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2005 DIGILAW 450 (PAT)

Yadu Singh v. State Of Bihar

2005-04-26

AFTAB ALAM

body2005
Judgment 1. Heard Mr. R. K. P. Singh appearing for the petitioner and Mr. Dileep Kumar Jha appearing on behalf of respondent no. 5. 2. This writ petition arises from a preemption proceeding instituted under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act. The petitioner who is the pre-emptor seeks to challenge before this court an order of remand passed by the Member, Board of Revenue. 3. The petitioner filed a claim of preemption challenging the sale of the disputed land in favour of respondent no. 5 on the ground that he was an adjoining raiyat of the land on its southern boundary. The purchaser respondent no. 5 disputed the claim, denying that the petitioner was an adjoining raiyat and raising a counter claim that she too was an adjoining raiyat of the land on its eastern side. The D.C.L.R. upheld the petitioners claim of pre-emption and directed respondent no. 5 to transfer the land in his favour. 4. Against the order passed by the D.C.L.R., respondent no. 5 preferred an appeal which was dismissed at the stage of admission itself by order dated 11.1.2002 passed by the Collector, Nalanda in Ceiling Case No. 9 of 2001. 5. Against the appellate order respondent no. 5 came before the Board of Revenue in Case No. District Nalanda 20 of 2002 and his revision was finally allowed by resolution dated 29.7.2004 by which the Additional Member Board of Revenue set aside the appellate order and remanded the matter to the Collector for passing a fresh order after due consideration of all the materials on record. 6. The petitioner has filed this writ petition challenging the order dated 29.7.2004 passed by the Board of Revenue. 7. Mr. Singh, counsel for the petitioner submitted that in the facts and circumstances of the case the order of remand passed by the Board of Revenue was wholly unjustified and illegal. 8. In support of his case learned counsel relied upon several decisions. He first cited the decisions of this court in Ramesh Singh & Ors. V/s. State of Bihar & Ors., 2003(4) P.L.J.R. 692 and in Sunil Kumar @ Sunil Kumar Singh V/s. State of Bihar & Ors., 2003(4) P.L.J.R. 719 (a second time reported in 2004(2) P.L.J.R. 820 ). 9. In support of his case learned counsel relied upon several decisions. He first cited the decisions of this court in Ramesh Singh & Ors. V/s. State of Bihar & Ors., 2003(4) P.L.J.R. 692 and in Sunil Kumar @ Sunil Kumar Singh V/s. State of Bihar & Ors., 2003(4) P.L.J.R. 719 (a second time reported in 2004(2) P.L.J.R. 820 ). 9. In these two decisions it is held that the revisional power of the Board is not confined only to the issues of law and it had sufficient power to consider the factual aspects of the dispute as well. The two decisions do not hold or even suggest that the Board of Revenue has no power to make a remand to the inferior court. 10. Mr. Singh next cited a bench decision of this court in Ram Prasad Singh & Ors. V/s. State of Bihar & Ors., A.I.R. 1974 Patna 25. In that decision it was held that the provisions of Order 41 of the C.P.C. applied to the revisional proceedings before the Board of Revenue by virtue of Rule 49 of the Bihar Land Reforms Act and hence, an order of remand must conform to the provisions of the Rule 23 or Rule 25 of Order 41 of the C.P.C. To my mind this decision also does not help the petitioner and as the facts of the case further unfold it is clear that the impugned order of ro mand is not in any way in conflict with the ratio of the Division Bench decision. 11. Mr. Singh further relied upon one more decision of this court in Pabittar Singh @ Ram Pabittar Singh & Another V/s. State of Bihar & Others, 2004(4) P.L.J.R. 229 . 12. In that decision it was held that the Board of Revenue should decide on all issues of fact and law and this also does not help the petitioner. 13. It may be noted here that Mr. Singh did not try to deny to the Board its lawful authority to remand a matter to the inferior court. His submission, however, was that in the facts of this case and having regard to the order passed by the appellate authority the Board of Revenue was completely unjustified in passing an order of remand and the order amounted to an error in exercise of jurisdiction. 14. In order to test the submission of Mr. His submission, however, was that in the facts of this case and having regard to the order passed by the appellate authority the Board of Revenue was completely unjustified in passing an order of remand and the order amounted to an error in exercise of jurisdiction. 14. In order to test the submission of Mr. Singh it would be necessary to advert to the appellate order. It is noted above that the Collector dismissed the appeal after hearing the parties at the admission stage. He noted that both in the Khatian and in the sale deed the petitioner was shown on the southern boundary of the transferred land. According to him, therefore, these two documents concluded the issue regarding the petitioner being the boundary raiyat of the disputed land and on that ground alone he dismissed the appeal. 15. The two documents indeed seem to take care of the petitioners claim but on that basis it cannot be said that respondent no. 5 was herself not an adjoining raiyat of the land on its eastern side and the order of the Collector does not even notice the second ground on which respondent no. 5 had resisted the petitioners claim of pre-emption. It is thus clear to me that the Collector had not taken into account the full case of the contesting parties and the Board of Revenue was, therefore, fully justified to remand the matter to the Collector for examining the case after taking fully into account the case of the two sides. 16. For the reasons discussed above, I am satisfied that no interference in this matter is warranted in exercise of the writ jurisdiction of this court. This writ petition is accordingly dismissed.