Patna High Court
Bibi Ambeya Khatoon vs State Of Bihar And Ors. on 12 March, 2007
Equivalent citations: 2007(2)BLJR1226
JUDGMENT J.N. Bhatt, C.J.
Page 1227
1. By this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 9.2.1987, recorded by the Additional Member, Board of Revenue, Bihar, Patna, (respondent No. 2) in Board Revision No. 321 of 1986, contained in Annexure 3 to the petition, as well as the order dated 26.2.1986, recorded by the Collector, West Champaran (respondent No. 3) in R.A. No. 64 of 1980-81, contained in Annexure 2, whereby respondent Nos. 2 and 3, both the revenue authorities, allowed the application of pre-emption filed on behalf of respondent No. 5 Sk. Basir Alam.
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2. This Court has been addressed at great length by the learned Counsels appearing for the parties. A plain conspectus of the facts relevant and material for the purpose is, dispassionately examined. The orders impugned are also considered and examined. The relevant proposition of law is, also, kept in mind while considering the merit of this writ petition.
3. A skeleton projection of facts at this juncture is expedient for appreciating the merits of rival versions.
(i) The petitioner is the purchaser of a part of the agricultural property measuring 6 kathas of land in plot No. 1320, khata No. 3 of Mauja Surujpur in the district of West Champaran in the State of Bihar from one Sk. Amjad Ali, vendor of the disputed property, respondent No. 6 by registered sale deed executed on 20.3.1979 for Rs. 1500/- which came to be registered, on 22.11.1979.
(ii) Respondent No. 5 Sk. Basir Alam, preferred an application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (In short "Act of 1961") claiming himself to be adjoining raiyat of land measuring 6 kathas of land comprising of plot No. 1320, khata No. 3 of village Surujpur.
4. The Land Reforms Deputy Collector, Bettiah, in Case No. 25 of 1979-80, decided the aforesaid claim for pre-emption under Section 16(3) of the Act of 1961 against the applicant holding that pre-emptor could not be said to be an adjacent owner or raiyat in terms of the provisions of Section 16(3) of the Act of 1961. This pre-emption application, in that case, came to be decided on 24.10.1980.
5. Being aggrieved by the order of respondent No. 4 Land Reforms Deputy Collector, Bettiah, West Champaran, the pre-emptor, respondent No. 5, Basir Alam preferred an appeal under Section 30 of the Act of 1961 before respondent No. 3, the Collector, West Champaran, successfully. The appeal was allowed and the right of pre-emption claimed by respondent No. 5 came to be granted with necessary direction to the opposite party by a decision in R.A. No. 64 of 1980-81 dated 26.2.1986.
6. Against the order of the appellate authority, a revision came to be filed under Section 32 of the Act of 1961 by the petitioner before the Member, Board of Revenue, unsuccessfully, which came to be decided, on 9.2.1987, holding that no valid excuse has been given for undue delay in filing the revision petition, as well as, on merit part, holding that it does not convince the revisional authority. Hence, this writ petition under Articles 226 and 227 of the Constitution of India.
7. It will also be interesting to mention that against the last order of the revisional authority passed by respondent No. 2 Additional Member. Board of Revenue, Bihar, Patna, on 9.2.1987, earlier, a writ petition under Articles 226 and 227 of the Constitution of India had been filed, about which there is no dispute which was decided against the present petitioner.
8. Learned Counsel for the petitioner states that the writ petition came to be decided without going into the merit as it came to be dismissed for default. On being, pointedly, asked as to where is the copy of such petition and copy of the order passed on this writ petition, as they are not placed on record, the petitioner's counsel referred to the statements made in paragraphs 14 to 16 of the writ petition. It would be, at this juncture, apt to refer to paragraphs 14 to 16 of the writ petition as hereinbelow:
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14. That being aggrieved by the order of the learned Additional Member, Board of Revenue (Respondent No. 2) the petitioner moved this Hon'ble Court in C.W.J.C. No. 364 of 1987 on 13.8.87 and the same was heard for admission on 15.9.87 and after hearing, notices were directed to be issued to Respondents in the admission matter.
15. That in fact the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act 1987 hereinafter referred to as the "Amended Act" 1987 came in force on 20.4.87 and in view of the amended provisions, as it then was the said writ application should have been filed before the Tribunal but the same was wrongly filed before the Hon'ble High Court.
16. That it appears that due to non-compliance of the order dated 15.9.87 passed in the said writ application, the same stood dismissed.
