Patna High Court
Hari Narayan Pandey vs State Of Bihar And Ors. on 5 May, 1993
Equivalent citations: 1994(2)BLJR774
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. These writ applications are directed against an order dated 13-12-1983 passed by the Additional Member, Board of Revenue in Board Case No. 41 of 1983, as also the order dated 31-1-1983 passed by the Additional Collector, Gopalganj in Land Ceiling Appeal No. 4 of 19o2-83 and the order dated 31-3-1979 passed by the Deputy Collector, Land Reforms, in Land Ceiling Case Nos. 13 and 14 of 1978-79 whereby and whereunder all the courts have rejected the petitioner's application for pre-emption.
2. The fact of the matter lies in a very narrow compass.
3. Plot No. 693 appertaining to khata No. 2 measuring 15 Dhurs originally belonged to one Narsing Pandey who had two sons viz. Mahanth Pandey and Bhagwat Dayal Pandey. The petitioner and respondent No. 7 arc the sons of Bhagwat Dayal Pandey. Respondent No. 7 executed a deed of sale on 8-4-1978 in favour of the respondents 5 and 6, the said deed was registered on 29-7-1978. On the same day another portion of land measuring 3 kathas out of the same plot was sold by respondent No. 7 to respondent Nos. 5 and 6 for which another case being Land Ceiling Case No. 13 of 1978-79 was instituted. According to the petitioner both the sale deeds were executed as part of the same transaction,
4. The petitioner has contended that respondents 5 and 6 were neither co-sharers nor were they adjoining raiyats of the lands in question. The petitioner filed two Land Ceiling cases being Land Ceiling Case No. 14 of 1978-79 and 13 of 1978-79 purported to be in terms of Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter referred to as 'the said Act').
5. The courts below rejected the petitioners' application for pre-emption in view of the fact that purchasers have already constructed their house.
6. Mr. Tiwary, learned Counsel appearing on behalf of the petitioner has raised a short question in support of this application. Learned Counsel has submitted that from a perusal of the deed of sale as contained in Annexure-1 to the writ application, it would appear that the lands in question are agricultural in nature. Learned Counsel has further submitted that the courts below have committed an illegality in refusing to allow the application for preemption only on the ground that the lands are situate in Municipal area and the purchasers in order to defeat the claim of the petitioner have put on certain structures. Learned Counsel in support of his contention has relied upon a decision in Chandrika Sah v. Additional Member Board of Revenue, Bihar, Patna reported in 1981 PLJR 305 and in Govinda Pillai Ramadas v. Lakshmikutty Amma Ammukutty Amma and Ors. .
7. Mr. Y. V. Giri, learned Counsel appearing on behalf of respondents 5 and 6, on the other hand, submitted that from a perusal of the deed of sale as contained in Annexure-1 to the writ application itself, it would appear that the land was purchased for the purpose of construction of a house. Learned Counsel further submitted that the application for pre-emption was premature as the same was filed on 19-4-1978 although the deed was registered on 29-7-1978. Learned Counsel further submitted that a building has already been constructed and the respondents have been residing therein.
8. It is true that the provision of the said Act applies in relation to only land which comes within the purview of the definition of land as contained in Section 2(f) thereof.
9. The Act having application over the entire State of Bihar, any land falling within the purview of definition of land would attract the provisions of Sub-section (3) of Section 16 of the Act.
In Govinda Pillai Rumdas's case (supra) while considering the provisions of Kerala Land Reforms Act, the Supreme Court held as follows:
We cannot, therefore, agree with the learned Counsel for the appellant that the Full Bench decision in Barameshwaran Pillai, 1976 Ker LT 341, runs counter to the principle of the decision of this Court in Kunjukutty Saheb AIR 1972 SC 2097, and/or Malankara Rubber Producing Company AIR 1972 SC 2027. This Court did say either that the Act applies only to agricultural lands nor did it say that the Act must be read down as confined to only agricultural lands, with a view to save it from invalidity. This Court did not express any opinion on the validity of the Act in so far as it applied to non-agricultural lands. All that this Court said in Malankara Rubber Producing Company is that house sites in municipalities are not agricultural lands fit for acquisition under the Act. The said holding must be understood in the light of the Constitutional position as it obtained at that time i.e., before the Amendment Act 35/69 was placed in the Ninth Schedule. It is significant to notice that the Amendment Act 35/69 was placed in the Ninth Schedule by the Constitution 29th Amendment Act, with effect from June 9, 1992 whereas the decision in Kunjukutty Saheb and Malankara Rubber Producing Company were rendered on April 26/28, 1972 i.e. earlier to the said Constitution Amendment Act. We may also notice that the Full Bench decision in Parmeshwaran Pillai has remained unquestioned since 1976, i.e. for a period more than 16 years and has been applied and followed in Kerala in innumberable cases. We do not think there are adequate grounds for departing from the view taken therein.
In that case the Supreme Court found that the expression of "land" was not defined in Kerala Land Reforms Act, 1964 and upon consideration of the various decisions of the Kerala High Court and the Supreme Court it was held that the said Act applied both to Agricultural as well as Non-Agricultural lands.
10. The said Act, however, has been enacted for fixation of ceiling, restriction of sub-letting and resumption of certain raiyats for personal cultivation of land, acquisition of status of raiyat by certain under raiyat and acquisition of surplus land in the State of Bihar and the matter connected therewith.
