the petitioner has also referred to the definition of the term "family" as defined in Section 2(ee) of the Act of 1963 and has submitted that as per the definition of the family, 'it includes a person, his or her spouse and minor children and it has been categorically mentioned in the definition itself that the personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of the Act. He has also referred to the definition of land holders as defined under the Act , which means a family as defined in clause (ee) holding land as raiyat or as under raiyat. He has also referred to the definition of raiyat which means primary a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family. Counsel for the petitioner submits that the petitioner was a co-sharer and adjoining raiyat of the vended property and accordingly application for pre-emption filed by the private respondent herein was not maintainable, as the condition precedent for applying the provisions of Section 16 (3) of the aforesaid Act of 1961 was totally absent. Counsel for the petitioner further submits that the pre-emptor was neither raiyat nor co-sharer of the vended property and accordingly the application filed by the pre-emptor was fit to be rejected. He submits that this aspect of the matter has not been properly considered by the authorities below and accordingly the impugned orders are perverse and fit to be set aside.
12. Counsel for the private respondent no. 5, who is the pre-emptor, submits that although the deed was registered in the year 1986 but the date which has been mentioned in the application for pre-
5emption dated 7th January 1989 was the date of receipt of the copy of the deed and he submits that the description of the property which has been mentioned in the application for pre-emption is correct. He further submits that the purchaser of the property i.e. the petitioner was neither the co-sharer nor the adjoining raiyat of the vended property and the private respondent herein was the adjoining raiyat of the vended property and therefore the application for pre-emption was rightly filed by the pre-emptor. He submits that in the application for pre-emption itself he has indicated that the description of the property in the sale deed of the petitioner was wrongly given and he is the adjoining raiyat of the property and for that a map was also filed. He has also relied upon the registered deed by which he had purchased adjoining property from Sita Ram Sahu of the same Khata number and plot number. He submits that the original authority had wrongly dismissed the application for pre-emption and thereafter the appellate authority passed the order in his favour after considering the entire materials on record and revisional authority also considered the entire materials on record and dismissed the revision filed by the petitioner herein and held that the private respondent herein is the adjoining raiyat of the property and the petitioner is neither the co- sharer of the property nor the adjoining raiyat of the property. Accordingly, he submits that the application for pre-emption has been rightly decided by the authority which does not call for any interference. He submits that the findings of facts which has been recorded by the revisional authority is based on appreciation of evidence and there is no scope of re-appreciation of evidence in writ jurisdiction in absence of any perversity.
13. However, during the course of argument he could not indicate any discussion in connection with the issue of limitation in filing application for pre-emption although he could not dispute that the point of limitation was raised by the petitioner at the threshold at the time of filing show cause itself. He further submits that contention of the petitioner that limitation act is not applicable, is not correct in view of the judgment passed by the Hon'ble Supreme Court arising out of the said Act reported in 1991 1 PLJR (SC) 3 (1) 6 wherein it has been held that limitation act would be applicable to a proceeding under the aforesaid Act of 1961 in view of Section 16 (3) of the Act read with Section 29 of the Limitation Act 1963. However, he could not disputed the fact that any of the authorities have not recorded any finding so far as point of limitation is concerned. He submits that the parties have joined issues on the merits of the case and the case has been decided on the merit and the impugned order may not be set aside.
14. Counsel appearing on behalf of the purchaser, Respondent no 6 submits that he is supporting the case of the petitioner and he submits that the impugned orders are perverse and fit to be set aside and he adopts the argument which has been done by the counsel for the petitioner.
15. Counsel appearing on behalf of the respondent State submits that so far as merits of the case is concerned, the findings of fact has been arrived at by the revisional authority after considering the evidence of the parties, and, the petitioner has not been able to show any perversity or illegality in those findings , therefore the impugned orders may not be set aside. However, he has also not disputed the fact that there is no finding on the point of limitation by any of the authority although this point was specifically raised by the petitioner at the time of filing show cause itself.
16. Counsel for the State further submits that the private respondent herein has relied upon two registered sale deeds executed in his favour to claim be adjacent raiyat of the property and the petitioner never disputed the boundary which has been mentioned in two registered sale deeds already executed in favour of the petitioner. However, the respondents have disputed the boundary which has been mentioned in the sale deed of the petitioner and finding has been recorded by the courts below that the petitioner was not the adjacent raiyat of the vended property and the map which was submitted by the private respondent was never controverted by the petitioner.
17. After hearing counsel for the parties and after considering the materials available on record this court finds that as per admitted case of the parties the sale deed is dated 15.07.1986 and after a gap 7 of 2 years 9 months the application for pre-emption was filed and upon notice , interalia, the specific point of limitation was raised by the petitioner before the learned authority below. The authorities below appears to have totally ignored the point of limitation which was raised by the petitioner. In view of the judgment passed by the Hon'ble Supreme Court reported in (2016) 14 SCC 761, it is the duty of the trial court to consider the point of limitation even if it is not raised by the parties. It would be useful to quote para 8 of the said judgement , which reads as follows:-
Bar of limitation- Every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence."