9. It appears from the above, that the order of the additional Member, Board of Revenue respondent No. 2 in this petition, was questioned in the writ petition in CWJC No. 364 1987, on 13.8.1987 and the same was heard for admission on 15.9.1987 and after hearing the parties, notices were directed to be issued to the respondents in the admissions matter.
10. However, it is stated in paragraph 15 of the writ petition, that in fact the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land Amendment) Act, 1987 came in force on 20.4.1987 and in view of the amended provision, as it was then, the application should have been filed before the Bihar Land Reforms Tribunal (In short "the Tribunal") but wrongly an application under Articles 226 and 227 of the Constitution of India was filed in this Court against the impugned order. It is further stated in paragraph 16 of the writ petition that due to non-compliance of the order dated 15.9.1987 passed in the said writ petition, the writ petition came to be dismissed.
11. Learned Counsel for the petitioner has submitted that order of dismissal of the petition is non est in the eye of law in view of bar of jurisdiction of writ by virtue of amended provision as the matter was not sent to the Tribunal concerned for decision. Thereafter, an order came to be passed by this Court by which the Amendment Act making the amendment in 1987 in the Act of 1961 came to be declared ultra vires by a decision of the Division Bench of this Court, on 17.2.1988. The said decision is reported in 1988 PLJR 269 ( Awadhesh Kumar Singh v. The State of Bihar and Ors.), whereby, Sections 53(3), 54, 55 and 59 of the Amended Act of 1987 came to be declared ultra vires.
12. It will be material to emphasise that the earlier writ petition being CWJC No. 364 of 1987 stood dismissed in the year 1987, as contended by the learned Counsel appearing for the petitioner. By that time, there was no decision by Division Bench of this Court declaring amended provisions of the Act of 1961 ultra vires, as it came to be decided on 17.2.1988.
13. It is in these context a submission has been advanced before this Court that the principles of res judicata, analogous to the provisions of Section 11 of the Code of Civil Procedure, 1908 (In short "CPC") would be attracted and second petition will be barred. As against that, learned Counsel appearing for the petitioner has submitted that the matter was not decided on merit. Copy of the judgment of the writ court is not produced. Apart from that, the records show that the writ petition Page 1230 came to be dismissed on 17.2.1988. A question, therefrom, would arise as to whether the submission that the second writ petition is barred by the principles of res judicata is acceptable or not ?
14. In this connection, it is to be noticed that Section 11 of the CPC makes a wholesome and healthy provision with regard to the principles of 'res judicata'. As such, the principle and the expounded philosophy is that when a decision is rendered in a matter and it becomes final and attained finality, it cannot be reagitated on the doctrine of res (dispute) having been adjudicated. Section 11 of the CPC will be very important and material at this juncture. It reads hereunder:
Section 11. Res Judicata. - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
15. The provisions of Section 11 of the CPC has to be read along with Section 9 of the CPC. Section 11 of the CPC, as such, is not exhaustive. It is enumerating. One thing is very certain from the doctrine of res judicata that once a dispute has been decided between the parties and finality has been achieved, the same and similar issue could not be allowed to be entertained or agitated in accordance with law in view of the provisions of Section 11 read with Section 9 of the C.P.C. Even if the provisions of Section 11 of the CPC is not directly attracted, the Court can apply the provisions of res judicata analogous to the provisions of Section 11 read with Section 9 of the CPC. No body can be vexed twice. This doctrine of res judicata is aged old and has deep roots in the ancient history of law and justice.
16. There cannot be any dispute about two aspects that doctrine of res judicata is applicable to the quasi judicial body like the Tribunal, as well as to writ proceeding under Articles 226 and 227 of the Constitution of India.
17. It is in these context, the plea raised on behalf of respondent No. 5 that the doctrine of res judicata will apply, has to be examined since other side has, strongly, countered this submission and has submitted that doctrine of res judicata has no role and place in the present case, as the matter was never decided, for earlier writ application was not decided on merit, but it was dismissed for default and party remained, unsuccessful, in getting it restored.
18. Be that as it may, one thing is crystal clear that no dispute or res raised in this petition has been earlier decided in the previous writ petition since the earlier writ petition came to be dismissed for default.
