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2018 DIGILAW 110 (JHR)

Bhanu Mahto v. State Of Jharkhand

2018-01-12

RAJESH SHANKAR

body2018
ORDER Rajesh Shankar, J. - The present writ petition has been filed for quashing the order dated 31.07.2015, passed by the Additional Member, Board of Revenue, Jharkhand, in Case No. 05/2012 (Revenue Revision) whereby the learned Additional Member set aside the order dated 21.12.2011, passed in Land Ceiling Appeal No. 71 of 2003 by the Collector cum District Magistrate, Bokaro. 2. The factual background of the case as stated in the writ petition is that the land under Khata No. 188, Plot No. 2083 measuring area 15 decimals of village-Ranipokhar, PS Harla, District-Bokaro (hereinafter called the said land) was originally recorded in the name of the sons of Late Jhalu Mahto namely Chamu Mahto, Lakshaman Mahto, Mohari Mahto, Chhatu Mahto, Lalu Mahto and Devan Mahto. One of the recorded raiyats of Khata No. 188 namely Lalu Mahto died leaving behind two sons namely Balu Mahto and Bhadori Mahto. The respondent no. 4 purchased the said land from Moti Mahto s/o Late Ledo Mahto (father of the respondent no. 5) vide Registered Sale deed dated 10.06.2002 for consideration amount of Rs. 1,00,000/-. The petitioner came to know the transfer of the said land and then filed L.C Case No. 4 of 2001 before Land Reform Deputy Collector (respondent no. 3) against the respondent no. 4 under the provision of section 16(3)(1) of Bihar Land Reforms (fixation of Ceiling Area and Acquisition of Surplus land), Act 1961 (in short ''the Act, 1961'') claiming that he is the co-sharer of the vendor and holding land adjoining to the land transferred to respondent no. 5. The petitioner also deposited an amount of Rs. One Lakh equal to consideration amount together with 10% of the land value. The learned L.R.D.C Chas (respondent no. 3) dismissed the L.C. Case No. 4 of 2001 vide order dated 03.12.2002 on the ground that the land in question lies in urban area and as such no benefit under section 16(3)(1) of the Act, 1961 can be given to the petitioner. Aggrieved thereby, the petitioner preferred appeal being Miscellaneous (L.C) Appeal Case No. 71 of 2003 before the Collector cum District Magistrate, Bokaro (Respondent No 2) and the same was allowed vide order dated 21.12.2011, whereby the order of the respondent no. 3 was set aside. Thereafter, the respondent no. 4 filed Revenue Revision Case No. 5 of 2012 before the Member, Board of Revenue, Jharkhand at Ranchi (respondent no. 3 was set aside. Thereafter, the respondent no. 4 filed Revenue Revision Case No. 5 of 2012 before the Member, Board of Revenue, Jharkhand at Ranchi (respondent no. 1) which was allowed on 31.07.2015 setting aside the order dated 21.12.2011 passed by the respondent No. 2 by holding that the appellate court without any material or documentary evidence available on record straightway concluded that O.P No. 1 is the co-sharer and the adjoining raiyat of the land in dispute in this matter. 3. The learned counsel appearing on behalf of the petitioner submits that the Board of Revenue has wrongly held that land in question is homestead. The Board of Revenue has failed to appreciate the basic principle of law that the land in question was agriculture Don 1 and II land. It is further submitted that neither the Board of Revenue in the impugned order nor the respondent no. 5 in her pleading controverted the fact that the petitioner is an adjacent raiyat of northern boundary of the land in question. The impugned order has been passed on mere presumption and erroneous ground. It is further submitted that the appeal of the petitioner was dismissed for default vide order dated 27.09.2005 and the restoration application was also rejected on 31.01.2006. Thereafter, the petitioner filed writ petition being W.P.C No. 161 of 2006 and by order dated 05.04.2006, the matter was remanded to the respondent no. 2. 4. The learned counsel appearing on behalf of the respondent-State submits that the impugned order passed by the Board of Revenue is legal, justified and in accordance with law and the petitioner is not entitled for any relief as prayed. 5. The learned counsel appearing on behalf of the private respondent no. 4 submits that she (Nuni Bala Devi) purchased the land vide registered deed dated 10.06.2002 pertaining to plot no. 2083 of Khata No. 188 of Mouza Rani Pokhar measuring 15 decimals. 