Patna High Court
Ram Janam Gareri vs Narbadeshwar Singh And Ors. on 11 January, 1973
Equivalent citations: AIR1973PAT396, AIR 1973 PATNA 396
JUDGMENT S.N.P. Singh, J.
1. This application under Articles 226 and 227 of the Constitution arises out of a proceeding under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be called "the Act").
2. The relevant facts for the disposal of this application may be stated as follows :-- The petitioner purchased a portion of plot No. 1075 of khata No. 225 measuring 2 kathas and 1/2 dhurs of land in village Raghunathpur. police station Brahmpur, in the district of Shahabad by a sale deed which was executed on the 30th of April. 1965, and was registered on the 12th of May. 1965. It appears that three sale deeds including the sale deed in favour of the petitioner were executed on the same date in different names. Narbadeshwar Singh (respondent No. 1) filed an application under Section 16 (3) of the Act claiming pre-emption on the ground that he was the adjacent raiyat. The application which was filed by him is dated the 26th of July. 1965. There is an endorsement on the top of the application which reads "Ceiling clerk" and it is signed by the Sub-Divisional Officer bearing the date 26th July. 1965. It appears from the order sheet of the proceeding that on the 13th of September, 1965, the Sub-Divisional Officer issued notices to various persons including the petitioner to show cause as to why the prayer of the applicant should not be allowed. The application was ultimately taken up for hearing on the 18th of August. 1966. by the Sub-Divisional Officer. After hearing both the parties, the Sub-Divisional Officer reserved the order. Curiously enough, the Sub-divisional Officer for the reasons best known to him did not pass the final order for nearly one and a half years. On the 30th of March, 1968. he transferred the case to the file of the Land Reforms Deputy Collector for disposal. The Land Reforms Deputy Collector by his order dated the 2nd of November. 1968 (Annexure 3) allowed the application of respondent No. 1 end directed the petitioner to convey the land to him as per terms and conditions of the sale deed in question by the 30th of November. 1968. Being aggrieved by the order of the Land Reforms Deputy Collector, the petitioner filed an appeal which was heard by the Sub-divisional Officer, Buxar. The learned Sub-divisional Officer by his order dated the 14th of November, 1969 (Annexure 4). dismissed the appeal. The petitioner then moved the Board of Revenue in revision under Section 32 of the Act. The Additional Member. Board of Revenue, who heard the application in revision, by his order dated the 31st of August. 1970. dismissed the application (Annexure 5). The petitioner thereafter filed the present writ application in this Court challenging the validity of the orders as contained in Annexures 3. 4 and 5 of the writ application.
3. Mr. Ras Bihari Singh, learned counsel appearing for the petitioner, raised two contentions. In the first place, he submitted that the application under Section 16 (3) of the, Act was filed beyond the prescribed period of limitation. Learned counsel, however, very fairly gave up the point on looking at the order sheet which shows that the application was actually filed by respondent No. 1 on the 26th of July. 1965 and not on the 13th of September, 1965, when cognizance was taken and notices were issued.
