Patna High Court
Sachhidanand Singh & Ors vs Addl.Member,Board Of Revenue & on 27 July, 2009
Author: S K Katriar
Bench: Sudhir Kumar Katriar, Jyoti Saran
Letters Patent Appeal No.927 of 1998
With
Letters Patent Appeal No.936 of 1998
*****
Against the common judgment dated 8.7.1998,
passed by a learned Single Judge of this Court,
in C.W.J.C. No.8069 of 1996 and C.W.J.C. No.617
of 1997.
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1. Sachhidanand Singh
2. Ram Suresh Singh
Both sons of Raj Bahadur Singh.
3. Bijay Bahadur Singh.
4. Bashishtha Singh.
Both sons of Late Ram Pravesh Singh.
5. Ram Bachan Singh.
6. Sri Ram Singh.
Both sons of late Ghuran Singh.
All residents of Village- Araila, Police
Station-Tiyar, District-Bhojpur.
..... Appellants.
(In both cases)
Versus
1. Additional Member, Board of Revenue, Bihar.
2. Additional Collector, Bhojpur at Arrah,
District Bhojpur.
3. Sub Divisional Officer, Arrah, District-
Bhojpur.
4. Kapildeo Singh (deceased), son of late Sahtu
Singh.
4(i). Darpalo Devi, w/o Kapildeo Singh.
4(ii). Mukti Singh
4(iii). Gupteshwar Singh
Both sons of Kapildeo Singh, R/V. Araila,
P.S. Tiyar, District- Bhojpur.
4(iv). Lalita Devi
4(v). Sumitra Devi,
Both daughters of Kapildeo Singh at and
P.O.- Dharauli, P.S. Raghunathpur, District
Buxar.
5. Ram Chandra Singh, son of late Baldeo Singh,
resident of Village- Araila, Police Station-
Tiyar, District- Bhojpur.
6. The State of Bihar.
...... Respondents.
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For the appellants: Mr. Shashi Shekhar Dwivedi,
(in both cases) Senior Advocate with
Mr. Ravi Shankar Dwivedi,
Advocate.
2
For the State : Mr. Shashi Bhushan Kumar,
(in both cases) Standing Counsel No.16.
For the Respondents: M/s. Ganpati Trivedi &
(in both cases) Sanjay Kumar Mishra,
Advocates.
*****
P R E S E N T
THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE JYOTI SARAN ***** S K Katriar & J.Saran, JJ. The two appeals under Clause 10 of the Letters Patent of the High Court of Judicature at Patna have been preferred by the pre-emptors in terms of 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‟), and raise a grievance with respect to the common judgment dated 8.7.1998, passed by a learned Single Judge of this Court, whereby the two writ petitions preferred by the different pre- emptors have been rejected. We therefore, proceed to dispose of both the appeals by a common judgment, as all the earlier orders have been passed disposing of the two proceedings at different stages by common order.
2. Learned counsel for the appellants (the heirs and the legal representatives of the pre- emptors) presses I.A. No.4374 of 2007, which is in the nature of substitution application, wherein it 3 is stated that respondent no.4 (Kapildeo Singh), the purchaser, died on 3.9.2005, leaving behind his heirs mentioned in paragraph no.1 of this application. Learned counsel for the respondents has no objection to the same. In that view of the matter, let the name of respondent no.4 be expunged and be substituted by his heirs and legal representative mentioned in paragraph no.1 of I.A.No.4374 of 2007, who have entered appearance through counsel and filed duly executed Vakalatnama. I.A. No.4374 of 2007 is accordingly disposed of.
