Patna High Court
Smt. Dulhin Basmatia Alias Basamato ... vs State Of Bihar And Ors. on 17 January, 1995
Equivalent citations: 1995(2)BLJR813
Author: K. Venkataswami
Bench: K. Venkataswami
JUDGMENT K. Venkataswami, C.J. and S.N. Jha, J.
1. This is an appeal under Clause 10 of the Letters Patent. It arises out of an application under Articles 226 and 227 of the Constitution of India. The facts giving rise to the appeal, shortly stated, are there.
2. Respondent No. 3 Keshav Chandra Pratap Singh made a transfer by sale of 0.42 acre land of plot No. 1244 of village Ratangarh in the district of Bhojpur in favour of respondent No. 2, Raja Ram Singh, The appellant made an application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (in short 'the Ceiling Act') claiming right of pre-emption on the ground of adjacency to the vended plot. The claim was resisted by the purchaser on the ground that he was a Sikmidar i.e. an under-Raiyat not only of the vended plot but also the adjacent plot bearing plot No. 1243. According to him, as a Sikmidar, he has acquired certain rights and privilege in the land. The Deputy Collector Ineharge Land Reforms, exercising the powers of the Collector under the Act allowed the claim. The appeal and the revision preferred by the purchaser having gone in vain, he came to this Court in C.W.J.C. No. 2169 of 1979. The said writ petition has been allowed and the order of the authorities below set aside by the judgment and order under appeal (Judgment is reported in 1985 BBCJ 458). The learned Judge held that the rights conferred upon a Raiyat of the adjoining plot of land or co-sharer to resist the claim of pre-emption is also available to an under-Raiyat having right of occupancy.
3. Mr. Dinu Kumar, learned Counsel for the appellant, submitted that the learned Judge has erred in law in referring to the provisions of the Bihar Tenancy Act in coming to the conclusion that the statute of an under-Raiyat is the same as that of Raiyat when the two expressions have been separately defined in the Ceiling Act itself. Counsel submitted that the Ceiling Act makes clear distinction between Raiyat and an under Raiyat and, therefore, it cannot be said that an under-Raiyat stands on the same footing as a Raiyat. Reference was made to definition of the terms Raiyat and under-Raiyat occurring in Section 2 of the Act, and also to Section 21 of the Act
4. Sub-section (3) of Section 16 of the Act, so far as relevant provides:
When a transfer of land is made after the commencement of this Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferer 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.
A co-sharer of the transferor or a raiyat of the adjoining land is entitled to have the land re-conveyed to him on the same terms and conditions. This right, however, is not available to him if the transferee himself is a co-sharer or an adjoining raiyat. In order to succeed in his claim of pre-emption, thus, he has to prove both; that he is a co-sharer or adjoining raiyat, and the transferee is not.
5. The provision, it is true, does not refer to under-raiyat. It confers right upon a raiyat of the adjoining land or a person who is co-sharer of the transferor to resist the claim of pre-emption. In view of the provisions of Sections 2(k), 2(m) and 2(n) of the Ceiling Act read with the provisions of Sections 4 and 5 of the Bihar Tenancy Act, an under-raiyat in the strict sense of the term may not be a raiyat. Nevertheless, having regard to the provisions of Sections 12, 21 and 22 of the Ceiling Act it has to be held that under-raiyats too have certain pre-existing rights in the land.
6. It is well established that right of pre-emption is a weak right which is defeatable by all legitimate means particularly at the instance of those who themselves claim equal rights. In Smt. Sudama Devi and Ors. v. Rajendra Singh and Ors. , after referring to the judgment of the Supreme Court in Bishan Singh v. Khazan Singh dwelling upon the nature and scope of right of preemption, a Division Bench of this Court observed (at page 204):
But the law of pre-emption engrafted in Section 16(3) of the Act, to my mind, is of a weaker nature than the customary law of pre-emption. There, as pointed out by Mahmood, J., the pre-emptor, in effect, steps into the shoes of the vendee. And, yet Subba Rao, J., has said in Paragraph 11 that the vendee may defeat the right of selling the property to a rival pre-emptor with preferential or equal right. The scheme of the law engrafted in Section 16(3) of the Act is to permit the pre-emptor to have the property conveyed to him by the transferee. Until possession is delivered to the pre-emptor under Clause (ii), he does not get any right in the property until property is conveyed to him by a sale deed executed in pursuance of Clause (iii), he does not become the owner of the property.
In this backdrop of legal position we proceed to examine the nature of the rights of an under-raiyat under the Ceiling Act itself.
7. Section 12 of the Act entitles a raiyat to resume possession of the land within the ceiling area from under-raiyat in certain conditions in the prescribed manner. The manner has been prescribed in Section 13. Section 21 of the Act lays down that if no application for resumption is made within the period specified in Sub-section (2) of Section 13 or where the application has been rejected, the right, title and interest of the raiyat in such land shall be deemed to have been extinguished with effect from the date of such expiry or rejection, as the case may be, and subject to other provisions of the Act the under-raiyat of the land shall "be deemed to have acquired the status of an occupancy raiyat." Section 22 of the Act confers the status of occupancy raiyat upon an under-raiyat in.respect of surplus land subject to certain conditions as mentioned therein. A conjoint reading of Sections 21 and 22 makes it clear that whether the land is allowed to be retained by the raiyat within his ceiling area or is declared to be surplus, the under-raiyat has got certain pre-existing rights in them. In the former case, there is deemed acquisition of the status of occupancy right in certain situations. In the latter, the status of the occupancy raiyat is conferred upon him by the Act itself. It may be stated here the objects of the Ceiling Act, as would appear from the Preamble, are to determine the Ceiling area of the land-holder, acquire surplus land and also to confer the status of raiyat upon certain under-raiyats. In that view of the matter, an under-raiyat, even if held to be not raiyat in the strict sense of the term, by virtue of those pre-existing rights must be held entitled to resist the claim of pre-emption which, as noticed hereinabove, is a weak kind of right. In the above view of the matter, we do not find any error in the order under appeal dismissing, in effect, the application by the pre-emptor-appellant under Section 16(3), although for somewhat different reasons.
8. In the result, we do not find any merit in the appeal, which is, accordingly, dismissed. No order as to cost.