Patna High Court
Birendra Upadhaya & Anr vs The State Of Bihar & Ors on 1 July, 2018
Author: Nilu Agrawal
Bench: Ajay Kumar Tripathi, Nilu Agrawal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.530 of 2016
In
Civil Writ Jurisdiction Case No.10730 of 1992
======================================================
1. Tushar Kant Upadhaya
2. Ashwani Kant Upadhaya
Both Son of Late Chaturbhuj Upadhyay R/o vill. - Parasiya, P.S.
Buxer, ( M ), Distt. - Buxar
3. Veena Ojha @ Bina Devi W/o Heera Kant Ojha R/o Moh. -
Mitra Mandal Colony, Shaket Vihar, Anishabad, Patna 800002
4. Pushpa Tripathi @ Puspa Devi W/o Deoprakash Tripathi R/o
Mohl - Kadam Kuan, Indra Bhawan, D - Block, Patna 800003
5. Sunita Pandey @ Sunita Devi W/o Rakesh Kumar Pandey R/o
Moh. - Badka Lauhar, Post - Lauhar Farna, Distt. - Arrah
... ... Appellants
Versus
1. The State of Bihar
2. Additional Member Board of Revenue, Bihar, Patna
3. Additional Collector, Bhojpur at Arrah
4. Deputy Collector, Land Reforms, Buxar, P.S. Buxar, District - Buxar
5. Din Bandhu Upadhayay Son of Late Basudeo Upadhaya R/o vill. - Parasiya,
P.S. Buxer, ( M ), Distt. - Buxar
6. (i) Kamta Tiwari, grand son of Kedar Nath Tiwari,
(ii) Sumant Tiwari, grand son of Kedar Nath Tiwari
Both son of Late Raghunath Tiwari, R/o vill. - Dalsagar, P.S. Buxer, District -
Buxar
7. Pushp Chandra Pandey
8. Manaish Chandra Pandey, both son of Late Gaytri Pandey @ Gyani Devi R/o
Mohl. - Patel Nagar, Gokul Path, Patna 800023
... ... Respondents
======================================================
with
Letters Patent Appeal No. 542 of 2016
In
Civil Writ Jurisdiction Case No.10728 of 1992
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1. Birendra Upadhaya Son of late Shankar Dayaln Upadhyay R/o
Vill- Parasiya, PS Buxer, (M), Distt- Buxar.
2. Kalawati Devi Wife of Sri Banka Bihari panday, D/o late
Shankar Dayal Upadhyay R/o Vill- Parasiya, PS Buxer (M) Distt
Buxar at Present R/o Vill+PS+PO- Brahampur, Distt Buxar.
... ... Appellants
Versus
1. The State of Bihar.
2. The Additional Member Board of Revenue, Bihar, Patna.
3. The Additional Collector, Bhojpur at Arrah.
4. Deputy Collector, Land Reforms, Buxar, PS Buxar, District Buxar.
Patna High Court LPA No.530 of 2016 dt. 02-07-2018
2/9
5. Ram Udar Upadhaya, Son of late Sukhdeo Upadhaya R/o Vill- Parasiya, PS
Buxer(M), Distt Buxar.
6. (i) Kamta Tiwari, grand son of Kedar Nath Tiwari,
(ii) Sumant Tiwari, grand son of Kedar Nath Tiwari
Both son of Late Raghunath Tiwari, R/o vill. - Dalsagar, P.S. Buxer, District
-
Buxar
7. (i) Prabhawati Devi (wife)
(ii) Paras Muni Upadhyay(son)
(iii) Ajit Kumar Upadhyay (son)
(iv) Kapil Muni Upadhya (son), All are R/o village Parasiya, Post Buxar
(M), Distt. Buxar
(v) Salesh Devi, D/o Kalika Upadhya, W/o Baban tiwari, R/o village
Arjunpur, P.O. Ahirtoli, P.S. Buxar(I), District Buxar
(vi) Manju Devi, D/o Kalika Upadhya, W/o Umesh Mishra, R/o Village
Kota, Anjorepur, P.S. Narati, District Baliya (U.P.)
8. Krishna kant Upadhya
9. Sanjay Kumar Upadhaya Both son of late Ramanuj Upadhya R/o Vill-
Parasiya, PS Buxer (M), Distt Buxar.
10. Bankteshwar Panday Son of late Barmeshwar Nath Pandey
11. Shanti Devi
12. Salandra Pandey
13. Rabindra Pandey
14. Kanti Devi &
15. Santosh Kumar Pandey
All are Son of Bankteshwar pandey they all are R/o Vill+PO- Matila, PS
Koransari, District Buxar.
