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1975 DIGILAW 23 (PAT)

Nand Kumar v. Murat Nath

1975-01-29

B.D.SINGH, BIRENDRA PRASAD SINHA

body1975
Judgment 1. This application by Nand Kumar Singh under Articles 226 and 227 of the Constitution of India is directed against orders, dated the 6th of January 1969 (Annexure 1), passed by respondent No. 10 and dated the 17th of November, 1969 (Annexure 2), passed by respondent No. 11; and the resolution, dated the 22nd of October, 1970 (Annexure 3) passed by respondent No. 12, namely, the Member Board of Revenue. 2. In order to appreciate the points involved in this case, it will be necessary to state, briefly, the facts. Respondents 4 to 9 (third-set) were the owners of 25½ decimals of land out of plot No. 49 under khata No. 115 of touzi No. 776 and 0.84 acre of land out of plot No. 1118 under khata No. 33 of touzi No. 775 of village Manikpur English within Koelwar Police Station in the district of Shahabad (now Bhojpur). On the 9th of June, 1966, out of the aforesaid lands, respondents (third set) sold 22 decimals of land out of plot No. 49 and 63 decimals of land out of plot No. 1118 to respondents 2 and 3 (second set) for a consideration of Rs. 1,500.00 by a registered sale deed. On the 16th of June, 1966, the petitioner filed an application before respondent No. 10 (the Sub-Divisional Officer) under Sec.16, Clause (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be referred as the Act) for pre-emption on the ground that the petitioner held adjoining lands on the North as well as on the West of plot No. 49 and also on the ground that he was a co-sharer of plot No. 49, being the owner of 25½ decimals of land therein. Besides, as stated by the petitioner in paragraph 4 of the application, he held land on south of plot No. 1118. The application of the petitioner before respondent No. 10 was numbered as Bihar Ceiling Act case No. 8 of 1966-67. Subsequently, on the 23rd of August, 1966, Murat Singh (respondent No. 1(first set) also filed an application for pre-emption under Sec.16. Cl. (3) of the Act of the aforesaid lands transferred to respondents (2nd set) chiefly on the ground that he was a co-sharer in respect of the lands in question. Subsequently, on the 23rd of August, 1966, Murat Singh (respondent No. 1(first set) also filed an application for pre-emption under Sec.16. Cl. (3) of the Act of the aforesaid lands transferred to respondents (2nd set) chiefly on the ground that he was a co-sharer in respect of the lands in question. His application was numbered as Ceiling Act case No. 20 of 1966-67 before respondent No. 10. After hearing both the cases and after perusing the evidence on the record, by the impugned order dated the 6th of January, 1969, (Annexure 1), respondent No. 10 rejected the application of the petitioner, whereas, he allowed the prayer of respondent No. 1 chiefly on the ground that respondent No. 1 had larger area of land on the boundary of the lands covered in the said registered sale deed where as the petitioner had a very small area on the boundary. Being aggrieved by the order, the petitioner preferred appeals before respondent No. 11 (the Collector of Shahabad) who also was pleased to dismiss the appeals of the petitioner by his order contained under Annexure 2. Thereafter, the petitioner preferred revision application before respondent No. 12 who also, by his resolution, dated the 22nd of October, 1970 (Annexure 3), was pleased to dismiss the revision application. It may be noticed that, apart from the ground for dismissal of the application by respondent Nos. 10 and 11, the Member Board of Revenue also observed in his resolution that the application of the petitioner under Sec.16 (3) of the Act was not maintainable as it was premature and also because the cognizance was taken by the Sub-Divisional Magistrate prior to the date when the registration of the sale deed was completed; whereas, in the case of respondent No.1, although his application was filed on the 23rd of August, 1966, cognizance was taken by the Sub-Divisional Magistrate on the 20th of November, 1966, on the application filed by respondent No. 1. 3. On behalf of respondent No. 1, a counter-affidavit has been filed on the 13th of May, 1971, in support of the impugned order. Thereafter, reply has been filed by the petitioner on the 23rd of November, 1972, to the counter-affidavit of respondent No. 1. A supplementary affidavit has been filed on behalf of respondent No. 1 on the 22nd of December, 1972. 4. Mr. Thereafter, reply has been filed by the petitioner on the 23rd of November, 1972, to the counter-affidavit of respondent No. 1. A supplementary affidavit has been filed on behalf of respondent No. 1 on the 22nd of December, 1972. 4. Mr. Jagdish Sahay, learned counsel appearing on behalf of the petitioner has assailed the impugned orders and the resolution and he has contended that they have erred in construing the provisions contained under Sec.16 of the Act. He referred to clause 3 of that section, in order to show that the petitioner had better right of pre-emption as against respondent No. 1; as, admittedly, an application on behalf of the petitioner was filed on the 16th of June, 1966; whereas, respondent No. 1 had filed his application on the 23rd of August, 1966. Therefore, he submitted, the rule of first come first served should have been applied. Mr. Sahay further contended in the alternative that respondent No. 12 had erred in taking into consideration that the application of respondent No. 1 was maintainable; whereas that of the petitioner was not maintainable on the ground that the cognizance in the case of respondent No. 1 was taken by the Sub-Divisional Magistrate on the completion of the registration. The registration was completed in the instant case on the 20th of September, 1966. According to him, the only consideration ought to have been the filing of the application itself. If the filing was premature, in that case, the applications of both the petitioner as well as respondent No. 1 ought to have been dismissed. Therefore, he submitted that respondent No. 12 had erred in making distinction between the applications of the petitioner and respondent No. 1. In the result, according to him, he has erred in discriminating the case of the petitioner in violation of Article 14 of the Constitution of India. 5. It will be convenient to deal with the two contentions referred to above of the petitioner together. It has already been mentioned that the application of the petitioner was filed on the 16th of June, 1966, whereas, the cognizance in his case was also taken by the Sub-Divisional Magistrate before the registration of the sale deed was completed on the 20th of September, 1966. It has already been mentioned that the application of the petitioner was filed on the 16th of June, 1966, whereas, the cognizance in his case was also taken by the Sub-Divisional Magistrate before the registration of the sale deed was completed on the 20th of September, 1966. In that view of the matter clearly, the application of the petitioner was not maintainable at all and, therefore, the Sub-Divisional Magistrate as well as the appellate Court had no jurisdiction to entertain the application of the petitioner. If the petitioner had no legal right he has no legal right even today to press the application in this Court under Articles 226 and 227 of the Constitution of India. In our opinion, the application of the petitioner was not entertainable at all under writ jurisdiction. As regards the contention that the case of respondent No. 1 also stood on the same footing is also not tenable because most of the cases which have been cited before us dealt with the cases where the application as well as the cognizance was taken prior to the completion of the registration. Therefore, we do not wish to quash the order passed on the application of respondent No. 1 under our supervisory jurisdiction under Article 227 of the Constitution of India. That apart, since we have already mentioned that the petitioner has no right to press this application, it will not be necessary now to go into the matter any longer with regard to his second submission about the discrimination having been made in the case of the petitioner vis a vis the case of respondent No. 1. 6. In the result, this application is dismissed and the orders and the resolution aforesaid are upheld. In the circumstances, however, there will be no order as to costs.