HIRALAL AGRAWAL v. RAMPADARATH SINGH — 1968 DIGILAW 53 (PAT)

JUDGMENT Narasimham, C.J. This is an application under Article 226 of the Constitution to quash the order of the Additional Member, Board of Revenue, dated the 27th February, 1967 (Annexure C), setting aside the orders of the Collector of Patna and of the Commissioner in Appeal, and dismissing the petitioners' application under 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). 2. One Premawati Devi alias Munna Bibi (opposite party no. 2) sold 2.62 acres of land to Shri Rampadarath Singh (opposite party no. 1) by executing a sale-deed on the 9th October, 1964, for a sum of Rs. 2,000/-. The document was in due course, presented for registration, and execution was also admitted before the Sub-Registrar; but before the process of registration could be completed by the Sub-Registrar by endorsing the necessary certificate on the document under Section 60(1) of the Indian Registration Act 1908, and the copying out of the endorsement and the certificate in the relevant registrar under Section 61 (1) the petitioner obtained a certified copy of the sale-deed on the 14th November, 1964. On the 28th November, 1964 he filed an application under Section 16(3) of the Act before the Collector, enclosing, along with the application, a chalan showing deposit of the entire purchase money with an additional sum of ten per cent thereof as required by the proviso to Clause (1) of Section 16(3). The Collector thought that the application was validly presented, and took steps on 30th November, 1964, to put the applicant in possession of the property. The applicant claimed to be a co-sharer and, as such entitled to the right of pre-emption recognised in Section 16(3) (iii) of the Act. He was also given possession as an interim arrangement under Clause (ii) of Sub-section (3) of Section 16, pending the disposal of his application. It is, however admitted by all concerned that the process of registration was completed only on the 30th November, 1964, two days after the presentation of the application by the petitioner. He was also given possession as an interim arrangement under Clause (ii) of Sub-section (3) of Section 16, pending the disposal of his application. It is, however admitted by all concerned that the process of registration was completed only on the 30th November, 1964, two days after the presentation of the application by the petitioner. It is also admitted that the certified copy of the sale-deed filed by the petitioner on the 28th November, 1964, was an exact copy of the sale-deed, though it could not possibly contain the endorsement and certificate referred to in Section 60(1) of the Registration Act as these took place two days later. Opposite party nos. 3 and 4 are alleged to be subsequent transferees from Shri Rampadarath Singh (opposite party no. 1), the transfer having taken place on the 5th December, 1964. 3. The learned Collector of Patna, by his order dated the 16th April, 1966, held that the petitioner was a co-sharer of the transferor, Premwati Devi, and as such, was entitled to re-conveyance of the property by the transferee in his favour, as provided in Section 16(3) (iii) of the Act. Before the Collector, no objection was taken to the maintainability of the application on the ground that, on the date of the filing of the application, viz., 28th November, 1964, the transfer in favour of Rampadarath Singh was not complete; this point was taken up for the first time before the learned Commissioner who, however, rejected it, holding that, in view of the admitted fact that the registration was completed on the 30th November, 1964, there was no invalidity in the proceeding resulting in the order in favour of the petitioner. But, when the matter was taken up before the Additional Member, Board of Revenue, by way of Appeal against the Commissioner's order, this point was argued at some length, and the learned Member, relying on some of the decisions of this court, held that, on the date of the presentation of the application by the petitioner on the 28th November, 1964, the transfer was not completed and that there was no valid presentation, in as much as the petitioner did not comply with Rule 19(2) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963 (hereinafter referred to as the Rules). Hence, he reversed the order of the Commissioner and the Collector. 4. Hence, he reversed the order of the Commissioner and the Collector. 4. The three clauses of Sub-section (3) of Section 16 of the Act may now be quoted :- "(i) when any transfer of land is made commencement of this to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat ho1dirig land adjoining the land transferred, shall be entitled within three months of the date of registration of the document of 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 per cent thereof is deposited in the prescribed manner within the said period. (ii) 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 (1) 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 per cent of the purchase money out of the deposit made under Clause (1). (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." 