Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 993 (PAT)

Janardan Singh v. State of Bihar

2013-08-14

BIRENDRA PRASAD VERMA

body2013
ORDER Heard learned counsel for the petitioner, learned counsel appearing on behalf of the respondent no. 5 & 6 as also learned counsel appearing on behalf of the respondent no. 7 & 8. However, none has appeared on behalf of the respondent State of Bihar and its functionaries. 2. The petitioner has filed the present writ petition under Article 226 of the Constitution of India assailing the validity and correctness of the order dated 19.07.2002 (Annexure-4) passed analogously in Case No. 225 of 2001 and Case No. 226 of 2001 by the respondent Additional Member, Board of Revenue, Bihar, Patna, whereby while allowing the aforesaid two revision applications filed on behalf of the respondent no. 5 and 6, claim of pre-emption raised on behalf of the petitioner with respect to the vended plots, has been rejected after setting aside the order dated 02.07.2001/ 08.10.2001 (Annexure-3) passed by the respondent District Collector, Gaya in Land Ceiling Appeal Case No. 11 of 2000-01 and 12 of 2000-01. 3. It is admitted case of the parties that the present petition arises out of a proceeding under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (in short “Land Ceiling Act”). The petitioner is the pre-emptor, whereas respondent no. 5 and 6 are the purchasers. Respondent No. 8 is the vendor and respondent no. 7 happens to be father of respondent no. 8, who is said to have gifted the land in question to his daughter Asha Devi (Respondent no. 8). 4. It is also not in dispute that the respondent no. 8, being the rightful owner of the lands under dispute, executed two separate sale deeds dated 15.02.2000 in favour of respondent no. 5 and 6 transferring 20½ decimals of lands bearing plot no. 736 and 739 appertaining to khata no. 148, through each sale deeds, total area being 41 decimals. The petitioner, who is claiming to be the co-sharer of respondent no. 7 and boundary raiyat of the vended plots, filed two pre-emption cases under Section 16(3) of the Land Ceiling Act giving rise to Pre-emption Case No. 5 of 2000-01 and 6 of 2000-01. The claim of pre-emption raised on behalf of the petitioner with respect to vended plots was rejected by the respondent D.C.L.R., Gaya by two separate orders dated 01.08.2000/ 03.08.2000. The claim of pre-emption raised on behalf of the petitioner with respect to vended plots was rejected by the respondent D.C.L.R., Gaya by two separate orders dated 01.08.2000/ 03.08.2000. However, the petitioner has brought only one order on record as Annexure-2. The petitioner, being aggrieved by the aforesaid orders, filed two separate Land Ceiling Appeal Case No. 11 of 2000-01 and 12 of 2000-01, which were finally allowed by the respondent District Collector, Gaya by his order dated 02.07.2001/ 08.10.2001 (Annexure-3) and the order of the respondent D.C.L.R. was set aside. Thereafter, respondent no. 5 and 6, being aggrieved by the aforesaid appellate orders, preferred two separate ceiling revision cases before the Board of Revenue, Bihar, Patna giving rise to Case No. 225 of 2001 and 226 of 2001, which have been allowed by the impugned revisional order dated 19.07.2002 (Annexure-4) and thereby orders passed by the respondent District Collector, Gaya has been set aside and claim of pre-emption raised on behalf of the petitioner has been rejected. 5. Learned counsel for the petitioner submits that the petitioner is the co-sharer of respondent no. 7, who gifted his land to his daughter Asha Devi (respondent no.8), who is vendor of the impugned vended plots. He submits that the petitioner is also the boundary raiyat of the vended plots, therefore, against the two impugned sale deeds both dated 15.02.2000, the petitioner filed aforesaid two pre-emption cases. According to him, respondent D.C.L.R. has illegally rejected the claim of the petitioner. However, the claim of pre-emption was allowed by the respondent District Collector, Gaya by a reasoned and speaking order, but the same has been set aside by the revisional authority by a cryptic order. Therefore, it is submitted that the order impugned is not sustainable. 6. Learned counsel appearing on behalf of the respondent no. 5 and 6 as also learned counsel appearing on behalf of the respondent no. 7 and 8 have opposed the prayer and have jointly submitted that once respondent no. 7 had gifted his land to his daughter Asha Devi (respondent no. 8), then she became rightful owner of the gifted lands, who transferred the lands in question in favour of respondent no. 5 and 6. According to them, the petitioner cannot claim to be a co-sharer of respondent no. 8. It is further submitted by them that as a matter of fact, respondent no. 8), then she became rightful owner of the gifted lands, who transferred the lands in question in favour of respondent no. 5 and 6. According to them, the petitioner cannot claim to be a co-sharer of respondent no. 8. It is further submitted by them that as a matter of fact, respondent no. 8 made an offer to transfer the vended plot to the petitioner, but he refused to purchase the land in question on payment of reasonable consideration money. Therefore, according to them, negotiation regarding transfer of lands to the petitioner did not succeed. Ultimately, respondent no. 8 transferred the lands in question to the respondent no. 5 and 6 on payment of proper consideration money. It is next submitted by them that once the petitioner had refused to purchase the lands in question, he has lost his legal right to raise the claim of pre-emption with respect to the vended plots. 7. After having heard the parties and on consideration of the materials available on record, this Court finds that the respondent D.C.L.R. as also respondent Additional Member, Board of Revenue, Bihar, Patna have recorded concurrent finding of facts that despite offer made by respondent no. 8 to transfer the land in question to the petitioner on payment of reasonable and proper consideration money, he refused to purchase the land in question, therefore, he cannot be permitted to raise the claim of pre-emption once the transfer was made to the respondent no. 5 and 6. Admittedly, the respondent no. 8 was the rightful owner of the lands under dispute. If for any reason she wanted to transfer her lands, then she was entitled to receive the reasonable/ market price of the land. She could not have been compelled to sell her land in favour of the petitioner on a throw-away price. The scheme of pre-emption under Section 16(3) of the Land Ceiling Act does not contemplate that adjoining/ boundary raiyat or co-sharer of the vendor can compel the transferor to transfer his or her land at a throw-away price or at a price unreasonably fixed by the boundary raiyat or the co-sharer. In fact, while transferring the lands, owner is entitled to receive reasonable price or the prevalent market price. 8. From the materials available on record it appears that since the respondent no. In fact, while transferring the lands, owner is entitled to receive reasonable price or the prevalent market price. 8. From the materials available on record it appears that since the respondent no. 7 had gifted his land to his daughter-Asha Devi, and since the petitioner is claiming to be co-sharer of respondent no.7, he wanted to purchase the lands in question from the respondent no. 8 at a meager price, which was not acceptable to respondent no. 8, as a result of which despite offer made by respondent no. 8, negotiation for transfer of the lands in question to the petitioner did not succeed. The petitioner once had refused to purchase the lands in question on a reasonable/ market price, even if he is a boundary raiyat, cannot be permitted to raise the claim of pre-emption under Section 16(3) of the Land Ceiling Act. His claim of pre-emption with respect to the vended lands was rightly rejected by the respondent D.C.L.R, Gaya, which has been affirmed by the revisional authority by the impugned order dated 19.07.2002 (Annexure-4). 9. It is well established that the right of pre-emption is a weak right, which can be defeated by all legitimate means. The claim of pre-emption of the petitioner has rightly been rejected by the original authority and the revisional authority. The order passed by the appellate authority has rightly been set aside and reversed by the revisional authority. No case for interference is at all made out in the present case by this Court in exercise of its powers under Article 226 of the Constitution of India. 10. In the result, the writ petition has to fail and is, accordingly, dismissed. However, there shall be no order as to costs.