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2004 DIGILAW 197 (JHR)

Dukhilal Sao v. State Of Bihar

2004-02-23

AMARESHWAR SAHAY

body2004
ORDER Amareshwar Sahay, J. 1. In the Instant writ application, the petitioner has prayed for quashing of the order as contained in Annexure 2 to the writ application, dated 18.09.1990 passed by the L.R.D.C., Dhanbad in Land Ceiling Case No. 17/1983-84/ 1/1990-91 rejecting the application filed by the petitioner under Section 16(3) of the Land Ceiling Act, 1961. The said order of the L.R.D.C. was confirmed in appeal by order dated 20th of July, 1992 by the Additional Collector, Dhanbad, as contained in Annexure 3 to the writ application. The petitioner, thereafter preferred a Revision which was also dismissed by the Member, Board of Revenue, Bihar, Patna by the order doted 30th of June. 1994, as contained in Annexure 4 to the present writ application. The land in dispute is Plot No. 367 under Khata No. 18 Area more or less 2 Kalhas. 2. An application under Section 16(3) of the Land Ceiling Act was filed by the petitioner, stating therein that he was the adjoining Raiyat. It is stated that Bhola Nath Singh, the land holder, sold the aforesaid disputed land by sale-deed No. 14053 dated 22.12.1983, of which, the Registration was completed on 28.01.1984, to Babli Devi who was neither a co-sharer nor an adjoining Raiyat of the land in question. It was further stated that the petitioner deposited the purchase money of Rs. 5,000/-together with 10 percent thereof as required under Sub-rule (i) of Rule 19 of the Rules and Section 16(3) of the Land Ceiling Act. 3. It is further stated that the petitioner came to know that the vendor in collusion with vendee, retransferred the said land covered under the sale-deed dated 22.12.1983 and has created again a sale on 11.01.1984, only in order to defeat the right of pre-emption of the petitioner and the second sale dated 11.01.1984 was collusive, fraudulent, without consideration and Ferji. On the above ground the writ petitioner prayed to allow pre-emption of the land in dispute. 4. The claim of the petitioner was objected vehemently by the respondents by filing a reply as also both the parties adduced documentary as well as oral evidence in support of their case before the trial Court. 5. On the above ground the writ petitioner prayed to allow pre-emption of the land in dispute. 4. The claim of the petitioner was objected vehemently by the respondents by filing a reply as also both the parties adduced documentary as well as oral evidence in support of their case before the trial Court. 5. The learned L.R.D.C. by impugned order dated 18.09.1990 after considering in detail the case of the respective parties as well as the oral and documentary evidence adduced, came to the following finding of facts : (i) That the applicant was not an adjoining Raiyat of the vendor but was a land holder. (ii) Since Shishir Kumar Pathak and Mundrika Sharma, purchased the land in question at Rs. 23,000/- and the applicant did not deposit the sale price together with interest of the said land before filing of the application under Section 16(3) of the Land Ceiling Act and, therefore, against the aforesaid Shishir Kumar Pathak and Mundrika Sharma, no order of any kind can be passed against them. (iii) That the land in question is not an agricultural land and is not being used for any agricultural purposes and, therefore, the order for pre- emption in favour of the petitioner cant be passed. 6. On appeal filed by the petitioner, the Additional Collector after discussing the materials on record as well as the evidence adduced by the parties held that the right of pre-emption is a weak right and after affirming the findings on facts arrived at by the L.R.D.C., Dhanbad, held that the order of the L.R.D.C. does not suffer from any infirmity and thereby dismissed the appeal on merit. 7. The learned Member, Board of Revenue, Bihar. Patna, before whom the Revision was filed by the petitioner, also held that the lands in question was not an agricultural land and further that since Shishir Kumar Pathak and Mundrika Sharma were not made parties to the proceeding and, therefore, no effective order for preemption can be passed against them. The petitioner having failed before the learned Member, Board of Revenue, Bihar. Patna, has preferred this writ application. 8. It has been submitted by the learned counsel for the petitioner that the finding of the all the three Courts below, on the point that Shishir Kr. Pathak and Mundrika Sharma were not parties or that the amount of Rs. The petitioner having failed before the learned Member, Board of Revenue, Bihar. Patna, has preferred this writ application. 8. It has been submitted by the learned counsel for the petitioner that the finding of the all the three Courts below, on the point that Shishir Kr. Pathak and Mundrika Sharma were not parties or that the amount of Rs. 23,000/- with interest on which land was purchased by those two vendees has not been deposited by the petitioner, is absolutely bad because the petitioner had no knowledge at all about the said sale. But I find that this point has also been discussed in the order of the L.R.D.:C. and on facts, it has rightly been held by him that the petitioner had the knowledge about the sale of the lands in favour of Shishir Kr. Pathak and Mundrika Sharma. 8. I have already gone through the orders passed by the L.R.D.C., Dhanbad, Additional Collector, Dhanbad as well as the Revisional Authority, i.e., the learned Member. Board of Revenue, Bihar, Patna. 9. All the three Courts below have come to the concurrent finding that the disputed land was sold by Bholanath Singh in favour of Smt, Babli Devi for a sum of Rs. 5,000/- and it was retransferred by the said Babli Devi to Bholanath Singh on a consideration of Rs. 5500/- and then again Bholanath Singh sold these lands to Shishir Kumar Pathak and Mundrika Sharma for a consideration of Rs. 23,000/- and these transfers have taken place prior to the filing of the application for pre-emption, i.e., 15.02,1984 but the sale price together with the interest was not deposited by the petitioner. The next finding of fact arrived at by the Courts below is that the petitioner does not hold any Raiyati land adjacent to the disputed land. The further finding of fact is that since Shishir Kumar Pathak and Mundrika Sharma have not been impleaded as a party and, therefore, in their absence no effective order of pre-emption can be passed. Learned counsel for the petitioner could not satisfy that the aforesaid findings of fact arrived at by the Courts below are in any way wrong and perverse. 10. Learned counsel for the petitioner could not satisfy that the aforesaid findings of fact arrived at by the Courts below are in any way wrong and perverse. 10. In view of my discussions and findings above and in view of the settled law that in exercise of the jurisdiction under Article 226 of the Constitution of India, the concurrent finding on the question of facts cannot be disturbed by this Court, accordingly, I find no merit in this application and is thus dismissed but without any costs.