Patna High Court - Orders
Smt.Sarda Devi vs The State Of Bihar & Ors on 13 September, 2013
Author: Vikash Jain
Bench: Navin Sinha, Vikash Jain
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No. 808 of 2007
In
Civil Writ Jurisdiction Case No. 6973 of 1988
Smt. Sarda Devi, wife of Shri Ramphal Sah, resident of Village:
Mohanpur, P.S.Kurhani, District Muzaffarpur.
.... .... Petitioner-Appellant
Versus
1. The State Of Bihar
2. Additional Member, Board of Revenue, Bihar, Patna
3. Additional Collector, Land Ceiling, Muzaffarpur
4. Land Reforms Deputy Collector, West Muzaffarpur
5. Shambhu Prasad Sinha, S/o Late Kamaldeo Narayan, resident of
village- Mohanpur, P.S.-Kurhani, District-Muzaffarpur, at
present Samastipur College, Samastipur, P.O.- Jitwarpur, P.S.-
Samastipur, District- Samastipur
5(i) Umesh Prasad Sinha, S/o Late Kamal Deo Narayan, resident of
village- Mohanpur, P.S.- Kurhani, District- Muzaffarpur, at
present C/o R.P.C. Sinha, resident of Mohalla- Rajendra Nagar
Stadium, District and Town-Patna
5(ii) Binod Kumar Sinha, S/o Late Kamal Deo Narayan, resident of
village-Mohanpur, P.S.-Kurhani, District-Muzaffarpur, at present
Sr. T.W.A., G.M.T.D., Muzaffarpur
5(iii) Asha Devi, W/o Bhagwan Prasad, resident of Mohalla-Balua
Tola, Motihari, P.O.-Motihari, District- East Champaran, at
present Mohalla-Salempur, Chapra, P.O.- Sahebganj Chapra,
Police Station, Town, P.S.-Chapra, District-Chapra
5(iv) Usha Devi, W/o Ajay Kumar Sinha, resident of Mohalla-
Ringwan, Koriya, P.O.- Kiran Takikes Chowk, P.S.-Sitamarhi,
District-Sitamarhi
5(v) Mira Devi, W/o Manoj Prasad Sinha, resident of village-Laxmi
Sagar, Darbhanga, Road No.2, P.O.-Gunjan Tol, P.S.-Darbhanga,
District- Darbhanga, at present, C/o Jai Narayan Prasad
Srivastava, Mohalla-Kila, Ward No.2, P.S.-Bettiah, District-West
Champaran
5(vi) Nilu Devi, W/o Rajesh Sinha, resident of village-Ujantol, P.O.-
Ujantolla, P.S.-Bettiah, District-Bettiah, at present residing at
Belwanawa, Professor Colony, P.O.-Motihari, P.S.-Motihari,
District-Motihari (East Champaran)
5(vii) Manju Devi, W/o Abhinash Kumar Sinha, resident of village-
Chandi, P.O.- Harauli, P.O.-Hajipur, District-Vaishali, at present
C/o Abhay Shankar Bahadurpur, Road No. 24/B, P.O.-
Kadamkuan, District-Patna
6. Smt. Champa Devi, W/o Basudeo Narayan, resident of village-
Mohanpur, P.S.-Kurhani, District-Muzaffarpur
.... .... Respondent 2nd Party-Respondent 2nd Party
Patna High Court LPA No.808 of 2007 (24) dt.13-09-2013 2
7. Shri Jadu Sah, S/o Dahaur Sah
8. Shri Raj Ballav Sah, S/o Shri Jadu Sah, resident of village-Bibipur,
P.S.- Vaishali, District- Vaishali
... Respondent 3rd Party- Respondent 3rd Party
With
Letters Patent Appeal No. 813 of 2007
In
Civil Writ Jurisdiction Case No. 566 of 1989
Smt. Sarda Devi, wife of Shri Ramphal Sah, resident of Village:
Mohanpur, P.S.Kurhani, District Muzaffarpur.