4. The second contention which was raised by learned counsel appearing for the petitioner is that the entire proceeding was vitiated because the Sub-divisional Officer had no jurisdiction to transfer the case to the Land Reforms Deputy Collector. The question whether the Sub-divisional Officer has jurisdiction to transfer a proceeding under Section 16 (3) of the Act from his file to the file of the Land Reforms Collector was considered by this Bench in C. W. J. C. No. 1544 of 1970 and C. W. J. C. No. 1545 of 1970 (Pat). (Chandra Kant Jha v. Naren-dra Narain Mishra) decided on the 27-11-1972 and it was held in that case that the Collector of the district is only authorised to withdraw an application or proceeding pending before any officer exercising the powers of Collector under the Act and either to dispose it of himself or to transfer it to any other such officer for disposal. It was further held that the Sub-divisional Officer had no jurisdiction to transfer the cases from his file to the file of the Land Reforms Deputy Collector. The above view was taken on an interpretation of the provisions of Section 31 of the Act. In spite of this decision, learned counsel appearing for respondent No. 1 submitted that no error of law was committed by the Sub-divisional Officer in transferring the case from his file to the file of the Land Reforms Deputy Collector. A copy of the notification of the Revenue Department dt./- the 20th of May. 1967. was produced by which the Land Reforms Deputy Collectors were empowered to discharge the functions of the Collector under Sub-section (3) of Section 16 of the Act within the local limits of their respective jurisdiction. Learned counsel submitted that as a result of this notification the Land Reforms Deputy Collector got the jurisdiction to deal with the applications under Section 16 (1) of the Act and the Sub-divisional Officer ceased to have jurisdiction to deal with such applications. There is absolutely no merit in this contention. The copy of the notification does not show that the power of a Collector under the Act which was Riven to the Sub-divisional Officer was withdrawn or cancelled. As a result of the notification, therefore, the Land Reforms Deputy Collector acquired a concurrent jurisdiction with the Sub-divisional Officer to deal with applications under Section 16 (3) of the Act. Section 31 (2) of the Act reads as follows :--
"The Collector of the district may. at any time.-
(a) transfer any application or proceeding pending before him to any officer exercising the powers of Collector under this Act. or withdraw any such application or proceeding pending before any such officer and either dispose it of himself or transfer it to any other such officer for disposal; and
(b) withdraw any appeal pending before any authority, below his rank, prescribed under Sub-section (1) of Section 30 and either dispose it of himself or transfer it for disposal to any other authority."
It is clear from the provisions contained in Section 31 (2) (a) that it is only the Collector of the district who can transfer any application or proceeding before an officer exercising the powers of Collector under the Act to any other such officer for disposal. In terms of Section 31 of the Act, the Sub-divisional Officer has absolutely no jurisdiction to transfer a case from his own file to the file of any officer having the concurrent jurisdiction. Learned counsel in course of his argument referred to a Bench decision of this Court in the case of Babui Dineshwari Kuer v. Rani Narain Singh reported in ILR 15 Pat 704 = (AIR 1936 Pat 546). In that case it was held once a new Court is established and the territorial limit of an existing Court is curtailed by a notification of Government, and placed under the jurisdiction of the newly established Court, the existing Court ceases to have jurisdiction over such area; and all pending cases relating to that area are automatically placed under the jurisdiction of the new Court. That case is not of any assistance to respondent No. 1 because the territorial limit of the jurisdiction of the Sub-divisional Officer, who had been appointed as the Collector under the Act. was not curtailed in any way by the notification in question. A reference was also made to a Full Bench decision of this Court in the case of Jhakar Abir v. Province of Bihar, (AIR 1945 Pat 98 (FB) ). In that case it has been held that where a Court has jurisdiction to try an offence it is immaterial whether it has taken cognizance of the offence without being empowered to do so or whether the case has been transferred to it by another Court which was not empowered to make the order of transfer. This case is also of no assistance to respondent No. 1. The above view has been taken because of the provisions in Clauses (e) and (f) of Section 529 of the Code of Criminal Procedure.
5. Learned Counsel next contended that there was a waiver since this point was not taken by the petitioner at any early stage. In my opinion, simply because this point was not taken by the petitioner at the early stage, he cannot be shut out from raising the point which goes to the root of the jurisdiction. Since the application under Section 16 (3) of the Act had been filed before the Sub-divisional Officer, who had the territorial jurisdiction to decide the case, he should have decided the case. The Land Reforms Deputy Collector no doubt had the concurrent territorial jurisdiction to decide the case. But in the absence of an order from the Collector of the district transferring the case to his file from the file of the Sub-divisional Officer, he had no jurisdiction to deal with this case. The order (Annexure 3) which was passed by him. therefore, must be held to be bad in law. As the original order is held to be bad in law, the appellate Order (Annexure 4) and the order passed by the Board of Revenue (Annexure 5) under Section 32 of the Act cannot be sustained.
6. In the result. Annexures 3, 4, & 5 are quashed by a writ of certiorari and the case is sent back to the Collector of the district for passing the appropriate order under Section 31 of the Act. On the facts and in the circumstances of the case, the parties are directed to bear their own costs, S.P. Sinha, J.
7. I agree.