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1969 DIGILAW 44 (PAT)

Lakhwanti Kuer v. Khobhari Dusadh

1969-02-24

MISHRA, WASIUDDIN

body1969
By Court These six applications have been heard together. The question involved is the validity of section 49C of the Bihar Tenancy Act. The petitioner claimed to be a Dusadh by caste and thus a protected tenant, who is entitled to the benefit conferred upon protected tenants under Chapter VII A of the Bihar Tenancy Act, by which, in substance, the raiyati land of a protected tenant can not be transferred without the permission granted in that behalf by the Collector of the District. 2. In C.W.J.C. No. 395 of 1967, the petitioner executed a sale deed dated 18.1.1959 for Rs. 500/- in respect of Khesra No. 273 in khat No. 14 and Khesra Nos. 274 and 253 in Khata No. 49, in all measuring O.05 acre, situated in village Rampur in Shahabad District. Another sale deed was executed by her dated 16.6.1959 for Rs. 300/- in respect of Khesra Nos. 53 (part) and 47 (part) in Khata No. 49, Khesra Nos. 28 (part) and 29 in Khata No. 15, and Khesra No. 151 (part) in Khata no. 14, measuring in all 1.19 acres in the same village. 3. In C.W.J.C. No. 396 of 1967, the petitioner executed a sale deed dated 19.1.1959 for Rs. 800/- comprising khesra nos. 297 and 1299 in Khata no. 62, Khesra Nos, 321 and 340 in Khata No. 15, and Khesra No. 335 in Khata No. 80, measuring a total area of 1.34½ acres in village Rampur. Another Sale deed was executed by her dated 19.1.1959 for 2,000 in respect of Khesra nos. 328, 347 and 349 in khata no. 63, measuring 3.20 acres in the same village. Another sale deed was executed by her dated 27.1.1959 for Rs. 200/- in respect of khesra no. 328 in khata no, 64, measuring 0.61 acre in the same village. She also executed a sale deed dated 17.6.1959 for Rs 200/- in respect of khesra no. 439 in khata no. 63, measuring 0.70 acre. 4. In C.W.J.C. No. 397 of 1967, the petitioner executed a sale deed dated 16.6.1959 in respect of khesra no. 472 in khata no. 63 and khesra no. 400 in khata no. 15, measuring 1.39½ acres. 5. In C.W.J.C. No. 398 of 1967, the petitioner executed a sale deed dated 16.6.1959 with respect to her Kasht lands measuring 34½ decimals for Rs. 500 in favour of the purchaser opposite party. 6. 472 in khata no. 63 and khesra no. 400 in khata no. 15, measuring 1.39½ acres. 5. In C.W.J.C. No. 398 of 1967, the petitioner executed a sale deed dated 16.6.1959 with respect to her Kasht lands measuring 34½ decimals for Rs. 500 in favour of the purchaser opposite party. 6. In C.W.J.C. No. 399 of 1967, the petitioner executed a sale deed dated 16.6.1959 in respect of khesra nos. 111 and 114 in khata no. 62, measuring o.38 acre. 7. In C.W.J.C. No. 400 of 1967, the petitioner executed a sale deed dated 24.4.1957 in respect of khesra no. 191 in khata no. 62, measuring 0.03 acre. 8. The petitioner's case is that she executed the sale deeds without obtaining the execution collector's permission prior to the sale of these deeds of transfer. 9. She states that having come to know that the sales were null and void, she applied under Section 49 (g) before the Block Development Officer for permission to make gift of the aforesaid lands in favour of her husband's son, she herself being a childless widow. The Block Development Officer, by his order dated 28.2.1966 held that the permission sought for could not be granted as she was not in possession or the land. He directed the petitioner accordingly to make an application before the Collector of Shahabad, opposite party no. 3, under Section 49 (k) of the Bihar Tenancy Act for setting aside the sale and for ejecting the respondent purchaser and for being put in possession of the land. Accordingly, the petitioner filed an application on 22.3.1966 under Section 49 (k) before the Collector of Shahabad, stating therein that the sale deeds were executed in contravention of the provisions of the Bihar Tenancy Act and therefore, she was entitled to get possession restored to her. The Collector of Shahabad, however, rejected the petition. An appeal was preferred under Section 49 (0) of the Bihar Tenancy Act by her before the Commissioner, Patna Division. He too, however, summarily dismissed the appeal. A copy of the order passed by the Commissioner is Annexure C. A miscellaneous revision application filed before the Member, Board of Revenue, also was rejected. An appeal was preferred under Section 49 (0) of the Bihar Tenancy Act by her before the Commissioner, Patna Division. He too, however, summarily dismissed the appeal. A copy of the order passed by the Commissioner is Annexure C. A miscellaneous revision application filed before the Member, Board of Revenue, also was rejected. Accordingly, the petitioner has moved this Court for the relief sought for by her on the ground that the transfer of raiyati right by a protected tenant as specified in Chapter VIIA of the Bihar Tenancy Act in contravention of the safeguards provided in that Chapter is bad in law and as such the orders passed by the Collector of Shahabad, the Commissioner, and the Member. Board of Revenue cannot be held to be sustainable and must be set aside. It is true that at one time this view was accepted by this Court Since after the decision, however of a larger Bench of this Court in Bhageran Thakur Vrs. Kewal Singh and others it is now clear that the impugned orders can not be assailed as bad in law. It is no doubt true that in Bhageran Thakur's case referred to above, the Full Bench of this Court had occasion to consider the validity of Section 49C in so far as it relates to the right of a member of the backward class in general and scheduled castes as such were not considered. It may be mentioned that the expression protected tenant in this community to which section the petitioner belongs. The contention made by Mr. Ras Bibari Sinha on behalf of the petitioner is that the Dusadbs belong to scheduled caste and as such the case of a member of the scheduled caste should be distinguished from other backward classes specified in the Government Notification as being comprehended within the category of protected tenant. In our opinion, however it is difficult to accede to that contention. The Full Bench decision relates to all the protected tenants notified by the Government to get the benefit of Chapter VII A. It has been held to be invalid. No doubt, in general terms some exception has been made In favour of scheduled tribes that however, may involve different considerations and Mr. Kailash Roy has submitted that nothing should be said in this judgment in regard to scheduled tribes. No doubt, in general terms some exception has been made In favour of scheduled tribes that however, may involve different considerations and Mr. Kailash Roy has submitted that nothing should be said in this judgment in regard to scheduled tribes. Since the petitioner does not belong to the scheduled tribes, any consideration which might be applicable to the tenancy right of a member of the scheduled tribe will not apply to the facts of the present case since, however the petitioner is a protected tenant and is not a member of the scheduled tribes her case is clearly covered by that decision. 10. The applications must, in the circumstances, be dismissed. There will be no order for costs. Applications dismissed.