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2007 DIGILAW 876 (PAT)

Krishna Kumar Singh v. State Of Bihar

2007-05-03

AFTAB ALAM

body2007
Judgment Aftab Alam, J. 1. Heard Mr. Arun Bihari Mathur, Senior Advocate appearing on behalf of the petitioners. No one appears for the private respondents. 2. This writ petition arises from a pre-emption proceeding under Section 16(3) of the Bihar Land Ceiling Act. 3. Petitioners 1 to 3 are the first purchasers against whom Sunder Thakur (who died during the pendency of this case and was substituted by his heirs) had made the claim of pre-emption in respect of the disputed land. Petitioner no. 4 is the second purchaser to whom a portion of the land forming the subject matter of the dispute was transferred by petitioners 1-3 prior to the filing of the pre-emption application. 4. The Deputy Collector Land Reforms by his order, dated 28.7.1986 rejected the claim of pre-emption without passing any order on the pre-emptors prayer for impleadment of petitioner no. 4. Against the order passed by the Deputy Collector Land Reforms, the pre-emptor took the matter before the Additional Collector, Land Reforms in Land Ceiling Appeal No. 283/86-87/47/86-87. The Additional Collector by order dated 10.2.1988 allowed the appeal, set aside the order of the Deputy Collector Land Reforms and remanded the matter to him with a direction to implead petitioner no. 4 in the proceeding and to decide the case afresh. The petitioners then filed separate revisions being Case Nos. 122 and 123 of 1986 before the Board of Revenue. The two revisions were dismissed, by a common order, dated 13.3.1989 by which the Additional Member of the Board declined to interfere with the order of remand passed by the Additional Collector. This writ petition is filed assailing the orders of the Board of Revenue and the Additional Collector. 5. At this stage, it would be apposite to take note of the relevant facts which are brief and without controversy. On 5.8.1985, respondent no. 6 transferred in favour of petitioners 1-3, 92 decimals out of the total area of 93 decimals from R.S. Plot Nos. 416, 456 and 1161 under khata no. 214 (corresponding to old plot nos. 295 to 298 under old khata no. 221) situate in village Musapur Bangra. P.S. Mufassil Samastipur in the district of Samastipur. The transfers were made under three sale deeds; sale deed no. 10023 was in respect of 50 decimals for a consideration of Rs. 23,000/-. Sale deed nos. 214 (corresponding to old plot nos. 295 to 298 under old khata no. 221) situate in village Musapur Bangra. P.S. Mufassil Samastipur in the district of Samastipur. The transfers were made under three sale deeds; sale deed no. 10023 was in respect of 50 decimals for a consideration of Rs. 23,000/-. Sale deed nos. 10024 and 10025 were in respect of 21 decimals each for consideration of Rs. 10,000/- under each sale deed. One decimal out of the total area of 93 decimals the Vendor (respondent no. 6) retained for himself. 6. Apart from the above, on the same date, the petitioners 1-3 also purchased 5 dhurs of land from R.S. Plot No. 351 from one Lal Bahadur Thakur, not a party to the proceeding at any stage. 7. On the same date, the petitioners executed an agreement to sell certain land in favour of petitioner no. 4. It is the case of petitioners 1-3 that they were short of money for making payment of Rs. 43,000/-to respondent no. 6 and the consideration money for the 5 dhurs to Lal Bahadur Thakur and in those circumstances, they took Rs. 10,000/- from petitioner no. 4 and executed the agreement to sell in her favour. 8. In pursuance of the agreement to sell, on 8.8.1985 petitioners 1-3 executed a sale deed in favour of petitioner no. 4 in respect of 5 dhurs from R. S. Plot No. 351 (that they had purchased from Lal Bahadur Thakur) and two kathas out of the 92 decimals (that they had purchased, from respondent no. 6). 9. The registration of the sale deed, dated 8.8.1985 was completed earlier on 7.10.1985 while the registration of the three sale deeds executed by respondent no. 6 in favour of petitioners 1-3 on 5.8.1985 was completed on 21.5.1985. 10. On completion of registration of the three sale deeds, the pre-emptor on 23.6.1986 filed a single application for preemption in respect of the 92 decimals that petitioners 1-3 had purchased from respondent no. 6. In his application, he impleaded only petitioners 1-3 as parties. In their show cause, petitioners 1-3 resisted the claim of pre-emption on a number of grounds. It was stated that a single application was not maintainable in respect of lands transferred under three sale deeds. It was also stated that part of the transferred land was already sold by petitioners 1-3 to petitioner no. In their show cause, petitioners 1-3 resisted the claim of pre-emption on a number of grounds. It was stated that a single application was not maintainable in respect of lands transferred under three sale deeds. It was also stated that part of the transferred land was already sold by petitioners 1-3 to petitioner no. 4 before the institution of the proceeding and hence, the claim was not maintainable in the absence of the second purchaser; it was further not maintainable in respect of only a part of the transferred land. On the above pleas being raised, the pre-emptor made an application for impleadment of petitioner no. 4 as a party to the proceeding. The Deputy Collector Land Reforms, however, disallowed the claim of preemption without passing any order for impleadment. In appeal as noted above, the order of the Deputy Collector Land Reforms was set aside and the matter was remanded with a direction to decide the proceeding afresh after impleading petitioner no. 4. The Revisional Court maintained the order passed by the Appellate authority. 11. Mr. Mathur submitted that the order of remand overlooks the legal position that the claim of pre-emption can never succeed even by impleadment of petitioner no. 4. He pointed out that by the second sale, petitioners 1-3 had transferred in favour of petitioner no. 4 not only a portion of the land forming the subject matter of the claim of pre-emption but also 5 dhurs from R.S. Plot No. 351 that they had purchased from one Lal Bahadur Thakur. A portion of the 92 decimals was thus not only alienated but it had also become part of another piece of land transferred under the same sale deed. There was no claim of pre-emption in respect of the 5 dhurs from Plot No. 351. Hence, the claim of pre-emption was bound to fail even with petitioner no. 4 as one of the parties to the proceeding. 12. In my view, the submissions made by Mr. Mathur have substance and are fit to be accepted. I, accordingly, set aside the impugned orders passed by the Additional Member, Board of Revenue and the Additional Collector, Samastipur. The result is that the order of the Deputy Collector Land Reforms is restored and the claim of pre-emption by the pre-emptor stands rejected. 13. This writ petition is allowed but with no order as to costs.