.... .... Petitioner-Appellant
Versus
1. The State Of Bihar
2. Additional Member, Board of Revenue, Bihar, Patna
3. Additional Collector, Land Ceiling, Muzaffarpur
4. Land Reforms Deputy Collector, West Muzaffarpur
5. Shambhu Prasad Sinha, S/o Late Kamaldeo Narayan, resident of
village- Mohanpur, P.S.-Kurhani, District-Muzaffarpur, at present
Samastipur College, Samastipur, P.O.- Jitwarpur, P.S.-
Samastipur, District- Samastipur
5(i) Umesh Prasad Sinha, S/o Late Kamal Deo Narayan, resident of
village- Mohanpur, P.S.- Kurhani, District- Muzaffarpur, at
present C/o R.P.C. Sinha, resident of Mohalla- Rajendra Nagar
Stadium, District and Town-Patna
5(ii) Binod Kumar Sinha, S/o Late Kamal Deo Narayan, resident of
village-Mohanpur, P.S.-Kurhani, District-Muzaffarpur, at present
Sr. T.W.A., G.M.T.D., Muzaffarpur
5(iii) Asha Devi, W/o Bhagwan Prasad, resident of Mohalla-Balua
Tola, Motihari, P.O.-Motihari, District- East Champaran, at
present Mohalla-Salempur, Chapra, P.O.- Sahebganj Chapra,
Police Station, Town, P.S.-Chapra, District-Chapra
5(iv) Usha Devi, W/o Ajay Kumar Sinha, resident of Mohalla-
Ringwan, Koriya, P.O.- Kiran Takikes Chowk, P.S.-Sitamarhi,
District-Sitamarhi
5(v) Mira Devi, W/o Manoj Prasad Sinha, resident of village-Laxmi
Sagar, Darbhanga, Road No.2, P.O.-Gunjan Tol, P.S.-Darbhanga,
District- Darbhanga, at present, C/o Jai Narayan Prasad
Srivastava, Mohalla-Kila, Ward No.2, P.S.-Bettiah, District-West
Champaran
5(vi) Nilu Devi, W/o Rajesh Sinha, resident of village-Ujantol, P.O.-
Ujantolla, P.S.-Bettiah, District-Bettiah, at present residing at
Belwanawa, Professor Colony, P.O.-Motihari, P.S.-Motihari,
District-Motihari (East Champaran)
5(vii) Manju Devi, W/o Abhinash Kumar Sinha, resident of village-
Chandi, P.O.- Harauli, P.O.-Hajipur, District-Vaishali, at present
C/o Abhay Shankar Bahadurpur, Road No. 24/B, P.O.-
Patna High Court LPA No.808 of 2007 (24) dt.13-09-2013 3
Kadamkuan, District-Patna
6. Smt. Champa Devi, W/o Basudeo Narayan, resident of village-
Mohanpur, P.S.-Kurhani, District-Muzaffarpur
.... .... Respondent 2nd Party-Respondent 2nd Party
7. Shri Jadu Sah, S/o Dahaur Sah
8. Shri Raj Ballav Sah, S/o Shri Jadu Sah, resident of village-Bibipur,
P.S.- Vaishali, District- Vaishali
... Respondent 3rd Party- Respondent 3rd Party
======================================================
Appearance:
For the Appellant/s : Mr. Vindhya Kesri Kumar, Sr. Advocate
For the State : Mr. Kumari Amrita (GP 10)
For the Respondents : Mr. Bhubneshwar Prasad, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
and
HONOURABLE MR. JUSTICE VIKASH JAIN
C.A.V. ORDER
(Per: HONOURABLE MR. JUSTICE VIKASH JAIN)
24. 13.09.2013Heard the parties.
2. These LPA's involve almost identical facts and issues. They have therefore been heard together and are being disposed by a common order.
