Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1541 (PAT)

Vishram Tiwari v. State of Bihar

2012-11-07

CHAKRADHARI SHARAN SINGH

body2012
JUDGMENT 1. Heard Mr. Sandeep Kumar learned counsel for the Petitioner, Mr. Vidya Sagar, learned counsel for contesting Respondents No.5 to 9 and Mrs. Abhanjalli, learned A.C. to G.P. 16. In spite of valid service of notice, there is no representation on behalf of substituted Respondent Nos. 10(i) t9 10(iv). 2. In the present application under Article 226 of the Constitution of India, the challenge is to the order dated 29.1.1981 (Annexure-2) passed by Land Reforms Deputy Collector, Sadar Ara in Ceiling 16(3) Case No. 19/80-81 and the order dated 9.5.1989 (Annexure-3) passed by the Additional Collector, Bhojpur, Ara in Pre-emption Appeal No. 76/80-81 as also the Revisional Order dated 18.9.1989 (Annexure-5) passed by the Member Board of Revenue in Case No. 356 of 1989. The writ petition was filed by Kesho Tiwary, the pre-emptor, who, upon his death during the pendency of the present proceeding, has been substituted by his son Vishram Tiwary. Taking into account the fact that during the pendency of this writ application, the petitioner and some of the respondents died and were duly substituted by their legal heirs, the parties, in the judgment have been described as the pre-emptor, vendor and purchasers, as the case may be, which expression would mean such parties in the present application and their successor-in-interest duly substituted herein. 3. The pre-emptor claimed to be adjoining Raiyat as well as co-sharer of Basudeo Tiwari (Respondent No. 10, the Vendor) being his full-brother. Respondent No. 10 died issueless during the pendency of the writ petition and has been substituted by his legal heirs as Respondent Nos. 10(i) to 10(iv) to this application. The Vendor is said to have transferred the land in question admeasuring 58 acres being piece and parcel of Revisional Survey Plot Nos. 16, 148, 168, 267, 280 and 339 under Khata No. 24 of Mauza Mangitpur, Police Station-Jagdishpur, District-Bhojpur through the registered sale deed in favour of the purchasers (Original Respondents No.5 to 9) on 16.7.1980. As per pleadings in the writ application, Chak Khesra No. 42 under Chak khata No. 24 was made from these plots of land. It has further been stated that the entire Chak Khata No. 24 and Chak Khesra No. 42 stood in the joint names of the Vendor and his full-brothers including the preemptor. 4. As per pleadings in the writ application, Chak Khesra No. 42 under Chak khata No. 24 was made from these plots of land. It has further been stated that the entire Chak Khata No. 24 and Chak Khesra No. 42 stood in the joint names of the Vendor and his full-brothers including the preemptor. 4. The petitioner claiming preferential right of pre-emption tiled an application under Section 16(3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, (hereinafter referred to as 'the "Act"), on 9.8.1980 complying with the requirements under Section 16(3). By an order dated 29.1.1981 (Annexure-2), the said application was rejected by learned Deputy Collector Land Reforms, Sadar Ara. The appeal filed against the said order was also dismissed by learned Additional Collector, Bhojpur, Ara vide his order dated 9.5.1989 (Annexure-3). The petitioner preferred a revision application before the Board of Revenue vide No. 356 of 1989 against the aforesaid two orders. It is to be noted that Section 32 of the Act provides that a revision shall lie to the Board of Revenue against any appellate order passed by a Collector or a Commissioner within 30 days of such order. Admittedly, the revision application filed on behalf of the petitioner before the Board of Revenue was beyond the period of limitation prescribed under Section 32 of the Act. There is specific pleading in the writ application that the petitioner had filed the said revision application alongwith an application for condoning the delay in filing the same. 5. The Member Board of Revenue dismissed the revision application as barred by limitation, having been filed beyond the period prescribed under Section 32 of the. Act. There is no consideration of the petitioner's application for condonation of delay in approaching the Board of Revenue against the appellate order. 6. After having heard learned counsel for the parties, I am of the view that though there is no specific recital in the Act itself as regards the power of Member, Board of Revenue to condone the, delay, the Board of Revenue has jurisdiction to condone the delay in view of the judgment of this Court reported in 1991 (1) BLJ 290 , Paragraphs 2 and 3 of which are being quoted hereinbelow:- "2. Case No. 90 of 1989 which was filed before Additional Member, Board of Revenue under Section 32 of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act was dismissed by order dated 25.5.1989 on the ground that the application was filed much beyond the period of limitation. The order also indicates that learned Additional Member, Board of Revenue refused to condone the delay on the ground that he has no jurisdiction as decided in Bhuneshwar's case (supra). 3. The Supreme Court in Civil Appeal No. 439 of 1987 has said that Section 29 of the Limitation Act applies to a case of land reforms, in the facts and circumstances of the case, and has directed to consider as to whether the delay in filing the proceeding should be condoned, that means the Supreme Court did not agree with the decision in Bhuneshwar's case (supra). The result therefore. is that the Board of Revenue has jurisdiction to condone the delay in a case arising out of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act. We accordingly quash Annexure-3 and remit the case to it and direct that in case limitation petition is filed within a month from today then the same should be considered in accordance with law." 7. Because of refusal to entertain the revision application by Member, Board of Revenue, the Petitioner lost his a very valuable statutory right under the Act to cogitate his grievance before the Board of Revenue which is a final Court of fact in any proceeding under the Ceiling Act. The Board of Revenue should not have rejected the revision application without considering the limitation application. 8. In such view of the matter, the order dated 18.9.1989 passed by learned Member Board of Revenue in Case No.356 of 1989 as contained in Annexure-5 to this application is quashed. The matter is remitted back to the Member, Board of Revenue, Bihar to consider the revision application alongwith the application for condonation of delay in filing the same. Taking into account the fact that this is a very old matter initiated in the year 1980, I direct the Member, Board of Revenue (Respondent No.2) to dispose of the revision application as expeditiously as possible and in any case within a period of one year from the date of production of copy of this order. 9. Taking into account the fact that this is a very old matter initiated in the year 1980, I direct the Member, Board of Revenue (Respondent No.2) to dispose of the revision application as expeditiously as possible and in any case within a period of one year from the date of production of copy of this order. 9. This application is accordingly allowed to the extent as indicated above.