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2007 DIGILAW 1370 (PAT)

Sarda Devi v. State Of Bihar

2007-08-17

J.N.BHATT

body2007
Judgment J.N.Bhatt, J. 1. Both these writ petitions under Articles 226 and 227 of the Constitution of India, raise common question, therefore, upon joint request, they are heard together and are being disposed of by this common judgment. 2. The first writ petition, being CWJC No. 566 of 1989, raises the challenge against the order, dated 22.12.1987, recorded by the Additional Member, Board of Revenue, Bihar, in Case No. 336 of 1985, whereby, the order of the Additional Collector, MuzaffarPLJR, dated 29.8.1985, in Appeal No. 49/9 of 1983-84, as well as, the order of the Deputy Collector, Land Reforms, West MuzaffarPLJR, dated 14.1.1984 in Case Nos. 5, 6, 7 of 1983, came to be confirmed. 3. Whereas, in the second writ petition, being CWJC No. 6973 of 1988, the challenge is against the order dated 22.12.1987, by the Additional Member, Board of Revenue, Bihar, passed in Case No. 335 of 1985, whereby and whereunder, the order, dated 29.8.1985 passed by the Additional Collector, MuzaffarPLJR, in Appeal No. 48/8 of 1983-84, as well as, the order of the Deputy Collector, Land Reforms, West MuzaffarPLJR, dated 14.1,1984 came to be confirmed. 4. The disputed land in the first writ petition is relating to transfer of 11 decimals of land from S.R No. 918 by Champa Devi in the name of Ram Ballam Sah, by registered sale deed, which came to be registered on 11.1.1983. Ram Ballam Sah, PLJRchaser of the property gifted his part of the land to his sister, petitioner Sharda Devi, on 1.2.1983. Thereafter, 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 ("Act of 1961"), in respect of the said disputed land, claiming to be the raiyat, was filed by respondent no. 5, on 28.2.1983, which was challenged by the petitioner on the basis of the gift deed contending that once a valid gift is executed, prior to the filing of the pre-emption application, under sec. 16(3) of the Act of 1961, the claim for pre-emption is not maintainable. It is further the case of the petitioner that claim of pre-emption can be defeated by a valid bona fide deed of the original transferee, prior to the filing of application for pre-emption. 5. The petitioner raised objection and challenged the claim of pre-emption, firstly, before the Deputy Collector, Land Reforms, West Muzaffarpur, unsuccessfully. It is further the case of the petitioner that claim of pre-emption can be defeated by a valid bona fide deed of the original transferee, prior to the filing of application for pre-emption. 5. The petitioner raised objection and challenged the claim of pre-emption, firstly, before the Deputy Collector, Land Reforms, West Muzaffarpur, unsuccessfully. She further challenged it by filing an appeal before the Additional Collector, Muzaffarpur but did not succeed. Thereafter, the petitioner moved before the Additional Member, Board of Revenue. There also she failed. Therefore, the three authorities below, namely, (i) Deputy Collector, Land Reforms, (ii) Additional Collector, and (iii) the Member, Board of Revenue, concurrently, rejected the claim based on gift, finding that the gift by the transferee who is the father and brother, respectively, of the petitioner is an attempt to defeat the claim of pre-emption which has led to filing of the writ application under Article 226 of the Constitution of India, being CWJC No. 566 of 1989. 6. In the second writ petition, the disputed land measuring 11 decimals land of plot no. 918 by Champa Devi, came to be transferred by sale deed dated 8.11.1982 in favour of Jaddu Sah, which sale was completed by registration of. the "document on 11.1.1983. The pre-emption application also came to be filed oh 28.2.1983 by respondent no. 5. The claim of pre-emption made under sub-section (3) of Sec. 16 of the Act of 1961 came to be seriously contested by the petitioner in respect of this part of the disputed land on the basis of the gift prior to filing of an application for pre-emption. 7. Same thing happened as in the first writ petition by the three authorities below holding concurrently against the petitioner and, therefore,, this petition under Article 226 of the Constitution of India before this Court. 8. It could very well be seen from the aforesaid factual profile that parties are virtually common and common questions are involved excepting that the land is different parts of plot no. 918 measuring 11 decimals, each. 9. The learned counsel for the parties have addressed this Court. They have also taken this Court through excursion of the relevant material, documentary evidence, as well as, three impugned orders in each of the petitions. 10. 918 measuring 11 decimals, each. 9. The learned counsel for the parties have addressed this Court. They have also taken this Court through excursion of the relevant material, documentary evidence, as well as, three impugned orders in each of the petitions. 10. The learned counsel for the petitioner has submitted, firstly, that a valid deed gift was executed by the father and brother in favour of Smt. Sharda Devi, petitioner in both the petition and, therefore, the claim for pre-emption raised by the respondent no. 5 in both the petition under sub-section (3) of Sec. 16 of the Act of 1961 is not maintainable. It is further submitted that the authorities below have, in clear terms, held that the gift deeds had been executed to defeat the claim as they are sham and fraudulent. In that, .it is further submitted that there is no any evidence to hold that the two gift deeds are sham and fraudulent. 11. In support of the contention, learned counsel for the petitioner has placed reliance on the following decisions: (i) Smt. Priyambada Devi and another vs. The Additional Member, Board of Revenue, Bihar, Patna and Others, 1985 PLJR 662; and (ii) Dhanik Lai Mahto & Ors. vs. The Additional Member, Board of Revenue & Ors., 1985 BBCJ 597 . 12. Learned counsel for the respond-, eht no. 5, pre-emptor, has countered the submissions and placed reliance on the decision in the case of Sheo Kumar Yadav & Ors. vs. The Additional Member, Board of Revenue, Bihar & Ors., 1983 BBCJ 552 . 