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2007 DIGILAW 818 (PAT)

Aruna Devi v. State Of Bihar

2007-04-23

AFTAB ALAM

body2007
Judgment AFTAB ALAM, J. 1. Heard Mr. Nawal Kishore Singh, Counsel for the petitioner. No one appears for the private respondents 5-9 or respondents 10-11. 2. This writ petition arises from a preemption proceeding under Sec. 16(3) of the Bihar La. 1 Ceiling Act. The petitioner is the purchaser of the disputed land and the matter has come to this Court in the second round after the Court earlier set aside the orders passed by the Revenue authorities and remanded the proceeding to the Deputy Collector Land Reforms. 3. The subject matter of the proceeding is a piece of land, 35 decimals in area, being part of plot no. 1883 under Khata No. 295 situate in village Kadamtar, P.S.- Silao in the district of Nalanda. In regard to the disputed land, on 28.8.1972 respondent no. 10 executed a sale deed in favour of the petitioner. After its registration was completed, respondents 5-9 filed a petition under Sec. 16(3) of the Act, claiming preemption on the plea that they were holding 37.1/2 decimals of land in the same plot being adjacent to the disputed piece of land. 4. On behalf of the petitioner, the claim of pre-emption raised by respondents 5-9 was raisted on two grounds. One, that the respondents were not adjoining raiyats and a small area of one and half decimal, intervening between the two blocks, was held and possessed by respondent no. 13. The other ground was that the claim of pre-emption was completely misconceived as the transfer of the land by respondent no. 10 in favour of the petitioner was not by way of sale but, as a matter of fact, it was a transaction in the nature of exchange of lands by the two sides. It was pointed out that on the same day, the petitioner had executed a sale deed in respect of 31 decimals of land of plot nos. 1893 and 1894 under Khata No. 295 in favour of the two minor sons of respondent no. 10. Since the transferees were minor they could not execute the return deed and, therefore, the other deed of conveyance in regard to the disputed land was executed by their father, respondent no. 10. It was further pointed out that though the two deeds of conveyance were drawn up as sale deeds, those in fact constituted a single transaction of exchange. Since the transferees were minor they could not execute the return deed and, therefore, the other deed of conveyance in regard to the disputed land was executed by their father, respondent no. 10. It was further pointed out that though the two deeds of conveyance were drawn up as sale deeds, those in fact constituted a single transaction of exchange. It was pointed out that in both the sale deeds, the consideration money was notionally shown as Rs. 1,000/- and in both the sale deeds it was stated that the consideration money would be paid at the stage of exchange of chirkut. 5. Mr. Singh laid great stress on the fact that in both the so-called sale deeds, the same consideration money was shown and that too were not paid by the transferees. He submitted that since the consideration money in both the so-called sale deeds were the same, in reality no money would exchange hands between the parties in any of the two transfers. 6. Mr. Singh further submitted that the Deputy Collector Land Reforms failed to appreciate that the transfer of the disputed land was not by way of sale but it was part of an exchange between the parties and allowed the claim of pre-emption raised by respondents 5-8. The appellate and the revisional authorities, namely, the Additional Collector and the Board of Revenue simply affirmed the order of the Deputy Collector Land Reforms. 7. The petitioner then came to this Court in CWJC No. 2317 of 1976 challenging the orders passed by the Revenue authorities. The Court appreciated the petitioners case, set aside the orders of the Revenue authorities and remitted the matter to the Deputy Collector Land Reforms with the express direction to examine whether the transfer in regard to which the claim of pre-emption was raised was in the nature of sale or it was a part of an exchange between the two sides. After remand, the Deputy Collector Land Reforms issued a notice to the petitioner who is a purdahnasheen lady. At that time, the petitioners husband was in jail in connection with some criminal case and in those circumstances the Deputy Collector Land Reforms passed an ex-parte order once again without appreciating the case of the petitioner. The Additional Collector once again affirmed the order passed by the Deputy Collector Land Reforms. At that time, the petitioners husband was in jail in connection with some criminal case and in those circumstances the Deputy Collector Land Reforms passed an ex-parte order once again without appreciating the case of the petitioner. The Additional Collector once again affirmed the order passed by the Deputy Collector Land Reforms. In the Board of Revenue, there was some confusion with regard to the date fixed in the matter and as result the petitioners revision was dismissed for default. The restoration petition was also not entertained by the Board. Hence, the petitioner is once again before this Court in this writ petition. 8. On hearing Counsel for the petitioner and on going through the materials on record, I am satisfied that the transfer of the disputed land in favour of the petitioner was not by way of sale but it was part of an exchange of lands between the two sides. It is well settled that the claim of preemption is not applicable in a case of exchange of lands. The claim of pre-emption was, therefore, wholly misconceived and untenable. The impugned orders passed by the Deputy Collector Land Reforms, the Additional Collector and the Board of Revenue are accordingly set aside. 9. In the result, this writ petition is allowed but with no order as to costs.