Nathuni Sao v. Jagar Nath Pd. Pathak — 1991 DIGILAW 350 (PAT)

JUDGMENT K. B. Sinha, J.-This app1ication under Articles 226 and 227 of the Constitution of India has been filed for quashing the order passed by respondent no. 3, the Land Reforms Deputy Collector, Buxar, as contained in Annexure 3, as also the order passed by respondent no. 4, the Collector, Bhojpur, as contained in Annexure 4. 2. The facts of the are that the petitioner purchased 4 and ½ decimals of land of plot no. 1356 and 1 and ½ decimals of land of plot no. 1219, both, appertaining to Khata no. 184, situated in village Sonbarsa, with in Nawanagar Police Station in the district of Bhajpur, from respondent no. 2 Bishun Turha for a sum of Rs. 2,000/- by a registere sale-deed. The sale-deed was executed on 24.8.1970 and registered on 15.12.1970. Deceased respondent no. I claiming to be the co-sharer and adjoining raiyat of the land in question, filed an application under sub-section (3) of section 16 of the Bihar Land Reforms Fixation of Ceiling Area and Acquisition of Surplus Lands Act, 1961 (hereinafter 'referred to as 'the Act') on 24.11.1970 after observing all the formalities as provided under the Act. Prayer was m2de by him that the land in question should be transferred by the vendee on the terms and conditions contained in the sale-deed and pending decision of the case, he should be declared to be entitled to be put in possession of the land with immediate effect. It may be mentioned here that the petition of pre-emption was filed by the sole respondent, who died during the pendency of this petition before this court and his heirs and legal representatives were substituted by the order dated the 19th of May, 1989. 3. The land Reforms Deputy Collector took cognizance of the case and ordered to issue notice to the petitioner. In response to the notice, the petitioner filed his show cause stating, inter alia, that deceased respondent no. I was possessed of excess land than the ceiling limit fixed under the Act and so his prayer was fit to be rejected. After hearing the parties and upon consideration of the documents filed on their behalf the petition was allowed on the 15th of February, 1980, and the petitioner was directed to convey the land to respondent no. 1. A copy of the order is Annexure to this petition. After hearing the parties and upon consideration of the documents filed on their behalf the petition was allowed on the 15th of February, 1980, and the petitioner was directed to convey the land to respondent no. 1. A copy of the order is Annexure to this petition. The petitioner filed an appeal before Respondent No.4, the Collector, Bhojpur, against the said order as provided under section 30 of the Act, which was disposed of on 21.9.1981 with the observation that in view of the recent Ordinance, the appeal had abated and, therefore, further action was not required to be taken. A copy of the order is Annexure 4. Thereafter, this petition was tiled on behalf of the petitioner, which was admitted for hearing on the 25tn of February, 1982. 4. Mr. Chandramauli Kumar Prasad, learned senior counsel, appearing on behalf of the petitioner has very ably argued the case and raised a short point of law challenging the maintainability of the petition filed by the deceased respondent no. 1 before respondent no. 2, the Deputy Collector, Land Reforms, Buxar. It has been urged that the sale-deed was executed by respondent no. 2 in favour of the petitioner on the 25th of August, 1970, which was registered on the 15th of December, 1970. Deceased respondent no. 1 filed the application for pre-emption on the 24th of November, 1970, before the registration of the deed was complete. Submission has been made that according to the provisions of section 16 of the Act, an application for pre-emption can be validly filed only after completion of the registration of the sale-deed, otherwise it has to be rejected as premature. 5. In support of the contention, reliance has been placed on a Bench decision of this court in Kauleshwar Singh v. Parmanand & others (A.I.R. 1974 Patna 407). wherein it has been held that ordinarily rights of the parties are adjudicated with reference to the date of commencement of the proceeding. When an application is filed for pre-emption on a date when the pre-emptor had no right to file the application and if effective action is taken on that application by the Collector on a date before the completion of registration, then the action is without jurisdiction, as the condition precedent for entertaining the application is not fulfilled. When an application is filed for pre-emption on a date when the pre-emptor had no right to file the application and if effective action is taken on that application by the Collector on a date before the completion of registration, then the action is without jurisdiction, as the condition precedent for entertaining the application is not fulfilled. It has further been observed that the words used in section 16 (3) of the Act or the rules framed thereafter do not indicate that a proceeding without jurisdiction which is void ab initio becomes a good proceeding as soon as registration is complete during its pendency. The right of the pre-emptor has to be adjudged on the commencement of the proceeding in the sense of taking action by the Collector and not on the date of the order. 6. Mr. Shiv Kumar Singh, learned senior counsel, appearing on behalf of the respondents, with his usual fairness, conceded candidly and did not dispute the proposition of law raised on behalf of the petitioner. He however has cont6nded that the Collector passed the order, as contained in Annexure 4, in view of the Ordinance, by which section 32 (A) was added in the Act. It was subsequently declared ultra vires by a Bench of this Court in Bibi Eda Khatoon v. State of Bihar (1982 P.L.J.R. 40). As the said provision was declared ultra vires, so the resultant effect is that the appeal, filed by the petitioner, has, automatically, revived. It has been submitted that, now, the appeal is pending before the Collector and, therefore, the petitioner should be directed to agitate this point before the appellate court. 