13. The aforesaid submissions are considered and evaluated, as well as, the case law relied on has been examined and taken into account in the light of the factual profile on record. 14. Prima facie, the submission raised on behalf of the petitioner that the preemptor has no right to claim pre-emption in view of the gift deeds which came to be executed prior to making an application under sec. 16(3) of the Act of 1961 does not appear to have any merit. Sec. 16 of the Act of 1961 envisages statutory provisions with regard to restriction on future acquisition by transfer etc. in Chapter IV of the Act of 1961. Subsection (3) of Sec. 16 of the Act of 1961 provides for a claim of pre-emption in respect of transferred land. Sec. 16 of the Act of 1961 envisages statutory provisions with regard to restriction on future acquisition by transfer etc. in Chapter IV of the Act of 1961. Subsection (3) of Sec. 16 of the Act of 1961 provides for a claim of pre-emption in respect of transferred land. It is, therefore, necessary to refer to the said provisions, as hereunder: "16. Restriction on future acquisition by transfer etc.(1) No person shall, after the commencement of this Act, either by himself or through any other person, acquire or possess by transfer, exchange, lease, mortgage, agreement or settlement any land which together with the land, if any, altered held by him exceeds in the aggregate of the ceiling area. X X X X X X X (3) (i) When any transfer of land is made after the commencement of the Act to any person other than a cosharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document, of the transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed: Provided that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten per cent thereof is deposited in the prescribed manner within the said period. (ii) On such deposit being made the co-sharer or the raiyat shall be entitled to be put in possession of the land irrespective of the fact that the application under clause (i) is pending for decision: Provided that where the application is rejected, the co-sharer or the raiyat as the case may be, shall be evicted from the land and possession thereof shall be restored to the transferee and the transferee shall be entitled to be paid a sum equal to ten per cent of the purchase money out of the deposit made under clause (i). (iii) If the application is allowed, the Collector shall by an order direct the transferee to convey the land in favour of the applicant by executing and registering a document of transfer within a period to be specified in the order and, if he neglects or refuses to comply with the direction, the procedure prescribed in Order 21, rule 34 of the Code of Civil Procedure, 1908 (V of 1908), shall be, so far as may be followed." 15. It could very well be seen that the right of pre-emption provided under Sec. 16(3)(i) of the Act is circumscribed by certain conditions. The observations of such conditions is no longer in dispute. The dispute revolves round as to whether the two gift deeds in respect of the same area, namely, 11 decimals executed by the father Yadu and his son and Ramballam Sah in favour of the sister Smt.Sharda Devi, the petitioner, within the period of two months, after the execution of the sale deed in their favour by Champa Devi could be said to be a valid legal impediment in the right of pre-emption claimed by respondent no-. 5 under sub-section (3) of Sec. 16 of the Act of 1961. 16. In this regard the revenue authorities have held against the petitioner consistently and in favour of respondent no. 5 granting the right of pre-emption. 17. The petitioner Smt. Sharda Devi is the daughter and sister of the donors. The gift deed was presented on 1.2.1983 and it was registered on 6.4.1983, whereas, the pre-emption application was made on 28.2.1983. The second gift deed is alleged to have been made on 8.11.1982, which was transferred by way of gift to the petitioner by the father and brother by executing gift dated 1.2.1983. 18. The revenue authorities have examined the gift deed and recorded a finding that the properties, i.e. lands, were gifted for constructing a house by the donees. Before the revenue authority, the petitioner claimed the gift deeds to be genuine. The revenue authorities have found that the pre-emptor is entitled to claim pre-emption as the execution of the gift deeds by father and brother in favour of the daughter and sister was with a view to defeat the claim of the pre-emptor. It is true, the pre-emptor is a co-sharer of vendor Champa Devi whose husband late Basudeo Narain was full brother of Kamaldeo Narain. It is true, the pre-emptor is a co-sharer of vendor Champa Devi whose husband late Basudeo Narain was full brother of Kamaldeo Narain. He has been found to be an adjoining raiyat and he also became owner of the half of the disputed plot no. 918. It was contended before the appellate and revisional authorities that the finding of the DCLR, the first revenue authority that gifts are sham and made with mala fide intention is not borne out from the evidence, as no evidence is led. This submission against the record of the present case and concurrent finding of facts of the three authorities is not recognizable and acceptable in a writ petition. 19. Let it be mentioned that the jurisdictional scope of the writ court under Article 226 of the Constitution of India is very much circumscribed. The writ court cannot be converted into an appellate forum. The main anxiety of the Court while entertaining a petition under Article 226 of the Constitution of India is to see that the questioned order or challenged decision is reached by any extraneous considerations or without evidence or without authority of the decision making body. The quality of the decision is not material. It is the decision making process which is important to be examined. Finding of fact recorded by three courts could not be shown to be perverse and unreasonable, requiring interference by this Court in exercise of its power under Article 226 of the Constitution of India. The two decisions which have been relied upon are examined by this Court. They are not applicable to the facts of the present case. 20. In the result, both the writ petitions are found to be without any substance and are required to be rejected. Accordingly, they shall stand rejected. No costs.