3. I.A. Nos. 5358 and 5836 of 2008 have been filed in LPA No. 808 of 2007 u/s 5 of Limitation Act and under Order 22 Rule 9(2) of the Civil Procedure Code respectively for condoning the delay of 8 months and 10 days in filing the substitution petition as well as for setting aside the abatement in view of respondent no. 6 having died on 10.10.2007 and the substitution petition by way of I.A. No. 4165 of 2008 having been filed on 17.07.2008 beyond the statutorily permissible time limit.
4. Similarly, I.A. Nos. 815 and 816 of 2009 have been filed in LPA No. 813 of 2007 u/s 5 of Limitation Act and under Order 22 Rule 9(2) of the Civil Procedure Patna High Court LPA No.808 of 2007 (24) dt.13-09-2013 4 Code respectively for condoning the delay in filing the substitution petition by way of I.A. No. 817 of 2009 as well as for setting aside the abatement as aforesaid.
5. Considering that the respondents have not raised serious objection in the matter of limitation or abatement, and for the reasons stated in the applications, the delay is condoned and abatement set aside. Accordingly the legal heirs of respondent no. 6 as enumerated in para 2 of I.A. No. 4165 of 2008 and I.A. No. 817 of 2009 are permitted to be substituted in place of the deceased respondent no. 6 in both the LPA's.
6. All the aforesaid interlocutory applications stand allowed.
7. It appears that one Champa Devi (Respondent No. 6) had transferred 11 decimals of land each from out of Survey Plot No. 918 on 08.11.1982 through separate registered sale deeds in the names of Jadu Sah (LPA No. 808/2007) and his son Raj Ballav Sah (LPA No. 808/2007). On 01.02.1983, the said Jadu Sah (Respondent No. 7) as well as Raj Ballav Sah (Respondent No. 8) executed separate deeds of gift of their respective lands in favour of the appellant Sarda Devi, being their daughter and sister respectively. Applications u/s 16(3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter 'the Act') for pre-emption in respect of the said lands came to be filed thereafter before the Deputy Collector Land Reforms, West, Muzaffarpur (the 'DCLR') on 28.02.1983 by Kamaldeo Narayan, since deceased and represented by respondent nos. 5 to 5 (vii), claiming as co-sharer of the disputed plot and adjoining raiyat of the disputed lands. Such pre-emption applications were allowed by a consolidated order dated 14.01.1983 in Land Ceiling Case Nos. 5, 6 and 7 of 1983 passed by the DCLR. The DCLR opined that the gift deed executed by Jadu Sah and Raj Ballav Sah in favour of the appellant were sham transactions done with the Patna High Court LPA No.808 of 2007 (24) dt.13-09-2013 5 intention to frustrate the pre-emption application. Land Ceiling Appeal Nos. 46, 48 and 49/1983-84 preferred by the Appellant against the same were dismissed by order dated 29.08.1985 passed by the Additional Collector, Muzaffarpur, confirming the finding of the DCLR that the gift was sham with a view to defeat the right of pre-emption. The Additional Member, Board of Revenue, Bihar, dismissed Revision Case Nos. 334, 335 and 336 of 1985 confirming the findings of the two authorities of the gift deed being a sham document.
8. CWJC No. 6973 of 1988 and CWJC No. 566 of 1989 were preferred by the Appellant, taking a specific plea that neither any issue had been framed nor evidence led before the DCLR on the question of the gift deed in favour of the appellant being a sham and farzi transaction. Consequently, it was urged that the DCLR had not, nor indeed could he have, given any finding with regard to the gift being a sham and farzi transaction and as such the question of the Additional Collector, Muzaffarpur concurring with the finding of the DCLR on the said issue did not arise. So also the Revisional order of the Additional Member, Board of Revenue, Bihar, was therefore unjustified in agreeing with the alleged finding of the DCLR that the gift in question was a sham and farzi transaction.