3. We shall first of all deal with L.P.A. No.927 of 1997. By a registered deed of absolute sale Ramayan Singh had alienated the land in question in favour of the aforesaid Kapildeo Singh. The predecessors of the petitioners, namely, Raj Roshan Singh and Ghuran Singh who were co-sharers of the adjoining land had preferred pre-emption application under section 16(3) of the Act. The same was on contest allowed by the learned Sub Divisional Officer, Ara, by order dated 28.8.1969, passed in Case No.15/65-66 (Annexure-4 to the writ petition), whereby he allowed the pre-emption application. The pre-emptor did not take any step for execution of the sale-deed, as a result of which the said Case No. 15/65-66 stood rejected by order dated 16.8.1974. There is no material on record to suggest that the 4 said order dated 16.8.1974 was recalled, instead the materials on record suggest that the order dated 16.8.1974 had attained finality. The pre-emptors thereafter filed application on 11.3.1993 informing the learned first authority that Raj Roshan Singh had died shortly prior thereto. The purchasers contested the date of death of the pre-emptors and instead took the stand that Raj Roshan Singh had died 12 years ago way back in the year 1981. By order dated 12.5.1993 (Annexure-1 to the writ petition) the learned Sub Divisional Officer, Sadar, Ara held that the application under Section 16(3) of the Act had abated in the absence of the heirs and legal representatives of the pre-emptors. Aggrieved by this order the heirs and the legal representatives of the pre-emptors preferred appeal which was dismissed by order dated 30.8.1995 (Annexure-2 to the writ petition), passed in Ceiling Appeal Case No.6 of 1993-94/5 of 1995-96 (Sachida Nand Singh Vs. Kapildeo Singh) and the order of abatement was upheld. Aggrieved by the order the heirs of the pre-emptors, preferred Revision Case No.215 of 1995 (Sachidanand Singh Vs. Kapildeo Singh) which was rejected by the Additional Member, Board of Revenue by order dated 9.3.1996 (Annexure-3 to the writ petition). Aggrieved by the order the heirs and the legal representatives of the pre-emptors 5 preferred C.W.J.C. No.8069 of 1996 which has also been dismissed by the impugned judgment.
4. While assailing the validity of the orders in question, learned counsel for the appellants (the heirs of the pre-emptors) submits that in the scheme of the Act, there is no separate provision for substitution of the pre-emptor. Section-45C of the Act read with rule 55 applied to land-holders and obviously, therefore, these provisions could not apply to pre-emptors. The proceeding under section 16(3) of the Act is not with respect to a land- holder, but is in fact, between the pre-emptors and the purchasers. In other words, in his submission, in the scheme of section 16(3) of the Act, a substitution application cannot be dismissed on the ground of limitation.
4.1) He next submits that the order dated 28.8.1969 allowing the pre-emption application had attained finality and, therefore, the pre-emptor cannot be deprived of the fruits of the order on grounds akin to hyper technicality.
4.2) He lastly submitted that the learned Single Judge has committed the error of record by stating in paragraphs 8 of the impugned judgment that 16(3) proceedings stood closed on 16.8.1974 which has led to the erroneous decision, whereby he has refused to discuss the matters on record. 6
5. Mr. Ganpati Trivedi, learned counsel for the purchasers has submitted that, in the scheme of Section 16(3) of the Act, no separate execution proceeding is required to be filed for implementation of an order of pre-emption. In his submission, the duties enjoined are on the Collector under the Act to carry the order of pre-emption to its logical conclusion. He also submitted that law is well settled that in the absence of any specific provision of limitation under the Ceiling Act, the residuary clause of the schedule to the Limitation Act shall apply. He relies on a Division Bench judgment of this Court in Harakh Nath Singh and another Vs. Lodha Sinh and others, reported in 1978 P.L.J.R. 659.
6. We have perused the materials on record and considered the submissions of learned counsel for the parties. Raj Roshan Singh filed the application under Section 16(3) of the Act claiming pre-emption with respect to the vended plot. The same was allowed by common order dated 28.8.1969 (Annexure-4 to the writ petition), and the claim for pre-emption was upheld. The same was not challenged by any party. However, the pre-emptors did not take any step for execution of the registered document, although the deposit in terms of Section 16(3) (i) of the Act remained in deposit. In view of the said 7 inaction entirely attributable to the pre-emptors, the application under section 16(3) of the Act was dismissed for non-prosecution. On 11.3.1993 an application was filed by the heirs of Raj Roshan Singh (the pre-emptor) that he had recently died. This position was contested by the purchaser who took the stand that Raj Roshan Singh had really died 12 years ago way back in the year 1981. On contest, the substitution application was rejected by the learned Sub Divisional Officer, Ara, by order dated 12.5.1993 which has been upheld by the learned appellate authority, the learned revisional authority and a learned Single Judge of this court.