7. Before dealing with the contention of the respondents, it may be mentioned that the legal maxim, spelt out in Kauleshwar Singh (supra) bas been consistently followed by this court in a number of cases, but it is not necessary to catalogue them. It has already been noticed that the sale-deed was executed by respondent no. 2 in favour of the petitioner on the 25th of August, 1970, and it was registered on the] 5th of December, 1970. Deceased respondent no. 1 had filed the application for preemption on the 24tb of November, 1970. The registration was not complete on the date when the petition under section 16 (3) of the Act was filed before the Deputy Collector, Land Reforms. Deceased respondent no. 1 had filed the application for preemption on the 24tb of November, 1970. The registration was not complete on the date when the petition under section 16 (3) of the Act was filed before the Deputy Collector, Land Reforms. It is, therefore, manifest that the respondent-pre-emptor had no right to file the petition and the cognizance taken by the Deputy Collector. Land Reforms, Buxar, on the basis of the said petition was without jurisdiction. 8. In view of the contention raised on behalf of the respondents a question arises as to whether it would be proper to direct the petitioner to approach the appellate court at this stage for adjudication of the proceeding, which is void ab initio? According to learned counsel for the petitioner, the argument, advanced on behalf of the respondents, in substance is that the petitioner should be asked to exhaust the alternative remedy of appeal, which was not available to him when this petition was admitted for hearing on the 25th of February, 1982. It has been urged that when this writ application was filed before this court, section 32-A of the Act, which was inserted by the Amendment Act, 1976 (Bihar Act 22 of 1977), was very much in force and in view of this provision, the appeal, filed by the petitioner before the Collector, had abated. Submission has been made that after lapse of such a long time the petitioner should not be denied his right of getting this matter adjudicated by this court and asked to approach the appellate court. In support of his contention, reliance has been placed on Messrs Govind Saran vs. State of Bihar (1983 P.L.J.R. Page 26). in which it has been he1d that once the writ has been admitted, it would not be fair to refuse to exercise jurisdiction by this court and more sc when the order in question is void, illegal and without jurisdiction. Learned counsel for the petitioner has also referred to the case of Bachchu Prasad Singh vs. Bharat Wagon & Engineering Co. Ltd., (1990) (1) Patna Law Journal Report Page 536), in which almost a similar point fell for consideration. It has been held that a plea as to the alternative remedy if raised at the first instance by the respondents before the case is admitted for hearing would be of some importance. Ltd., (1990) (1) Patna Law Journal Report Page 536), in which almost a similar point fell for consideration. It has been held that a plea as to the alternative remedy if raised at the first instance by the respondents before the case is admitted for hearing would be of some importance. Such a plea is not a bar to jurisdiction under Article 226 of the Constitution of India. It has further been observed that it is only reminding the Court that an alternative and efficacious remedy is available where the whole dispute may adequately be adjudicated and it is for the Court to decide as to whether it shall impose upon its jurisdiction any limitation as to the petitioner's exhausting the alternative remedy or not. 9. Now, adverting to the instant case, it is worthwhile to note that no argument has been advanced on behalf of the respondents that any disputed question of fact is involved in this case. As mentioned above, only a point of law has been raised on behalf of the petitioner. Deceased respondent no. 1 had filed the petition before respondent no. 2 on the 24th of November, 1970, and since then the proceeding has remained pending for final adjudication in one court or the other. The hearing petition commenced on the 29th of August, 1991. Thus, by now, a period of about twentyone years has already elapsed from the date of the commencement of the proceeding. It has already been held that the petition for pre-emption filed by the deceased-respondent under section 16 (3) of the Act was not maintainable as cognizance was taken by respondent no. 2 on the 24th of November, 1970 before the registration of the sale-deed in question was complete and consequently the order passed by the said respondent is without jurisdiction and void. 10. In my view, it will not be proper to direct the petitioner to pursue the matter before the appellate court as it will amount to giving fresh lease of life to a proceeding, which is void ab initio. It will also cause unnecessary harassment to the parties. 10. In my view, it will not be proper to direct the petitioner to pursue the matter before the appellate court as it will amount to giving fresh lease of life to a proceeding, which is void ab initio. It will also cause unnecessary harassment to the parties. I would like to refer to the case of Khurai Municipality vs. Kamal Kumar (A.I.R. 1965 S.C. Page 1321), in which exactly the same point was raised before the Supreme Court that the appeal had already been preferred by the respondents and, therefore, they were not entitled to any relief under Article 226 of the Constitution of India. The said argument was repelled and it was held thus: "Before us it is contended by Mr. Setalvad on behalf of the Council that an appeal had already been preferred by the respondents against the assessment list and, therefore they were not entitled to any relief under Article 226 of the Constitution. It is true that the High Court would not ordinarily entertain a petition under Article. 226 of the Constitution where an alternative remedy is open to the aggrieved party. Though that is so the High Court has jurisdiction to grant relief to such a party if it thinks proper to do so in the circumstance of the case. In the present case the High Court has chosen to exercise discretion in favour of the respondents and it would not be right for us to interfere with the exercise of that discretion unless we are satisfied that the action of the High Court was arbitrary or unreasonable." 11. It is well-known that where an action of the authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court, will issue appropriate order or direction to prevent such consequences (A.I.R. 1961 S.C. 372). 12. For the reasons mentioned above, this petition is allowed and the orders, as contained in Annexures 3 and 4, are hereby quashed. However, in the facts and circumstances of the case, there will be no order as to costs.