5. As pointed out by a Bench of this court in (1) Rajkishore Singh. V. Bhubneshwari Singh (1968 B. L. J. R. 33) this provision of the Act is undoubtedly a piece of beneficent legislation intended primarily to prevent undue fragmentation of holding and to facilitate consolidation with a view to the utilisation of the land in the most advantageous manner. As pointed out by a Bench of this court in (1) Rajkishore Singh. V. Bhubneshwari Singh (1968 B. L. J. R. 33) this provision of the Act is undoubtedly a piece of beneficent legislation intended primarily to prevent undue fragmentation of holding and to facilitate consolidation with a view to the utilisation of the land in the most advantageous manner. For this purpose; whenever a transfer of rand is made, the co-sharer of transferor or a raiyat of adjacent land is given the right to obtain re-conveyance of the same property by the transferee through the medium of the Collector. The transferee is undoubtedly entitled to the full purchase money plus ten per cent thereof, and the proviso to Clause (i), quoted above, absolutely prohibits even the entertainment of an application under Section 16 (3) (i) unless the said sum is deposited in the prescribed manner. The application is also required to be filed in the prescribed manner. Hence, we have to examine the Rules made under the Act. Rule 19(1) says that the application shall be in Form No. LC 13, in which the applicant (either a co-sharer of the transferor or a raiyat of the adjacent land) is required to enclose, along with his application, (1) a chalan from the treasury showing deposit of the entire purchase money with ten per cent thereof, and (2) a copy of the registered deed by which the land has been transferred by the raiyat-transferor. Sub-rule (2) of Rule 19, on whose interpretation the result of this writ petition depends to a large extent, may now be quoted; “A copy of chalan, showing deposit of the amount under Sub-rule (1) together with a copy of the registered deed, shall be filed along with the application in which also a statement to this effect shall be made". 6. On the filing of such an application, the Collector even before holding the enquiry, is given the extraordinary power by Clause (ii) of Sub-section (3) of Section 16 to put the applicant in possession of the land pending decision. Clause (ii) does not say that he should make any preliminary enquiry before putting the applicant in possession. 6. On the filing of such an application, the Collector even before holding the enquiry, is given the extraordinary power by Clause (ii) of Sub-section (3) of Section 16 to put the applicant in possession of the land pending decision. Clause (ii) does not say that he should make any preliminary enquiry before putting the applicant in possession. The only condition required hy Clause (ii) of -Sub-section (3) of Section 16 is (1) the deposit must be made as required by the Statute, and (2) there must be a valid transfer as evidenced by a copy of the registered deed. Clause (iii) of Sub-section, (2) of Section 16 of the Act makes it mandatory that a transfer of land shall be made only by a document registered in accordance with the provisions of the Indian Registration Act, 1908. The Collector may compare the recitals in the copy of the registered deed with the money deposited and the facts mentioned in the application, and, if he is satisfied that there is no error, he may immediately put the applicant in possession by dispossessing the transferee. But, if the application is eventually dismissed, the dispossessed transferee is entitled to restoration of possession together with solacium amounting to ten per cent of the purchase money deposited under Clause (i). If, however, the application is allowed, the Collector may direct the transferee to re-convey the property to the applicant by executing and registering a document of transfer. 7. Sub-section (3) of Section 16 of the Act gives statutory recognition to the well known right of preemption to either the co-sharer or the adjacent raiyat. Conferring on him a preferential right to acquire land belonging to another person on the occasion of a transfer by the later. It is true that some of the technicalities of the Mohammadan Law of pre-emption specially on procedural matters, have been ommitted, and the law somewhat simplified. It is also true, as urged by Mr. Kailash Roy that, where as under the general law of pre-emption, the pre-emptor has a right of substitution in the place of the transferee and not a right of repurchase [see(2) Bishan Singh V. Khazan Singh, A. I. R. 1958 Supreme Court 838], in the aforesaid sub-section, only a right of