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2013 DIGILAW 85 (PAT)

Ishwar Yadav v. State of Bihar

2013-01-18

NAVIN SINHA, SHIVAJI PANDEY

body2013
ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) Heard learned counsel for the Appellant, State and Respondent Nos. 3 and 4 (hereinafter referred to as the private respondents). The present Appeal questions the order dated 31.03.2011 allowing C.W.J.C. No. 5130 of 2004 preferred by the private respondents. It sets aside the order passed by Member Board of Revenue in Revision Case No. 72 of 2003 preferred by the Appellant, affirming the order of the Sub-Divisional Authority in Land Ceiling 16 (3) Case No. 01 of 2002 and the appellate order dated 14.02.2003 passed by the Collector. Consequently, the claim of the Appellant for preemption has been rejected. The crux of the finding and the core issue involved is the nature of the land, whether it was agricultural or had changed its character to homestead by passage of time making the claim of preemption under Section 16(3) of the Lands Ceiling Act inapplicable. Learned counsel for the Appellant submitted that the lands were agricultural in nature. The private respondent no.4 was not a landless persons as he exchanged lands with private respondent no.3 inter se by two different sale deeds. The recitals in the sale deeds were themselves evidence for the agricultural nature of the lands when it was described as “Kaste Kaimi” and the vendee was given the right inter alia to “produce of the land”. These two recitals taken together were sufficient to identify the nature of the land as agricultural land. The Sub-Divisional Officer and the Collector arrived at a perverse finding without any materials that the nature of the land had changed. There was no discussion or analysis of the nature of evidence or facts available to arrive at this conclusion. The Revisional authority examined all records as mentioned in his order and came to the conclusion that the private respondents had failed to produce any evidence with regard to the fact that the nature of the lands had changed from agricultural to residential. The exchange of lands between the private respondents was itself evidence that private respondent no. 4 was not a landless person. The two subordinate authorities had not considered it necessary to obtain a site inspection report. The recitals in the sale deed were adequate evidence with regard to the agricultural nature of the land. The reasons were sufficient evidence of full application of mind. 4 was not a landless person. The two subordinate authorities had not considered it necessary to obtain a site inspection report. The recitals in the sale deed were adequate evidence with regard to the agricultural nature of the land. The reasons were sufficient evidence of full application of mind. It was for the private respondents to produce evidence before the Revisional authority with regard to the lands not being agricultural and having changed their character subsequently. The onus lay with the private respondents which they have failed to discharge. It was lastly submitted that even the fresh report dated 15.12.2010 called for by the writ court was not explicit with regard to the nature of the lands having changed so as to defeat the claim for preemption. The finding of the writ court that the nature of the land had changed or that private respondent no.4 was a landless person are therefore unsustainable. Reliance has been placed on 1970 PLJR 579 (Ram Chandra Srivastava v. Prasidh Narain Singh) (FB) at paragraph-10, 2004(2) PLJR 339 (Hiralal Chauhan v. The State of Bihar) (DB) at paragraph-8, and 1970 BLJR 1010 (Jugeshwar Singh v. Jainandan Prasad Singh) (DB) at paragraph-5. Counsel for the private respondents and the State have opposed the application submitting that the order of the writ court requires no interference on the findings of facts arrived at and that in any event pre emption was a weak right. At the outset, we consider it appropriate to notice that the present is the 5th forum where the litigation is being adjudicated. It shall therefore not be proper to allow the Appellant to raise issues not raised before the courts below. Even if they are questions of law, their applicability has to be tested on facts. Even questions of law which could have been raised at the first or second appellate forum, need very strong justification for being raised at the 5th forum especially when the right to preemption is a weak right. There can be no quarrel with the proposition laid down in Ram Chandra Srivastava (supra) that the claim for pre-emption has to be tested on facts as existing on the date that the application is made. There can be no quarrel with the proposition laid down in Ram Chandra Srivastava (supra) that the claim for pre-emption has to be tested on facts as existing on the date that the application is made. To our mind, for reasons to be discussed hereinafter, we do not consider it very relevant for the present purpose in view of the limited controversy in the present application and for the manner in which the parties went to Court on specified issues only. The question of law in Jugeshwar Singh (supra) that homestead land may also come under the provisions of Section 16(3) as also discussed in Hirala Chauhan (supra) were issues not raised at any of the earlier forums and we are not inclined to allow the same at this belated stage. The appellant filed an application for preemption on 6.04.2002 after the exchange deeds were executed between the private respondents on 26.03.2002. The private respondents took a specific defence before the Sub-Divisional Officer that the nature of the lands had changed. From the order of the Sub-Divisional Officer, we