9. Reliance was also placed by the appellant-petitioner before the Writ Court in support of the contentions raised, on the following two decisions --
(i) Smt. Priyambada Devi and Another Vrs. The Additional Member, Board of Revenue, Bihar, Patna and Others (1985 PLJR 662)
(ii) Dhanik Lal Mahto & Others Vrs. The Additional Member, Board of Revenue And Others (1985 BBCJ 597).
10. The Learned Single Judge, after hearing the parties, rejected the writ petitions in terms of consolidated order dated 17.08.2007, inter alia, holding that Patna High Court LPA No.808 of 2007 (24) dt.13-09-2013 6 the appellant-petitioner's contention that the finding of the D.C.L.R. that the gifts were sham and made with mala fide intention was not borne out as no evidence had been led in that regard, was against the record of the case, and further that the concurrent findings of fact of the three authorities did not warrant interference in the writ jurisdiction. Its jurisdictional scope for review being rather circumscribed, a Writ Court could not be converted into an appellate Forum. It was held that the findings of fact recorded by the three Courts had not been shown to be perverse or unreasonable. The learned Single Judge further opined that the two decisions relied upon by the appellant-petitioner were, after being examined, found to be not applicable to the facts of the case.
11. We have carefully gone through the materials on record and also heard the parties at length. The writ petitions clearly disclose that the petitioner had laid a specific challenge to the effect that issues had not been framed nor any evidence led before the first Revenue authority with regard to the gift being a sham and farzi transaction. Perusal of the order of the DCLR bears this out, wherein the only question formulated was whether or not the purchasers and Sarda Devi were adjoining raiyats. We do find that evidence had not been led before the DCLR at all to afford a valid basis for the finding that the gift had been made only to overcome the right of pre-emption. The Additional Collector, Muzaffarpur as well as the Additional Member, Board of Revenue, Bihar have also proceeded on mere surmise and conjecture rather than on any evidence on record in that regard.
12. It would be evident from the above that the controversy before the Learned Single Judge was thus clearly and undeniably with regard to the decision- making process itself rather than the quality of decision itself, which was well within the ambit of jurisdiction of the Writ Court to examine. The appellant had Patna High Court LPA No.808 of 2007 (24) dt.13-09-2013 7 sought to make out a case that the decision arrived at by the authorities was one based on no-evidence and stood vitiated. A perusal of the judgment under appeal however shows that the Learned Single Judge has not expressed any finding at all on that fundamental question, nor even a solitary reason why the two decisions relied upon by the appellant-petitioner were not applicable to the facts of the case.
13. It would also be relevant to notice at least some of several decisions of the Apex Court to the effect that concurrent findings of the authorities do not always constitute an absolute bar to entertaining a writ petition. As far back as in AIR 1951 (SC) 177 (Firm Sriniwas Ram Kumar vs Mahabir Prasad & Others), it was held that exceptional circumstances would justify departure from the normal practice of not interfering with concurrent findings on pure questions of fact. In AIR 1964 SC 136 (A. Raghavamma and Another vs Chenchamma & Another) it was explained that concurrent findings of fact could be interfered with in exceptional cases where the findings are such that it "shocks the conscience of the Court or by disregard to the forms of legal process or some violation of some principles of Natural Justice or otherwise substantial and grave injustice has been done." This consistent view has been reiterated through the years and again found expression in a more recent decision reported in (2003) 1 SCC 398 (Raghunath vs State of Haryana & Another).
14. In the result, we are of the view that the order of the Learned Single Judge holding that there could be no interference with the concurrent finding regarding the gift deed being a sham, transaction is unsustainable and not supported by the reasoning contained in the order of the three authorities. We therefore set aside the judgment under appeal, as also the orders of the DCLR, the appellate order of the Additional Collector as well as the revisional order passed by Patna High Court LPA No.808 of 2007 (24) dt.13-09-2013 8 the Additional Member, Board of Revenue.
15. The LPA's are allowed.
(Vikash Jain, J) (Navin Sinha, J) I agree (Navin Sinha, J) P.K./-