19. This principal of doctrine of res judicata is very well expounded and settled by a catena of judicial pronouncements. Two decisions are cited. One decision is rendered by the Apex Court in the case of Smt. Pujari Bai etc. v. Madan Gopal (dead) L.R.s viz. Smt. Jaiwanti and Ors. . In paragraph 24, this proposition is highlighted. It is, clearly, expounded that when a writ petition after contest is disposed of on merits by a speaking order, the question decided in that petition would operate as res judicata, but not dismissal in limine or dismissal on the ground of laches or availability of alternative remedy. Second decision, relied on, is also of the Hon'ble Apex Court rendered in the case of Union of India v. Pramod Page 1231 Gupta (Dead) by LRs and Ors. . This decision, also, supports the submission of the learned Counsel for the petitioner. The principle enunciated in the first decision is reiterated in the second decision, relied on.
20. The principle of res judicata would not have application, inter alia, in a case where the judgment and/or order has been passed by Court without entering into the merits on contest by a speaking order. It is, therefore, the contention raised on behalf of the respondent No. 5 is required to be rejected.
21. Next, it will lead to the consideration as to whether the principles of pre-emption as incorporated in Sub-section (3) of Section 16 of the Act of 1961 would be attracted in the present case or not? The provisions of Section 16(3) of the Act of 1961 is quoted hereinbelow for profit:
16. Restriction on future acquisition by transfer etc. - (1) No person shall, after the commencement of this Act, either by himself or through any other person, acquire or possess by transfer, exchange, lease, mortgage, agreement or settlement any land which together with the land, if any, altered held by him exceeds in the aggregate of the ceiling area.
X X X X X X X (3)(i) When any transfer of land is made after the commencement of the Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document, of the transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed:
Provided that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten percent thereof is deposited in the prescribed manner within the said period.
(iii) On such deposit being made the co-sharer or the raiyat shall be entitled to be put in possession of the land irrespective of the fact that the application under Clause (i) is pending for decision:
Provided that where the application is rejected, the co-sharer or the raiyat as the case may be, shall be evicted from the land and possession thereof shall be restored to the transferee and the transferee shall be entitled to be paid a sum equal to ten percent of the purchase money out of the deposit made under Clause (i).
(iii) If the application is allowed, the Collector shall by an order direct the transferee to convey the land in favour of the applicant by executing and registering a document of transfer within a period to be specified in the order and, if he neglects or refuses to comply with the direction, the procedure prescribed in Order 21, Rule 34 of the Code of Civil Procedure, 1908 (V of 1908), shall be, so far as may be followed.
22. Let it be hilighted that the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act 12 of 1962), which was assented to by the President on the 8th March, 1962, is an Act to provide for fixation of ceiling, restriction on sub-letting and resumption by certain raiyats, for personal cultivation of land, acquisition of status of raiyat by certain under-raiyats and acquisition of Page 1232 surplus land by the State in the State of Bihar and matters connected therewith. This Act came to be extended to the whole of the State of Bihar and it was brought into force at once.
23. This is one of the Acts which have been placed in the 9th Schedule under Article 31B of the Constitution of India.
24. Let it be highlighted that the object of enacting this Act in the State of Bihar is evident and unambiguous. The object is clear. Under it any land in excess of the ceiling area ceases to belong to the owner with effect from the appointed day. Ordinarily, the word 'disposition', in relation to property would mean disposition made by a deed or will. Even if possession of surplus land is given in execution of partition decree, the "disposition" will be invalid under Ceiling laws and will be of no effect. The administrative mechanism has already prescribed, under the Act, legal redressal for the aggrieved persons.
25. In Chapter V of the Act, there is restriction on future acquisition. Section 16 of the Act, as quoted above, undoubtedly, prescribes restriction on future acquisition by transfer etc. Clause (i) of Sub-section (3) of Section 16 of the Act provides clear statutory restriction that when any transfer of land is made after the commencement of the Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document, of the transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the conveyance or deed.
26. There is no dispute about the fact that in any legislation raising issue of pre-emption, there would be three parties - first, "transferor of the land", after commencement of the Act of 1961. The transferor in the present case is respondent No. 6 Sk. Amjad Ali. The second party is "transferee", who is the petitioner here, namely, Bibi Ambeya Khatoon, whereas, the third is "pre-emptor" who is respondent No. 5 Sk. Bashir Alam. The petitioner and respondent No. 5, pre-emptor, were parties enjoying the position and status of adjoining owners. Since the petitioner became transferee of a part of the land in question, a pre-emption application came to be filed under Section 16(3)(i) of the Act of 1961 by respondent No. 5. It is in these context, the second contention advanced on behalf of respondent No. 5 would be very material.