repurchase is conferred. Kailash Roy that, where as under the general law of pre-emption, the pre-emptor has a right of substitution in the place of the transferee and not a right of repurchase [see(2) Bishan Singh V. Khazan Singh, A. I. R. 1958 Supreme Court 838], in the aforesaid sub-section, only a right of repurchase is conferred. In one respect, however, the sub-section makes a radical departure from the general law of preemption by conferring on the Collector the extraordinary power to put applicant in possession even before the completion of the enquiry, though adequate provision has been made to compensate the aggrieved party, if the results of the enquiry are against the applicant. But, notwithstanding these procedural differences, the essential right conferred by Section 16(3) is nothing else but the right of pre-emption, and hence some of the well known principles regarding the law of preemption laid down by the High Courts and by the Supreme Court will have to be given due weight subject, of course, to the express language contained in the section and in the rules. 8. On the admitted facts, there was noncompliance with the provisions of Sub-rule (2) of Rule 19. The copy of the sale-deed, which was filed on the 28th November, 1964 before the Collector, was a copy obtained prior to the completion of the process of registration, and hence it cannot be held to be a copy of the "registered deed" as required by Sub-rule (2) of Rule 19. It did not, and could not possibly, contain a copy of the endorsement and certificate referred to in Section 60(1) of the Registration Act. It is true that, when the Collector took action on the application, viz., on the 30th November, 1964, the process of registration was completed but, even thereafter, no fresh copy of the completed registered deed was obtained from the Sub-Registrar's office and filed before the Collector. The question for consideration, at present, is whether, under the aforesaid circumstances, the proceeding under Section 16(3) can be said to have been validly instituted or else whether the entire proceeding is invalid as there was no proper presentation. The answer to this will•• depend on whether the requirement of Sub-rule (2) of Rule 19 can be said to be mandatory or directory, and whether there has been substantial compliance with the said sub-rule. 9. The answer to this will•• depend on whether the requirement of Sub-rule (2) of Rule 19 can be said to be mandatory or directory, and whether there has been substantial compliance with the said sub-rule. 9. As pointed out by their Lordships of the Supreme Court in (3) State of U. P. V. Manbodhan Lal Srivastava (A. I. R. 1957 Supreme Court 912 at 918), the question whether a statutory provision is mandatory or directory depends on the intent of the Legislature which could be ascertained not only from the pharaseology of the provision but by considering its nature, its design and the consequences which would follow from construing it one way or the other. If the requirement of Rule 19(2) is meant purely for the benefit of an individual, it may be urged with some justification that it is only directory; but, here, it cannot be said to be meant for the benefit of the app1icant only or of.....the transferee. On the contrary, it is the foundation of the jurisdiction of the Collector to proceed under the Act. The right of pre-emption under Section 16(3) arises only when there is a transfer of land. The transfer here means a transfer whir his otherwise valid and complete. In (4) Ram Saran Lal V. Mosst. Domini Kuer (A. I. R. 1961 Supreme Court 1947), their Lordships by a majority, resolved the conflict of decision as to the stage at which the transfer of immovable property by registration was completed by saying that it was only after the document had been copied out in the records of the Registration Office, as provided in Section 61 of the Act, that the transfer was complete. It is true that thereafter, by virtue of Section 47 of the Registration Act, the document will operate from the time of its execution. But, here on the 28th November, 1964, when the application was presented the transfer was not complete and, consequently the petitioner had no right to apply for pre-emption. The aforesaid judgment of their Lordships of the Supreme Court is on the same lines as the view taken in (5) Mt. Domini Kuer V. Ram Saran Lall (A. I. R. 1957 Patna 545), which again is based on earlier decisions of the Patna and the Calcutta High Courts. The significance of the requirement of Rule 19(2) will now be apparent. Domini Kuer V. Ram Saran Lall (A. I. R. 1957 Patna 545), which again is based on earlier decisions of the Patna and the Calcutta High Courts. The significance of the requirement of Rule 19(2) will now be apparent. The right of the applicant to claim pre-emption arises only when there is a completed transfer, and the jurisdiction of the Collector