Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 882 (PAT)

Mukesh Chaudhary v. State of Bihar

2013-07-26

ASHWANI KUMAR SINGH, R.M.DOSHIT

body2013
ORDER (Per: HONOURABLE THE CHIEF JUSTICE) Nobody is present on behalf of the respondent nos. 5 and 6. 2. This Appeal preferred by the writ petitioner under Clause 10 of the Letters Patent arises from the judgment and order dated 13th September 2010 made by the learned single Judge in CWJC No. 5192 of 2004. 3. The matter at dispute is the transfer of land Khata no. 13, Khesra no. 32 admeasuring 4.75 decimal situated at Village - Rampur Dumari, P.S. – Hajipur Sadar, District – Vaishali. The respondent no. 6, the owner of the aforesaid land, sold the land under a sale deed dated 28th February 2002 to the appellant. The respondent no. 5 lodged claim for pre-emption under Section 16(3) of the Bihar Land Ceiling Act, 1961 (hereinafter referred to as “the Act”). According to the respondent no. 5, he was a co-sharer and an adjoining raiyat. The adjoining land Khesra no.33 was purchased by him in 1987 and that he had right to pre-emption as envisaged by Section 16(3) of the Act. 4. The claim was opposed by the appellant, the purchaser. According to the appellant, the land belonged to a common ancestor and the appellant was also a co-sharer. The appellant also challenged the claim of the respondent no. 5 of being an adjoining raiyat. According to the appellant, purchase of the land Plot no. 33 by the respondent no.5 by the pre-emptor in 1987 was contrary to law and was non-est in the eye of law. 5. The Deputy Collector, Land Reforms, Hajipur, under his order dated 18th June 2002, recorded a finding that the pre-emptor - respondent no.5 was a co-sharer and an adjoining raiyat and allowed the claim of pre-emption made by the respondent no.5. The said order was confirmed on 16th June 2003 in appeal before the District Collector, Vaishali and was further confirmed by the Board of Revenue on 19th February 2004 and by the learned single Judge. Therefore, this Appeal. 6. Learned advocate Mr. Ujjawal Kumar Sinha has appeared for the appellant. He has relied upon the genealogy produced at Annexure-6 to the Writ Petition. He has vehemently submitted that right from the inception the appellant purchaser had taken the plea of being a co-sharer in the land. The said plea has not been considered and decided by any of the authorities below or by the learned single Judge. He has relied upon the genealogy produced at Annexure-6 to the Writ Petition. He has vehemently submitted that right from the inception the appellant purchaser had taken the plea of being a co-sharer in the land. The said plea has not been considered and decided by any of the authorities below or by the learned single Judge. He has relied upon the judgment of this Court in the matter of Rudal Singh & Ors vs. The Additional Member, Board of Revenue, Patna & Ors. [ 1998(2) PLJR 497 ] and has submitted that once the plea has been raised by the purchaser of being a co-sharer or an adjoining raiyat, the authority below was enjoined to consider and decide the same and give its finding. 7. Although the appellant has not produced the pleadings before us, on perusal of the order of Deputy Collector, Land Reforms it is evident that the appellant did take the plea of being a co-sharer in the land. The Deputy Collector, Land Reforms has not given attention to the said plea nor has he recorded a finding in respect of the said plea. Same is true for the appellate authority and the Board of Revenue. 8. We do agree with Mr. Ujjawal Kumar Sinha that the plea raised by the appellant ought to have been considered and decided by the authority below. The authority below having not recorded its finding, the order is vitiated. 9. For the aforesaid reason, we allow this Appeal. The impugned judgment and order dated 13th September 2010 made by the learned single Judge in CWJC No. 5192 of 2004 is set aside. CWJC No. 5192 of 2004 is allowed. The impugned orders of the authorities below arising from Land Ceiling Case No. 52/2001-02 filed before the Deputy Collector of Land Reforms, Hajipur are quashed and set aside. 10. Land Ceiling Case No. 52/2001-02 arising from the right to pre-emption claimed by the respondent no.5 is revived and remitted to the Deputy Collector, Land Reforms, Hajipur, Vaishali. Deputy Collector, Land Reforms, Hajipur, Vaishali will hear and decide the aforesaid Land Ceiling Case No. 52/2001-02 afresh after hearing the parties and will record finding on the plea raised by the parties. 11. It is clarified that the parties to the proceeding will not be allowed to raise fresh plea or lead fresh evidence. Deputy Collector, Land Reforms, Hajipur, Vaishali will hear and decide the aforesaid Land Ceiling Case No. 52/2001-02 afresh after hearing the parties and will record finding on the plea raised by the parties. 11. It is clarified that the parties to the proceeding will not be allowed to raise fresh plea or lead fresh evidence. Matter will be decided on the pleadings and the evidence already before the Deputy Collector of Land Reforms.