... ... Respondents
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Appearance :
For the Appellants : Mr. T.N. Matin, Sr. Advocate
Mr. Digvijay Kumar Ojha, Advocate
For Respondent No. 5 : Mr. Uday Shankar Sharan Singh, Advocate
For the State : Mr. Sushil Kr. Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI
and
HONOURABLE JUSTICE SMT. NILU AGRAWAL
C.A.V. JUDGMENT
(Per: HONOURABLE JUSTICE SMT. NILU AGRAWAL)
Date : 02-07-2018
Two intra-court appeals have been filed by the pre-
emptors assailing a common order passed by the learned Single
Judge in two writ applications setting aside the order of the
learned Additional Member, Board of Revenue, Bihar, Patna
Patna High Court LPA No.530 of 2016 dt. 02-07-2018
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dated 30.03.1992 in two separate revision proceedings where
their claim for pre-emption had been allowed and the order
passed by the DCLR and the Additional Collector in favour of
the writ petitioners-purchasers has been upheld.
2. The short facts giving rise to the two writ
applications (C.W.J.C. No. 10728 of 1992 and C.W.J.C. No.
10730 of 1992) filed by the writ petitioners-respondent no. 5, is
that two sale deeds were executed by respondent no. 6 Kedar
Nath Tiwari(substituted by his legal heirs) in favour of Ram Udar
Upadhaya (since deceased) and substituted by his legal heirs/
representatives and the other in favour of Din Bandhu Upadhaya
(also substituted by his legal heirs) on payment of consideration
money on 28.12.1978 duly registered on 29.01.1978. Respondent
no. 5 (petitioner in C.W.J.C. No. 10728 of 1992) had purchased
from Kedar Nath Tiwari (vendor) plot no. 32(1.36 acres), plot no.
43 (55 decimals) and plot no. 84(73 decimals) appertaining to
khata no. 19 situated in village Parasia, P.S. Buxar in the district
of Buxar by a registered sale deed dated 29.01.1979 for a
consideration of Rs. 20,000/-. Respondent No. 5(petitioner in
C.W.J.C. No. 10730 of 1992) had purchased plot no. 480 (81
decimals), plot no. 57 (1.36 decimals) and plot no. 9 (56
decimals) appertaining to khata no. 19 situated in village Parasia
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in the district of Buxar from the said Kedar Nath Tiwari, which
was also registered on 29.01.1978. The original pre-emptors
Shankar Dayal Upadhyay and Chaturbhuj Upadhaya both
substituted by their legal heirs, who are appellants in the present
appeal, claimed pre-emption 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 Deputy Collector Land Reforms, Buxar, which gave
rise to Ceiling Case No. 05/1979-80 and Ceiling Case No.
04/1979-80. According to the pre-emptors they held land adjacent to the vended plots being a cosharer and adjoining raiyat of the said plots. They claimed pre-emption of the said vended plots. The DCLR by order dated 10.03.1980 held the pre-emptors in C.W.J.C. No. 10728 of 1992 not to be an adjoining raiyat to plot nos. 32 and 43 as there existed a public road between plot no. 32 of the vendee and plot no. 33 of the pre-emptor having a separate plot no. 36, as such, plot nos. 32 and 43 did not constitute a compact block. It was also disputed that plot no. 33 claimed by the pre-emptor to be owned by him belonged to one Mostt. Budhiya, who died in the year 1978 leaving behind her daughter as the legal heir. The appeal filed before the Additional Collector, Bhojpur, Ara by the pre-emptor giving rise to Appeal Patna High Court LPA No.530 of 2016 dt. 02-07-2018 5/9 No. 15/1988-89 was also dismissed on 12.08.1991 holding that because of existence of plot no. 36, which was a District Board road, the pre-emptors were not boundary raiyats.
3. So far as the case of the pre-emptors (appellants in C.W.J.C. No. 10730 of 1992) before the DCLR is concerned, vide Ceiling Case No. 04/1979-80 they claimed to be boundary raiyat on being owners of plot no. 49 and 481 but the vendees- writ petitioners claimed that with regard to plot no. 57 they were themselves boundary raiyat as plot no. 55 was acquired by them by virtue of registered deed of Bajidawa dated 24.07.1979 from one Sheo Bihari Upadhyay, hence, the DCLR, Buxar upheld the claim of the writ petitioner that he was himself adjoining raiyat being owner of plot no. 55, which is adjacent to plot no. 57, hence, pre-emption was disallowed. The appellant-pre-emptor moved the Additional Collector, Bhojpur at Ara in Appeal No. 14/1988-89 further expanding their claim stating that plot no. 49, which is on the boundary of plot no. 57, was acquired by them from one Moti Ranu Kuer by a registered deed of gift but was challenged by the vendee that the deed of gift was found to be a fabricated one by the Consolidation Authorities. As regards being adjoining raiyat of plot no. 9 being owner of plot no. 84 which was situated on the southern boundary of plot no. 9 held by the Patna High Court LPA No.530 of 2016 dt. 02-07-2018 6/9 pre-emptors, it was held by the Appellate Authority that the claim based on the deed of exchange was not maintainable as it was not registered. The pre-emptors then moved the learned Additional Member, Board of Revenue, Bihar, Patna in Revision Case No. 325 of 1991 and 326 of 1991. The revisional authority had based his finding on an erroneous premise and the learned Single Judge had this to say :
"18. From the impugned order I find that the learned Additional Member Board of Revenue has wrongly mentioned in his order that the original court, i.e. the Court of Deputy Collector, Land Reforms had dismissed the pre-emption application as not maintainable on the ground that the pre-emptor had not mentioned in Schedule I of the pre-emption application, nature of the land transferred as required under Rule 19 of the Rules framed under the Act and Form LC-13. From the impugned order I find that he has considered this aspect in detail referring to decisions of High Court and Supreme Court that pre- emption application could not have been rejected by the Deputy Collector, Land Reforms on such technical grounds. I have perused the orders passed by the Deputy Collector, Land Reforms. I find that there is absolutely no mention of non- compliance of Rule 19 of the Rules framed under the Act and Form LC-13, for the purpose of rejecting pre-emption application as not maintainable. The manner in which learned Additional Member, Board of Revenue has passed the impugned order is indicative of the fact that he did not even peruse the order of the Deputy Collector, Land Reforms and took Patna High Court LPA No.530 of 2016 dt. 02-07-2018 7/9 into account certain aspects which were absolutely not there in the order passed by the original Court. The order shows lack of application of a judicial mind and is suggestive of the fact that the impugned order is based on irrelevant considerations.