to receive the application and take further action also arises only when the transfer is complete. The filing of a copy of the registered deed is, therefore, absolutely mandatory so that the Collector, on going through it, may be satisfied that the petitioner has a right to apply, and he (the Collector) has thereafter jurisdiction further to proceed in the matter. As already pointed out, he could immediately without any enquiry, dispossess the transferee, and put the applicant in possession by virtue of Clause (ii) of Sub-section (3) of Section 16. This drastic power of dispossessing a person, who may be in possession on the basis of a valid transfer in his favour, is itself indicative of the fact that all the papers, on the basis of which the Collector exercises jurisdiction, must be properly filed. It is true that, in the present case, the Collector took no steps till the 30th November, 1964 by which date the process of registration was admittedly completed; but that does not affect the legal question as to whether the filing of a copy of registered deed under Rule 19 (2) is mandatory or not. The Collector could as well have put the applicant in possession on the 28th November, 1964, if he had omitted to notice the fact that the copy of the sale-deed filed was not a copy of the registered sale-deed. 10. It is well settled that, where statutory provisions affect rights of the parties and are based on public policy, strict construction should be adopted. I need only refer to Maxwell on Interpretation of Statutes, 11th Edition Pages 275 to 281 and 375 to 378. Unlike the ordinary law of preemption which could be enforced only after the enquiry is completed, Section 16 (3) (iii) has conferred drastic rower which has the effect of adversely affecting the right of the transferee as regards his right to continue in possession of the property, and hence a very strict construction will have to be adopted. Unlike the ordinary law of preemption which could be enforced only after the enquiry is completed, Section 16 (3) (iii) has conferred drastic rower which has the effect of adversely affecting the right of the transferee as regards his right to continue in possession of the property, and hence a very strict construction will have to be adopted. Apparently, the Legislature did not want the Collector to embark on any enquiry as to whether there was valid transfer or not. As soon as a copy of the registered deed is filed, he can draw the inference permitted by Sub-section (2) of Section 60 of the Registration Act, and assume that transfer was valid and complete, and when the other conditions are fulfilled, immediately put the applicant in possession. 11. I may also refer to (6) Chander Shekhar Tiwari V. Ram Prasad Dubey (A. I. R. 1950 Patna 93), where their Lordships pointed out that the law of pre-emption was full of technicalities, and that formality was the assence of the doctrine of pre-emption, and the emergence of the right is dependent upon the correct preformance of the ritual. It is true that these observation were made in connection with the various formalities for enforcing the Mohammadan Law of pre-emption, but they apply with equal force in construing the statutory provisions based mainly on the recognition of those rights. 12. I may also refer in this connection to the well known decisions of the Privy Council and the High Courts regarding strict compliance with the provisions of the Public Demands Recovery Act; see (7) Nageshwar Prasad Singh V. Rai Bahadur Kashinath Singh (1958 B. L. J. R. 821) and the decisions cited therein. It was held that, in as much as a certificate under that Act has the force of a decree, it should be couched in the form prescribed by the statutes and the provisions contained in the Act should be very strictly construed, and the Certificate Officer must conform to the form prescribed. The right of pre-emption conferred by Section 16 (2) is in no way inferior to the right conferred on a certificate holder by a certificate, and strict compliance with the formalities must be insisted upon. 13. The right of pre-emption conferred by Section 16 (2) is in no way inferior to the right conferred on a certificate holder by a certificate, and strict compliance with the formalities must be insisted upon. 13. I may also refer to (8) Jagat Dhish Bhargava V. Jawahar Lal Bhargava (A. I. R 1961 Supreme Court 832) where the question as to whether the provisions of Order XLI Rule 1 of the Code of Civil Procedure were mandatory or directory was considered. The said rule requires that a certified copy of the decree should be filed along with the memorandum of appeal. Their Lordships held (see paragraph 5) that there was “no doubt that the requirement that the decree should be filed along with the memorandum of appeal is mandatory and in the absence of the decree, the filing of the appeal would be incomplete, defective and incompetent". There