7. It appears to us on a perusal of Section 16(3) of the Act that, in the event the pre-emption application is allowed, the pre-emptor is not required to start a separate execution proceeding. The same shall take place in the same proceeding under section 16(3) of the Act itself, and the learned Collector shall take it to its logical conclusion. In the event the purchaser refuses to execute the registered document, the pre-emptor shall move the learned Collector under the Act in the same proceeding in terms of section 16(3) (iii) of the Act for a direction to the purchaser to execute the document. This has to be read with rule 19(5) of the Bihar Land Ceiling Rules, 1963 8 (hereinafter referred to as the „Rules‟). The procedure prescribed is that, in the event of recalcitrant approach of the purchaser, the pre- emptor shall submit a draft copy of the registered document before the learned Collector under the Act followed by the details of procedure, the learned Collector under the Act shall execute the registered deed in favour of the purchaser. We are, therefore, of the view that a separate proceeding is not required to be initiated by the pre-emptor for execution of the registered document. It is a continuation of the proceeding under section 16(3) of the Act before the learned Collector of the district. In fact, we read into the provisions the duty cast upon the learned Collector under the Act to take the order of pre-emption to its logical conclusion. This being a land reforms measure, the purchaser should not be deprived of the deposits. The purchaser is entitled to withdraw the deposits in terms of rule 19 (6) of the Rules only after the registered document is executed by the learned Collector under the Act.
8. We must next deal with the contention advanced on behalf of the appellants that no formal period of limitation is prescribed under the Act for substitution of the heirs of the pre-emptor. The position may be correct but this is to completely 9 overlook the general law of the land prescribing the law of limitation. We are of the view that Article 137 to the schedule to the Limitation Act is applicable in such a situation. The entry reads as follows:
137. Any other Three years When the right to application for apply accrues.
which no period of limitation is provided elsewhere in this division.
9. We are thus of the view that in the absence of specific period of limitation, or in the absence of specific bar in the specialized enactment Article 137 of the Limitation Act shall be applicable. In order to apply this principle of law, we may profitably reproduce the relevant finding recorded by the learned first authority and upheld by all up to the learned Single Judge.
e`r O;fDr;ksa ds LFkku ij muds mRrjkf/kdkjh dks izfrLFkkfir djus ds lEcu/k esa fn~orh; i{k n~okjk tks rdZ ,oa dkuwuh izko/kku izLrqr fd;k x;k gS og loZFkk fo'okl ds ;ksX; gS@ Lo0 ?kqju flsag ,oa jkejks'ku flag dh e`R;q vkt ls dze'k% 20 o"kZ ,oa 12 o"kZ gksus dh ckr tks fn`forh; i{k n`okjk dgh x;h gS mldk fojks/k izFke i{k us ugha fd;k gS@ vuqe.My inkf/kdkjh ds fnukad 23&01&70 ds vkns'k esa Hkh ;g dgk x;k gS fd ?kqju flag dh e`R;q gks pqdh gS@ blls ;g Li"V gS fd ?kqju flag ,oa jktjks'ku flag dh e`R;q ds laca/k esa fn`orh; i{k n`okjk crk;h x;h vof/k e`R;q(sic) gS@ In other words, Raj Roshan Singh died way back in 1981, and the substitution application was filed on 11.3.1993. We also see no material on 10 record to show that the heirs of the deceased pre- emptors had made any attempt for condonation of the delay. The substitution application was hopelessly barred by limitation. Indeed the issues are concluded by findings of fats of the three authorities under the Act and the learned Single Judge of this Court.
10. To conclude, the execution and registration of the document does not need commencement of a separate execution proceeding at the instance of the pre-emptors. The same has to be undertaken in the same proceeding under section 16(3) of the Act. In case, the purchasers execute the sale-deed voluntarily even then it becomes the duty of the learned Collector under the Act to ensure disbursement of the deposit under the provisions of rule 19(5) of the Rules on proof of the registration of the document. In case of recalcitrant approach by the purchaser, a duty is enjoined on the learned Collector under the Act to execute the document himself to ensure its registration in terms of section 16(3) (iii) of the Act read with the provisions of Order 21, rule 34 of the Code of Civil Procedure. In such an event, once again, the amount in deposit has to be disbursed in favour of the purchaser after the sale-deed has been registered by the learned Collector under the Act. We see no 11 formal period of limitation prescribed in the Act and the Rules thereunder to file a substitution application. Article 137 of the Schedule to the Limitation Act is, therefore, applicable to such a situation and the period of three years has been prescribed for the purpose.