find no material that this fact was disputed on behalf of the appellant with counter materials. True it is that the order of the Sub-Divisional Officer is not detailed and considered. Yet, the conclusion has been arrived at based on the case put forth by the parties. If the appellant did not dispute the contention of the private respondents that the nature of the lands had undergone a change, we see no reason to doubt the findings of the Sub-Divisional Officer. In Appeal, the finding was affirmed. The recitals in the sale deed could not be conclusive with regard to what may have actually existed on the site and the manner in which the lands were being used. It does not appear from the order of the Collector that the appellant had raised any specific issue beyond the recitals of the sale deed by placing facts on the issue with regard to the change in the nature of the user of the land. It is not the case of the Appellant that the two Courts did not consider any materials. The Revisional authority upset the concurrent findings of the Sub-Divisional Officer and the Collector. It could not have upset the findings because they were not to its satisfaction. It is not the case of the Appellant that the two Courts did not consider any materials. The Revisional authority upset the concurrent findings of the Sub-Divisional Officer and the Collector. It could not have upset the findings because they were not to its satisfaction. If it was not satisfied with the findings of facts, it may have remanded the matter. But, if the Revisional authority were to arrive at a specific finding of fact to the contrary, there had to be independent application of mind by him to the facts of the case, consideration of the evidence available, followed by an analysis and reasoning to arrive at his own independent conclusion. Much has been argued about the nature of the cryptic order passed by the Sub-Divisional Officer and the Collector. We find that the order of the Revisional Court suffers from the same infirmity. A recital that the records had been produced is not sufficient explanation for the discussion and analysis which was required to form part of the order disclosing the thinking process and the reasoning for upsetting the two concurrent findings. Unfortunately, the Revisional authority misunderstood its role to hold that in absence of any evidence before him with regard to the change of the nature of usage it would be presumed to be agricultural land subverting the whole process of judicial reasoning and thinking. He was required to arrive at a finding to his own satisfaction why on basis of the materials on record he was satisfied that the lands were agricultural and had never changed their nature of usage to homestead. The writ court in the facts of the case exercised extra prudent caution by calling for a fresh report on facts submitted on 15.12.2010. We have perused the report. In no uncertain terms, it mentions the existence of a residential house on the disputed land with regard to the adjoining land, and that also homestead and Basgeet lands stood at 60 to 70 yards in the next sale deed. The lands were vacant and there was no standing crop. The writ court therefore arrived at the conclusion that the vended lands were fit for residential purpose. Much was argued on behalf of the appellant that the lands being fit for residential purpose and that they had changed their nature of usage to non agricultural were different facets. We are not impressed by the submission. The writ court therefore arrived at the conclusion that the vended lands were fit for residential purpose. Much was argued on behalf of the appellant that the lands being fit for residential purpose and that they had changed their nature of usage to non agricultural were different facets. We are not impressed by the submission. The origin of the controversy lay in the fact that the nature of the lands had already changed. The expression used by the writ court has to be understood and appreciated in that context. At the risk of repetition, we may clarify that with regard to the lands on Plot No. 105 which is the bone of contention in the pre-emption proceedings, the report dated 15.12.2010 manifests that there stood a residential house on the lands vended by private respondent no. 3 to respondent no. 4. The writ Court has further arrived at a finding of fact that private respondent no.4 was a landless person. If the pre-emption is to be allowed, private respondent no.4 would be unable to exchange lands with private respondent no.3 and thereby shall become landless himself. That is not the purpose of the Act. In conclusion, the view taken by the Sub-Divisional Officer affirmed by the Collector and upheld by the writ court, being based on the materials on record including call for a report for clarification, we are not inclined to interfere with the concurrent finding of facts by three courts that the nature of usage of the lands had changed. This conclusion of ours is fortified by the fact that the right of pre-emption is a weak right. Learned counsel for the appellant had forcefully tried to persuade us that if the order of the Sub-Divisional Officer, the Collector and the Revisional Court suffered from the same lacuna in the decision making process making it difficult to decipher the actual state of affairs as existed on the date that the preemption application was filed and the report had been called for by this Court nearly eight years later, the matter should be remanded. We are not inclined to do so giving a fresh lease of litigation based on a weak right when the conclusions which have been arrived at, applying the standards of reasonableness and prudence call for no interference. The Appeal is dismissed.