19. In view of the aforesaid discussion, I am of the considered view that the impugned order, dated 03.10.1992 passed by Shri B.K. Singh, learned Additional Member, Board of Revenue, Patna in Revision Case No. 325 of 1991 cannot be sustained and is, accordingly, set aside.
20. In CWJC No. 10728 of 1992, as already noticed, the vended lands relate to Plot No. 32 (1.36 acre) Plot No. 43 (.33 decimal) and Plot No. 484(.73 decimal) of Khata No. 19. The petitioner in this case claimed to be adjoining raiyat of the vended land on the ground of his ownership over the lands of Plot Nos. 33, 485 and 483 of Khata No. 54. The vendee took specific plea that the pre-emptor was not adjacent raiyat of all the vended lands. He further took a plea that there was a path-way/ road between the vended lands of Plot Nos. 32 and 43. The vendee also took a plea that land of Plot No. 33 did not belong to the pre-emptor, rather, belonged to one Budhiya who died in the year 1978 whereafter, her heirs inherited the said property. The pre-emptor, on the other hand, took a plea that he was the successor of land of Plot No. 33 belonging to Budhiya, who had died issueless, which was adjacent to vended Plot No. 32. The Deputy Collector, Land Reforms dismissed the pre-emption application on the ground that the pre-emptor could not prove that the said Plot No. 33 belonged to him. Neither the said land was mutated in the name of the pre-emptor nor there was any entry in the consolidation register to this Patna High Court LPA No.530 of 2016 dt. 02-07-2018 8/9 effect. He accordingly, held the pre-emptor not to be adjoining raiyat in order to claim successfully, right of pre-emption under Section 16(3) of the Act. From the order passed by the Deputy Collector, it appears that the vendee of this case had taken specific plea that there existed a street between the lands of Plot Nos. 32 and 43. Therefore, even if, on the basis that the pre-emptor was the owner of land of Plot No. 33, he could not prove that he was adjoining raiyat of vended land of Plot No. 43 also.
21. In this case also, the learned Additional Member Board of Revenue in the order under appeal passed in Revision Case No. 326 of 1991 mechanically recorded that the Deputy Collector, Land Reforms had rejected the pre-emption application on technical grounds of violation of provisions of Rule 19 of the Rules and non-compliance of filling of Form under LC- 13 of the Rules framed under the Act. On comparison of two orders under challenge in the present cases, I find that paragraphs 5 and 6 of both the orders are identical. He has considered something which was not there in the order of the Deputy Collector, Land Reforms at all. Further, learned Additional Member, Board of Revenue, in the impugned order has acknowledged that lands of plot Nos. 32 and 43 are separated by a kacha village pathway, but still held the pre-emptor to an adjoining raiyat of both the plots on the ground that the said pathway is not held by any raiyat for any agricultural purpose and is meant to be utilized by the public. The reasoning of learned Additional Member Board of Revenue is not tenable at all. As has been discussed above, adjoining lands would mean that the land are joined to each other. Lands would be said to be joined Patna High Court LPA No.530 of 2016 dt. 02-07-2018 9/9 only if the boundaries of the two lands touch each other. The order under challenge, passed by the learned Additional Member Board of Revenue cannot be sustained."
4. From the observations and discussions made above, the order passed by the learned Single Judge does not suffer from any infirmity and, thus, calls for no interference.
5. Appeals are dismissed.
( Nilu Agrawal, J) I Agree.
Ajay Kumar Tripathi, J (Ajay Kumar Tripathi, J) Rajesh/-
AFR/NAFR NAFR CAV DATE 20.06.2018 Uploading Date 02.07.2018 Transmission Date NA