The said Act has been enacted for the purpose of preventing fragmentation of agricultural lands. The purpose of pre-emption is evidently to prevent fragmentation. Only a co-sharer of raiyat or raiyat of adjoining land can exercise his right to pre-emption. Such right can be exercised only by a raiyat who in view of its definition, is primarily a person who has acquired right to hold and for the purpose of cultivation. A land which is not capable of cultivation and thus not a raiyati land, should not normally be the subject-matter of a proceeding under Section 16(3) of the Act.
11. In Chandrika Sah v. Additional Member, Board of Revenue reported in 1981 PLJR 305, it has been held by a learned Single Judge of this Court that the Act may also apply to a Bazar area but in that case neither the other decisions of this Court nor the purpose and object of the Act were taken into consideration. It has been repeatedly held by this Court that where the land is homestead and which is not capable for use of agricultural purposes, an application for pre-emption should be rejected on that ground. Reference in this connection may be made to Sita Ram Singh Gaur v. Additional Member, Board of Revenue and Ors. reported in 1988 BLJR (NOC) 15.
12. A right of pre-emption, as is well known, is a very weak right. A claim for pre-emption can legitimately be defeated and rendered unenforcible by a bona fide transaction. Reference in this connection may be made to Dhanik Lal Mahto and Ors. v. The Additional Member, Board of Revenue and Ors. reported in 1985 BBCJ 597.
13. It is true, as has been contended by Mr. Tiwary that the Courts below completely ignored the nature of the land and came to the conclusion that the application for pre-emption should be rejected only on the ground that from the date of purchase, the purchasers had started making construction. But in this case, it has been found as of fact that respondents 5 and 6 have already completed the construction of their residential house and are living therein. It is also an admitted fact that they had purchased the lands in question for the purpose of construction of house. It is also evident that the two deeds of sale had been executed on the same day.
14. In this situation, it is not a fit case in which this Court should exercise its discretionary jurisdiction in favour of the petitioner as in my opinion the equity is in favour of respondents 5 and 6.
15. Further, as noticed hereinbefore, the petitioner has filed an application for re-emption on 11-4-1978 although, admittedly, the deeds of sale were registered on 29-7-1978. There is nothing on the records to show as to when Land Reforms Deputy Collector, took cognizance of the applications for preemption filed by the petitioner. In Chandradip Singh and Anr. v. The Additional Member, Board of Revenue and Ors. reported in 1978 BBCJ 34, a Division Bench of this Court upon taking into consideration of the earlier decision of this Court in AIR 1973 Pat 199 wherein the decision of the Supreme Court in Hiralal Agrawal's case was considered, held as follows:
It was argued by Mr. Devendra Kumar Sinha, learned Counsel for respondent No. 4 that for purposes of Section 16(3) of the Act, the cause of action for pre-emption arose only after the completion of registration, therefore, as against the two petitioners no cause of action arose on the 21st July, 1970. It was further submitted that there could not be two dates of limitation for the purpose of Section 16 (3) of the Act. If an application for pre-emption could be filed only within three months of the dates of completion of registration then the title for the purposes of Section 16(3) can be said to have passed to the petitioners only on the 9th September, 1970 where the two sale-deeds were registered which was beyond the period of three months from the registration of the earlier document on the basis of which the pre-emption was prayed. We are afraid this submission cannot be accepted as valid in law. The point stands concluded by a Bench decision of this Court on a review of numberious earlier decisions, both of this Court and the Supreme Court. That decision is Smt. Sudama Devi and Ors. v. Rajendra Singh and Ors., Untawalia J. (as he was) speaking for the Bench observed at page 205 as follows:
The question before the Supreme Court was when was the pre-emptor to perform the caremonies under the Mohammedan Law ? The majority decision of the Court was that the sale was complete on completion of the registration under Section 61 of the Registration Act, and, therefore, the ceremonies had to be performed after completion of the registration. A similar view has been expressed in Hiralal Agrawal's case AIR 1969 SC 244. In the customary law the question assumes importance as to the point of time when, the ceremony is to be performed and under Section 16(3) of the Act, the question arose as to when the pre-emptor gets a right to file an application under Section 16(3). In Budhnandan Ram v State of Bihar, CWJC 133 of 1969, decided by a Bench of this Court, of which I was a member on 30th January, 1970 I had elaborately considered the point. I had pointed out that there could not be two starting points of limitation under Section 16(3) of the Act, starting points must be one-either the date of execution of the sale deeds or the date when its registration is complete.
I hold following Hiralal Agrawal's, case that the latter was the date which was the starting point of the period of three months for the filing of the application under Section 16(3). But to apply the doctrine of lispendence is different thing. Here, cases have consistently taken the view, to which reference has been made either by me, that if a sale-deed is executed before the filing of the suit but is registered later, then such a transfer is not pendente lite, the transferee became the owner of the property, in view of the provision of law contained in section of the Registration Act prior to the filing of the suit. No case taking contrary view for the application of the doctrine of lispendence was, brought to our notice of learned Counsel for the respondents 1 to 7.
That being so, there does not seem to be any merit in this point.
The applications for pre-emption filed by the petitioner were, therefore, premature.
16. For the reasons aforementioned, I find no merit in these applications. These applications are, therefore, dismissed, but without any orders as to costs.