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2007 DIGILAW 1279 (PAT)

Mohammad Mustafa v. State Of Bihar

2007-08-03

J.N.BHATT

body2007
Judgment J.N.Bhatt, J. 1. The short interesting question, which has come to the surface in this writ petition under Article 226 of the Constitution of India is as to whether the right or claim of pre-emption of respondent nos. 5 to 8 granted by the three revenue authorities against the petitioners, who are purchasers (vendees) of the disputed land from the vendor (respondent no. 9), is justified, legal, valid or not? 2. The petitioners are the original vendees in respect of the property bearing Plot No. 133 (portion) under Khata No. 8, Area 7 kathas and 5 dhurs situated in village Mainidih under Police Station Kateya, District Gopalganj. The sale deed, dated 7.5.1985, was executed by the original landowner (respondent no. 9) for a consideration of Rs. 5000/-. The petitioners are co-sharers, as well as, adjoining raiyats on the western boundary of the disputed plot. The respondent nos. 5 to 8 had filed an application for pre-emption under Sec. 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act) after depositing the consideration amount and 10% thereon before the Deputy Collector Land Reforms (DCLR), Gopalganj (respondent no. 4) under L.C. Case no. 32/1985-86 for reconveyance of the said purchased land to them under the provisions of the Act on the ground that they are adjoining raiyats of the said plot because of possession of 14 Kathas of land bearing Plot No. 133 on the north side. They also claim that the petitioners are not entitled to any interest in the land during the lifetime of their father under Mohammadan Law and, hence, they are not adjoining raiyats of the disputed plot. 3. The Deputy Collector Reforms (respondent no. 4), Gopalganj, upon consideration of the facts and circumstances held in favour of the respondent nos. 5 to 8 and granted the claim and benefit of pre-emption under Sec. 16(3) of the Act by an order, dated 1.7.1987, in. L.C. Case No. 32 of 1985-86 which was challenged by the petitioners by filing an appeal, being L. C. Appeal No. 13 of 1987, before the Collector, Gopalganj (respondent no. 3), unsuccessfully. The petitioners, thereafter, challenged it by filing a revision, being Revision Case No. 228 of 1987, before the Member Board of Revenue, Bihar, at Patna, but the revision came to be dismissed on 9.9.1988. 3), unsuccessfully. The petitioners, thereafter, challenged it by filing a revision, being Revision Case No. 228 of 1987, before the Member Board of Revenue, Bihar, at Patna, but the revision came to be dismissed on 9.9.1988. Therefore, the petitioners have invoked the constitutional writ jurisdiction under Article 226 of the Constitution of India. 4. The learned Counsel appearing for the parties have been heard. The factual profile emerged from the record has been examined and considered. The relevant propositions of law are, also, evaluated. The impugned orders of the three revenue authorities are, also, examined. 5. The learned Counsel for the petitioners has, firstly raised the contention that the orders of the revenue authorities are illegal, unjust and perverse, mainly, on the premise that while passing the orders the reliance has been placed on a decision of the Full Bench (three-Judge Bench) rendered in Imamul Hassan Choudhary vs. State of Bihar & Ors., AIR 1982 Patna 89 [: 1982 PLJR 321] which has been overruled by the decision of the Larger Bench (five-Judge Bench) rendered in State of Bihar vs. K.M. Zuberi, AIR 1986 Patna 166 [: 1986 PLJR 67 ]. 6. Both these judgments are considered and examined and the submissions of the learned Counsel for the petitioners appear to be fully justified. 7. The Full Bench (five-Judge Bench) upon finding the decision laid down by the first Full Bench (three-Judge Bench) not to be the correct law held that the personal law applicable to the family is not to be taken into consideration for the determination of its holding under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, after the insertion of Clause (ee) and Explanation II in Sec. 2 of the said Act. It was, also, held that if the major sons of a family governed by the Mitakshara School of Hindu Law are entitled to a separate unit under the Act then the major sons of a family governed by the Mohammadan Law are, equally, entitled to the same and, thus, the earlier view expounded by the three-Judge Bench in Imamul Hassan Choudhary (supra) came to be reversed. 8. In Imamul Hassan Choudharys case (supra) it has been held that for becoming a raiyat the persons concerned must have a right to hold the land for the purposes of cultivation. 8. In Imamul Hassan Choudharys case (supra) it has been held that for becoming a raiyat the persons concerned must have a right to hold the land for the purposes of cultivation. Unlike Hindu Law, estate of a deceased Mohammadan if he has died intestate, devolves on his heirs at the moment of his death. Under the Mohammadan Law, birth right is not recognised. The right of an heir apparent or presumptive comes into existence of the first time on the death of the ancestor, and he is not entitled until then to any interest in the property to which he would succeed as an heir if he survived the ancestor. It was further held that they acquire the right only in the event of the death of the father. Therefore, it cannot be said that a Muslim major son also becomes a landholder within the lifetime of his father within the meaning of this Act and constitutes a family as defined under Section 2(g) of the Act. The distinction was noticed by the framers of the law while inserting the explanation of the definition of the word "landholder" in Section 2(g) of the Act. A member of undivided Hindu family acquires a right by birth and becomes entitled to a share in the land. He is deemed to be a landholder for the purposes of the Act whether or not a partition has taken place before the commencement of this Act. 9. This aforesaid view came to be reversed by the Larger Bench (five-Judge Bench) in State of Bihars case (supra) holding that in determination of holding under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (12 of 1962), Ss. 2(ee) Explanation II (as amended in 1973 and 1976); 2(g) (as amended in 1982); 2(k) ; 4 (as amended in 1973 and 1982), the personal law of a family is not to be taken into consideration. It is further observed and held that even major sons of a family governed by the Mitakshara School of Hindu Law would be entitled to a separate unit. In short, the ratio propounded in Imamul Hassan Choudharys case (supra) (by three-Judge Bench) came to be overruled by the State of Bihars case (supra) (five-Judge Bench). 10. The three revenue authorities concurrently have held the finding of facts but here there is a question of law involved. In short, the ratio propounded in Imamul Hassan Choudharys case (supra) (by three-Judge Bench) came to be overruled by the State of Bihars case (supra) (five-Judge Bench). 10. The three revenue authorities concurrently have held the finding of facts but here there is a question of law involved. The three decisions of revenue authorities are void as the same have been passed after placing reliance on a law which has been held to be bad and overruled by a larger Bench (five-Judge Bench) of this Court. 11. Obviously, therefore, the decisions rendered by the Deputy Collector Land Reforms (respondent no. 4) in the impugned order is illegal, unjust and unreasonable and is, wrongly, confirmed in appeal and affirmed in the revision. Therefore, they are required to be quashed and set aside. 12. Consequently, the three impugned orders of the revenue authorities (Annexures 1, 2 & 3) are quashed and set aside and the cases are remitted back to the Deputy Collector Land Reforms, Gopalganj (respondent no. 4) for reconsideration and re-trial in the light of the aforesaid proposition of law, expeditiously, but not later than 5 months from the date of receipt of the order of this Court. 13. In the result, the petition shall stand allowed. Rule is made absolute.