the decree was the basis on which execution was sough; whereas, here, the registered sale-deed is the basis on which the right of preemption is claimed by the applicant. On general principles, there is no difference between the two, so far as the mandatory nature of the requirement is concerned. It is true that, in that case, when the decree was eventually filled within the period of limitation, their Lordships held that the appeal should be deemed to have been validly presented, and directed that the appeal should be heard in accordance with law. Here also, if the applicant had filed a certified copy of the aforesaid registered deed within the period of three months from the date of the transfer, the principle of that decision might perhaps have helped him, and further action taken by the Collector would have been valid, but, admittedly, no such copy has yet been filed. This is not a case of an irregularity in complying with the requirement of Sub rule (2) of Rule 19 of the Rules but a complete ommission to comply with the same. 14. Mr. This is not a case of an irregularity in complying with the requirement of Sub rule (2) of Rule 19 of the Rules but a complete ommission to comply with the same. 14. Mr. Lal Narain Sinha drew a distinction between the filing of a copy of a decree as required by Order XLI Rule 1, Civil Procedure Code, and the filing of a copy of the registered deed under, Rule 19(2) and urged that, once a decree has been passed, a right has accrued to the decree holder, and the filing of a copy of the decree is only evidence of that right; whereas, here, until the registration is completed, the transfer is not complete, and the applicant gets no right of preemption. According to him, therefore, on the papers filed on the 28th November, 1964, before the Collector, there was no right to the petitioner to invoke Section 16(3) of Act, nor has the Collector any jurisdiction. For the purpose of disposing of this writ petition, it is, however, unnecessary to consider what would have been the result if the applicant had actually filed a copy of the completed registered deed within the period of three months from the date of registration, i.e. from the 30th November, 1964, I would leave that question open. 15. Mr. Roy thereupon contended, relying on the well known decision of Lord Reading in(9) The King V. Lincolnshire Appeal Tribunal [(1917) (1) King's Bench 1], that the right of the petitioner should not be taken away on a mere technicality. But the principle of that decision was based solely on the view taken that the provisions of the statutory regulation were made mainly with a view to give due notice to the party concerned. Here, however, as already pointed out, the provisions of Rule 19 (2) are not for the benefit of a party only, but they are the foundation for the assumption of jurisdiction by the Collector and the passing of very drastic orders by him infringing on the rights of other parties (Sic). 16. Here, however, as already pointed out, the provisions of Rule 19 (2) are not for the benefit of a party only, but they are the foundation for the assumption of jurisdiction by the Collector and the passing of very drastic orders by him infringing on the rights of other parties (Sic). 16. It was then urged that, if the filing of a copy of the registered deed, along with the application, was considered to be mandatory, the Legislature would have made suitable provision in Clause (1) of Sub-section (3) of Section 16 of the Act itself, as has been done in that proviso so far as the payment of the purchase money was concerned. Mr. Roy very much emphasised the distinction between the language used in the proviso to the effect that "provided that no such application shall be entertained" on the one hand and the language used in Sub-rule (2) of Rule 19 on the other. In my opinion, this distinction does not affect the legal principle. In the proviso to Clause (1) of Sub-section (3) of Section 16, the Legislature clearly stated that the application should be made "in the prescribed manner." That was indicated in Rule 19 (2). Moreover, by Section 45 (2) of the Act, Rules are required to be placed before the Legislature, and may be modified by the Legislature, if it so desires. Hence, the Rules must be deemed to have obtained the implied assent of the Legislature itself, and the mandatory character of the filing of a copy of the registered deed cannot be taken away merely because it is inserted in the rule and not provided in the parent Act. 17. I may now notice another very ingenious argument advanced by Mr. Roy. He urged that the endorsement and certificate on a registered document required to be made under Section 60 (1) of the Registration Act should be taken to be distinct from the document as such, and that, once it is admitted that the process of registration was completed on the 30th November, 1964, a copy of the sale-deed obtained