It is thus incumbent upon the court to satisfy itself that the suit is not barred by limitation, regardless of whether such a plea has been raised by the parties. In Union of India v. British India Corpn. Ltd. it has been opined that : (SCC p. 508, para 7)
7. ......the question of limitation is a mandate to the forum and, irrespective of the fact whether it was raised or not, the forum must consider and apply it, if there is no dispute on facts".
In such circumstances , non consideration of point of limitation inspite of having been raised at the first instance, makes the impugned order perverse and is accordingly fit to be set-aside.
18. So far as other points regarding the claim of the petitioner that the petitioner being the family member of her husband and that the adjoining property stands in the name of her husband and accordingly she becomes the adjacent raiyat of the vended property and also co-sharer of the property adjoining to the vended property, this court finds that these submission have been duly considered by the revisional authority and this court is of the considered view that the wife cannot automatically become the co- sharer of the property standing in the name of her husband .It was the specific case of the petitioner before the revisional authority that southern boundary recorded in the sale deed involved in this case was purchased by her husband and not by the petitioner.This court also finds that the term family has not been used in section 16 of the aforesaid act of 1961 and accordingly this court is of the considered 8 view that for the purposes of claim and counter claim under section 16(3) of the aforesaid Act of 1961 , the wife cannot claim to be the co-sharer of the property standing in the name of her husband and thus cannot claim to be the adjoining raiyat of the vended property on such basis. In this view of the matter, the finding in the impugned order that the petitioner is neither the adjacent raiyat of the vended property nor the co-sharer of the vended property, has been rightly decided by the impugned order and such finding does not call for any interference under Article 226 of the constitution of India. Learned authority below has also given a finding that the private respondent no. 5 herein was the adjacent raiyat of the vended property and this finding has been given after considering the materials on record including the undisputed map which was produced by the private respondent who had challenged the boundary shown in the sale deed dated 15.07.1986 which was subject matter of the pre-emption application. Thus finding of fact in connection with claim of pre-emption on merits of the matter does not call for any interference.
19. But the fact remains that point of limitation is certainly an important issue and this aspect of the matter has not been considered by the authorities below. The contention of the petitioner that the limitation Act, 1963 would not apply is hereby rejected on account of the reasons as follows.
20. In the case reported in AIR 1986 PATNA 832 ( Krishna Kumar Choudhary versus alliance agro industries private limited ) it was held at para 6 that the scheme of the aforesaid Act of 1961 with particular reference to section 16 (3) (1) firmly suggest the exclusion of the limitation Act. The party namely Krishna Kumar Choudhary ultimately filed case before the Hon'ble supreme court which was decided vide judgement passed in S.L.P. (CIVIL) NO 5750 OF 1986 AND CIVIL APPEAL NO 439 OF 1987 reported in 1991(1) SC 3 ( Krishna Kumar Choudhary versus alliance agro industries private limited) and vide para 2 it has been held as under
:-
"We are if the opinion that Section 29 of the Limitation Act applies to the facts and circumstances of this case and that it is now for the Deputy Collector, Land Reforms and the Collector 9 under the Act to consider whether the delay in filing the proceeding should be condoned. Thereafter the Deputy Collector Land Reforms and the Collector under the Act will dispose of the case on the remaining points in accordance with law."
21. This judgement was also followed by Hon'ble Patna High Court in judgement reported in 1998(2) PLJR 693 ( Kula Nand Jha versus State of Bihar) .
22. Accordingly this court is of the considered view that the authorities below ought to have considered the point of limitation as raised by the petitioner in the show cause filed by the petitioner.
23. . As the point of limitation has not been considered by the authorities below, this court is of the considered view that this point is required to be examined by the original authority as the same appears to be mix question of facts and law which cannot be decided in the writ jurisdiction. Although this point has not been specifically raised by the writ petitioner in the writ petition but has been argued during the course of argument and has been responded to by the counsel appearing on behalf of the respondents. In view of the judgment reported in (2016) (14) SCC 761 this court finds that the authorities below have failed in its duty to examine as to whether the application for pre-emption was filed within the time or not . Further , if the petition is held to be time barred, then no relief can be granted to any party howsoever good the case may be on merits . Therefore this court although is not inclined to interfere with the merits of the case, but , the matter is remitted back to the authority concerned i.e. learned Land Reforms Deputy Collector, Ranchi to examine the point of limitation so far as application for pre-emption is concerned and pass specific order on this point after hearing counsel for the parties and after considering the materials available on record and order should be passed on this specific point . The Deputy Commissioner Land Reforms is directed to consider whether the delay in filing the petition for pre- emption should be condoned or not on the basis of materials already available on record. If he ultimately finds that the delay is fit to be condoned then the private respondent herein will be entitled to have benefit of the order which has been passed in his 10 favour and if ultimately he finds that the delay is not fit to be condoned, then it is the petitioner who would be entitled to continue to enjoy the property and the application for pre-emption will stand dismissed on the point of limitation.
24. If any of the parties are aggrieved by the final order on the point of limitation to be passed by the Deputy Commissioner Land Reforms, they may seek their remedy as per the provisions of aforesaid Act of 1961.
(Anubha Rawat Choudhary, J.) Binit/A.F.R.