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2013 DIGILAW 611 (PAT)

Chameli Devi v. State of Bihar

2013-05-13

AHSANUDDIN AMANULLAH, S.N.HUSSAIN

body2013
JUDGMENT (Per: HONOURABLE MR. JUSTICE S.N. HUSSAIN) 1. Heard learned counsel for the petitioners, learned counsel for the State of Bihar as well as learned counsel for the private respondent nos. 11 and 12. No one appears on behalf of the other respondents although notices had been validly served upon them and the name of their counsel is appearing on the daily cause list and the case had been adjourned for today specially for their appearance. 2. I.A. No.5196 of 1999 has been filed on behalf of the appellants for condoning 23 days delay in filing of the Letters Patent Appeal. Considering the averments made by learned counsel for the appellants as well as considering the fact that this appeal has already been admitted for hearing, this interlocutory application is allowed and delay in filing of the Letters Patent Appeal is condoned. 3. This Letters Patent Appeal has been filed by the purchasers (petitioners) challenging order dated 22.02.1999 passed by the learned Single Judge dismissing C.W.J.C. No.7210 of 1997 filed by the petitioners although it had been found in that order that the order of Additional Collector, which was in favour of the appellants, appeared to be justified. 4. This case has chequered history as the petitioners had purchased the land in question from its original owner, whereafter the private respondents filed Ceiling Case No.13 of 1980-81 under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as “the Act” for the sake of brevity) claiming to be the pre-emptors, being adjacent raiyats. 5. The claim of pre-emptors was rejected by the Deputy Collector Land Reforms (hereinafter referred to as “the D.C.L.R.” for the sake of brevity), Muzaffarpur West vide order dated 14.10.1981. Against the said order the pre-emptors filed Ceiling Appeal No.40 of 1981-82, whereafter the Collector, Muzaffarpur vide his order dated 18.01.1984 remanded the matter to the D.C.L.R. after setting aside his impugned order. Thereafter D.C.L.R. again considered Ceiling Case No.13 of 1980-81 and finally allowed the claim of pre-emptors vide order dated 12.08.1986. Against the said order the pre-emptors filed Ceiling Appeal No.40 of 1981-82, whereafter the Collector, Muzaffarpur vide his order dated 18.01.1984 remanded the matter to the D.C.L.R. after setting aside his impugned order. Thereafter D.C.L.R. again considered Ceiling Case No.13 of 1980-81 and finally allowed the claim of pre-emptors vide order dated 12.08.1986. Against the order of D.C.L.R., petitioners (purchasers) filed Ceiling Appeal No.05 of 1986 which after due consideration was allowed by the Additional Collector, Muzaffarpur vide order dated 22.03.1993 setting aside order of the D.C.L.R. The pre-emptors challenged the order of Additional Collector in Revision Case No.278 of 1993 before the Board of Revenue and the Additional Member, Board of Revenue vide order dated 29.03.1997 allowed the revision of pre-emptors and set aside the order of Additional Collector which was in favour of purchasers ( writ petitioners). 6. The purchasers being aggrieved by the order of Additional Member, Board of Revenue filed C.W.J.C. No.7210 of 1997 which was heard by learned Single Judge, who dismissed the writ petition vide order dated 22.02.1999 after arriving at the following findings:- 4. “From the order of the Additional Member, Board of Revenue, it appears that the petitioners are not the raiyats to the vended land nor the land was recoded as homestead whereas, the claim of the preemptor to be adjoining raiyat was dismissed. The petitioners are basing their claim on the basis of certain construction made on the vended land after purchase. The Additional Member, Board of Revenue, set aside the order of the Additional Collector, holding that the claim of adjoining raiyat has to be examined on the basis of date of registration of the document. In this case, admittedly, whatever construction is claimed to be made, was done after purchase. 5. Therefore, in my view, the order of the Additional Collector appears justified. Accordingly, this writ application is dismissed.” 7. It transpires that against the aforesaid order the instant L.P.A. has been filed by the purchasers (writ petitioners) on various grounds, which have been vehemently contested by learned counsel for the respondent-authorities. 8. 5. Therefore, in my view, the order of the Additional Collector appears justified. Accordingly, this writ application is dismissed.” 7. It transpires that against the aforesaid order the instant L.P.A. has been filed by the purchasers (writ petitioners) on various grounds, which have been vehemently contested by learned counsel for the respondent-authorities. 8. Considering the arguments of learned counsel for the parties and the materials on record it is quite apparent that learned Additional Collector in his order dated 22.03.1993 passed in Ceiling Appeal No.05 of 1986 had specifically dealt with specific pleadings and materials on record and had found that the land in question was situated in a thickly populated area and some portion of the land in dispute was even used for commercial purposes including shop. In the said circumstances the aforesaid land would not come under the definition of section 2F of the Act. This aspect of the matter had been completely ignored by the authorities and they also did not consider the small size of the land in question which cannot be useful for any agricultural purpose and hence the purchasers had purchased it for residential purpose as was also clear from the deed of purchase. 9. The Additional Member, Board of Revenue while setting aside the order of Additional Collector passed in appeal, had merely relied upon the order of D.C.L.R. although there was nothing to show that the said aspect of the matter had ever been considered by the D.C.L.R. and if there was a bonafide doubt with respect thereto, the D.C.L.R. should have made a fresh inspection on the said point when it was remanded to him for the first time by the Collector. Furthermore, the Additional Member, Board of Revenue had merely assumed that the documents showed that the land was homestead but he had failed to consider as to whether the land in question was a homestead of a landholder ever used for agricultural purposes, which is the requirement of law and if the same is not proved, the provision of section 2F of the Act would not be attracted and the pre-emptors would not be entitled to raise any claim under section 16(3) of the Act. 10. In the said circumstances, the order of Additional Collector is legal and proper, whereas the order of Additional Member, Board of Review is not based on principles of law as detailed above. 10. In the said circumstances, the order of Additional Collector is legal and proper, whereas the order of Additional Member, Board of Review is not based on principles of law as detailed above. Hence, learned Single Judge was not justified in dismissing the writ petition filed by the purchasers and in affirming the claim of the pre-emptors. 11. Accordingly, this Letters Patent Appeal is allowed, the impugned order of learned Single Judge dated 22.02.1999 passed in C.W.J.C. No.7210 of 1997 is set aside, the order of Additional Member, Board of Revenue, Patna dated 29.03.1997 passed in Revision Case No.278 of 1993 is hereby quashed and the order of Additional Collector dated 22.03.1993 passed in Ceiling Appeal No.05 of 1986 is hereby affirmed.