27. The second contention has been raised that applying the yardstic of degree and extent of adjacency, the respondent No. 5 is closer and adjoining owner of the land, whereas, the petitioner is farther holding the land. It is, therefore, on the doctrine of existence or degree of adjacency, the right of pre-emption is claimed by respondent No. 5.
28. It is in this respect on a pointed question asked to the learned Counsel for respondent No. 5 as to what provision of law supports his contention, he, fairly, admitted that there is no such provision, but, a person, whose land is closer to the transferred land than other adjacent owner, should be given priority and preference. This submission, of course, is alluring and attractive and appealing to the heart but not acceptable, recognising and appealing to the head. Admittedly, there is no provision in support of this contention. The degree of adjacency of the adjoining ownership of the land, otherwise, also, could not be gone into by the authority under the Act of 1961 or any other provision, as there is no sanction of law.
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29. Let it be recalled that a Division Bench of this Court in the case of Mussamat Dukho Devi and Ors. v. Uchit Lal Mandal and Ors. reported in 1968 P.L.J.R. 1, had occasion to decide a similar issue and the view which this Court is going to take, is reinforced by it. In the said Division Bench decision of this Court, it has been held that the Act of 1961 does not contain any provision authorizing the revenue authority to determine the degree of adjacency for the purpose of recognizing the right of pre-emption. It is further held that once it is found that a portion of the transferee - raiyati's land touches a corner of the purchased land, no right of pre-emption can be claimed against him because he becomes a raiyat of the adjoining "land" for the purpose of Clause (i) of Sub-section (3) of Section 16 of the Act of 1961. Otherwise also, in absence of any prevision, this Court cannot decide such an issue in favour of the propounder of it. The purchased land or the transferred land admittedly, has been a part and parcel of the original plot bearing No. 1320. Thereafter that plot was bifurcated or split into several sub plots. Survey has been made and survey has to be made periodically under the law. For the purpose of applicability and interpretation of the doctrine of "pre-emption" it is not the survey plot that matters but the piece of "land" as defined in Clause (f) of Section 2 of the Act of 1961 which does not refer to any such survey plot number at all.
30. This Court has also dispassionately examined the impugned decision of the revenue authority. Three authorities dealt with this matter. The first authority under the Act of 1961 dismissed the application for pre-emption filed by respondent No. 5 which came to be reversed by the appellate authority and, further, it was confirmed in the revision by the third authority.
31. The appellate authority, i.e. the District Magistrate-cum-Collector, while reversing the order of the first revenue authority i.e. Land Reforms Deputy Collector, has, in the penultimate paragraph of his order, held as follows:
In case of the above narrations, I find that the pre-occupied holding No. 9 situated after a gap of other holdings and the portion of 2 of the appellant's sons is more adjacent then that of the portion 9. In such way the pre-emption accrues in favour of the appellant who being the natural guardian purchased the lands in the name of the minors.
32. In the opinion of this Court the appellate authority has decided this issue without sanction of law and had reached to a finding unsupported by any provision of law. Though the appellate authority is expected to go into the factual aspect and disputed points and come to a finding based on law, but, in the instant case, the finding arrived at by the appellate court is patently erroneous and not supported by law. This aspect is not gone into by the revisional authority as it did not condone the delay in filing the revision and therefore, this application under Article 226 of the Constitution of India.
33. After having taken into consideration the profile of facts, the chronology of events and holding of lands by the parties, as well as, the impugned order of the revenue authorities and aforesaid case laws, this Court has no hesitation in finding that the order of the appellate authority, carried in revision unsuccessfully is not legal, valid and enforceable.
34. Accordingly, the impugned order of the first appellate Court dated 26.2.1986 passed by the Collector, West Champaran, in R.A. No. 64 of 1980-81, confirmed by Page 1234 the Additional Member, Board of Revenue, Bihar, dated 9.2.1987 in Board Revision No. 321 of 1986 is quashed and set aside the order of the first revenue authority i.e. Land Reforms Deputy Collector, Bettiah, in Case No. 25 of 1979-80 dated 24.10.1980 is restored as there is no fulfilment of requisite preconditions, and attractive rigours of the provisions of Sub-clause (i) of Sub-section (3) of Section 16 of the Act of 1961.
35. In the result, this petition shall, accordingly stand allowed. No costs. Rule is made absolute.