prior to that date should be deemed to be a copy of the registered document, even though it may not contain an endorsement and certificate required by Section 60 (1) of the Registration Act. In support of this contention, he invited our attention to the language of Section 67 of the Registration Act where, while referring to a document registered under Section 30 (2) of that Act, the Legislature has distinctly referred to (1) a copy of the document and (2) a copy of the endorsements and certificate. In my opinion, this argument is too far fetched. Section 67 of the Registration Act deals with the special procedure to be adopted where registration is affected by the Registrar of a district, other than the district where the property is situated. He is required to forward a copy of the document and of the endorsement and certificate to the Registrar within whose district any part of the property is situated, and the receiving Registrar is required by Section 66 (2) to file the document and the other papers in Book No. 1. This is a special provision, and its contents cannot be used to justify an inference that a copy of a document obtained prior to the completion of the process of registration, must be deemed to be a copy of a registered document, if registration is admitted to have taken place thereafter. 18. It is true that the Collector's office did not notice the fact that the copy of the sale-deed filed on the 28th November, 1964, was not a copy of the registered document, and did not point out the defect to the petitioner so as to give him an opportunity to file the appropriate copy of a subsequent date within the period of limitation provided in Section 16 (3) of the Act. It is also true that the opposite party took up this point for the first time only before the Commissioner, and not at any earlier stage. It was, therefore, urged that, if the application of the petitioner is thrown out, as has been done by the Additional Member, Board of Revenue, the petitioner will lose the right of pre-emption conferred by Section 16 (3) because he cannot now file a fresh application with a copy of the registered sale-deed, and claim the right. The result will indeed be unfortunate for the petitioner; but he cannot put the blame either on the Collector or on the opposite party for the unfortunate result. The result will indeed be unfortunate for the petitioner; but he cannot put the blame either on the Collector or on the opposite party for the unfortunate result. There is no justification for him to overlook the mandatory requirement of Rule 19 (2), and to omit to file a copy of the registered sale-deed after the 30th November, 1964, within the period of limitation permitted by Section 16 (3) (1) of the Act. 19. There was some controversy as to whether opposite party nos. 3 and 4 were bonafide purchasers from opposite party no. 1 or else whether they were mere farzidars. Mr. Lal Narain Sinha urged that the views taken against the opposite parties by the Collector and the Commissioner were based on no evidence and should be ignored. He further urged that, in as much as they purchased the property on the 5th December, 1964, and they were adjacent raiyats of the disputed land, they had also a right to claim pre-emption by virtue of Section 16 (3). He further urged that Section 16 (3) of the Act does not give indication as to whether as between a co-sharer and a raiyat of adjacent land, the former should get preferential right to claim pre-emption. The Act is silent on this point, as pointed out in (1) Rajkishore Singh V. Bhubneshwari Singh (1968 B. L. J. R. 33). According to Mr. Lal Narain Sinha, therefore, both the applicant and opposite party nos.3 and 4 were equally entitled to the right of pre-emption, and that, consequently, the application should fail. He distinguished (1) 1968 B. L. J. R. 33 on the ground that there the person who wanted to defeat the right of pre-emption of the applicant had purchased the property after the expiry of the period of three months from the date of the original transfer, and thereby lost all his right under Section 16 (3) (i). It is unnecessary to decide this point here, because I have already held that the application of the petitioner was incompetent due to his failure to comply with the mandatory provisions of Rule 19 (2), and the Collector had no jurisdiction to take any action under the provisions of the Act on the basis of such an invalid application. 20. For these reasons, the order of the Additional Member, Board of Revenue is affirmed, and this application is dismissed with costs. 20. For these reasons, the order of the Additional Member, Board of Revenue is affirmed, and this application is dismissed with costs. There will be one consolidated hearing fee of Rs. 200/- in this writ and the two connected writs, Civil Writ Jurisdiction Cases Nos. 116 and 117 of 1967. Application dismissed. B. N. JHA, J. I agree.