11 We are supported by a judgment of the Supreme Court in Balram and others Vs. IIIrd Additional District Judge and another, reported in (1983) 2 S.C.C. 419= A.I.R.1983 S.C.1137. That was a case under the U.P. Imposition of Ceiling on Land Holdings Act, 1960, where the question arose about the procedure to set aside the abatement of appeal and condonation of delay. The Supreme Court held that the provisions of Order 22, C.P.C. and Limitation Act are applicable.
12. We feel tempted to reproduce the following portion of the book by Fali S. Nariman, entitled „India‟s legal system: Can it be saved":
"More than one hundred years ago, a law member in the Government of India (Hobhouse) recorded in a minute dated 5 September 1872 (on the Bill leading to the Privy Council Appeal Act, 1874) the following observation:
In considering what limit should be assigned to the power of appealing, our leading maxim is, that it is the interest of the commonwealth to have and end of law suits. No man has a right to unlimited draughts on the time and money of the public in order to get his private affairs settled as he wishes. The State‟s duty is discharged 12 when it has provided such a reasonable amount of attention and skill and honesty as will satisfy reasonable men that their causes have been decided, erroneously or otherwise, on the merits, and according to the best ability of the judge, and so will prevent them from feeling that resentment of sheer injustice which drives people to take the law into their hands and to wage private war. Upon this principle all laws place some limits to litigation and so have we placed limits to the power of appealing.
Pithily put, and elegantly phrased.
The portion about no man having a right to unlimited draughts on the time and money of the public in order to get his private affairs settled as he wished was quoted by Justice Gajendragadkar (who later became Chief Justice of India) in one of the early reports of the Law Commission of India, but despite what was so wisely said by Mr. Hobhouse and again by Chief Justice Gajendragadkar, our laws continue to provide (by way of appeals, reviews and revisions) unlimited draughts on the time and money of the public in order to get private affairs ultimately settled. For instance, we have now abolished second appeals, and yet lawyers go on arguing endlessly about the maintainability of intra-court appeals under special laws."
No man has a right to unlimited draughts on the time and money of the public in order to get the private affairs settled as he wishes in an interminable manner as has happened in the present case.
13. In the facts and circumstances of the present case we are of the view that the Pre-emptors and/or the heirs and legal representatives are 13 guilty of grossest abuse of the process of the Court. The order dated 28.8.1969 is now being disposed of by this Court. The order dated 28.8.1969 could have been concluded within a period of say, one year, has been, on account of the inaction of the respondents dragged on till date. The observations of Mr. Hobhouse cannot be more true than in the present case.
14. In the result, we dismiss L.P.A. No.927 of 1998 with costs quantified at Rs.10,000/- (Ten thousand) which shall be deposited with the High Court Legal Services Committee, Patna, within a period of four weeks from today.
15. We now turn to the analogous L.P.A. No.936 of 1998. Learned counsel for the appellants (the heirs and the legal representatives of the pre- emptor) presses I.A. No.4375 of 2007, which is in the nature of substitution application, wherein it is stated that respondent no.4 (Kapildeo Singh), the purchaser, died on 3.9.2005, leaving behind his heirs mentioned in paragraph no.1 of this application. Learned counsel for the respondents has no objection to the same. In that view of the matter, let the name of respondent no.4 be expunged and be substituted by his heirs and legal representatives mentioned in paragraph no.1 of I.A. No.4375 of 2007, who have entered appearance through counsel and 14 filed duly executed Vakalatnama. I.A. No.4375 of 2007 is accordingly disposed of.
16. It appears to us that all the orders ever since 28.8.1969 have been common in the two proceedings. The minor difference between the two proceedings is that the pre-emptor in the present case was Ghuran Singh, who perhaps died in the year 1973. In view of the foregoing discussion, we dismiss L.P.A. No.936 of 1998 with costs quantified at Rs.10,000/- (Ten thousands) which shall similarly be deposited with the High Court Legal Services Committee, Patna, within a period of four weeks from today.
(S K Katriar, J.) (Jyoti Saran, J.) Patna High Court, Patna.
Dated the 27th day of July, 2009.
S.K.Pathak/(N.A.F.R.)