5. The learned counsel appearing on behalf of the private respondent no. 4 submits that she (Nuni Bala Devi) purchased the land vide registered deed dated 10.06.2002 pertaining to plot no. 2083 of Khata No. 188 of Mouza Rani Pokhar measuring 15 decimals. According to the provisions of section 16 (3) (1) of the Act, 1961 when any transfer of land is made after the commencement of the Act 1961 to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document, of transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed provided that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to 10% thereof is deposited in the prescribed manner within the said period. It is further submitted that the said land is a homestead land and several houses are situated surrounding the land in question. The petitioner had filed appeal before the Deputy Commissioner without any application for condonation of delay, even though there was delay in filing the appeal. It is further submitted that the appeal of the appellant was dismissed for default, however without any order of restoration, the case was heard and the said appeal was allowed. It is also submitted that the respondent no. 2 had erroneously allowed the appeal on the ground that the petitioner is a co-sharer of the vendor of the said land, though there was no evidence on record to suggest that the vendor of the present respondent comes under the genealogical table of the petitioner, it is further submitted that the right of pre-emotion is a weak right and in view of the finding of the fact that the land in question is a non-agriculture land, rather a homestead land, the order of the Board of Revenue does not require any interference. 6. Heard the iearned counsel appearing on behalf of the parties and perused the materials available on record. The land in question was purchased by the respondent no. 4 from the father of the respondent no. 6. Heard the iearned counsel appearing on behalf of the parties and perused the materials available on record. The land in question was purchased by the respondent no. 4 from the father of the respondent no. 5 and thereafter the petitioner filed a petition under section 16(3)(1) of the Act, 1961 claiming that he is the co-sharer and the adjoining raiyat of the said land and as such he is entitled to purchase the same. The respondent no. 3 dismissed the said petition of the petitioner mainly on the ground that the land in question is situated in an Urban Area to which the Act, 1961 has no application. The petitioner filed appeal before the respondent no. 2 being Misc. (L.C.) Appeal No. 48 of 2003 and vide order dated 28.01.2003, the same was remitted by the respondent no. 2 to the respondent no. 3 for examining as to under what circumstance the sale deed was registered in favour of the respondent no. 4, when the land was situated in the acquired area of the Government. Thereafter the matter was investigated and it was found that the land in question was situated only at a distance of 400 meters from the acquired area. Against the said order, the petitioner filed appeal being Misc. Appeal No. 71 of 2003 before the respondent no. 2 which was dismissed for default and in pursuance of the order of this court in passed W.RC No. 1681 of 2006, the matter was again heard and allowed by holding that the appellant is the co-sharer of the vended land and the land in question is an agriculture land. Thereafter the respondent no. 4 filed revision before the Board of Revenue, Jharkhand which was allowed vide impugned order dated 31.07.2015. 7. Before corning to the merit of the case of the petitioner, it seems appropriate to go through the legal principles governing the right of pre-emption, in the case of Indira Bai v. Nand Kishore, reported in (1990) 4 SCC 668 , the Hon''ble Supreme Court has held as under: - 5. Exception to this universal rule or its non-availability, is not due to absence of any provision in the Act excluding its operation but welfare of society or social and genera well-being. Exception to this universal rule or its non-availability, is not due to absence of any provision in the Act excluding its operation but welfare of society or social and genera well-being. Protection was, consequently, sought not on the rationale adopted by the High Court that in absence of notice under Section 8 of the Act estoppel could not arise but under cover of public policy. Reliance was placed on Shalimar Tar Products Ltd. v. H.C. Sharma a decision on waiver, and Equitable Life Assurance Society of the United States v. Reed, which laid down that there could be no estoppel against statute. Equity, usually, follows law. Therefore that which is statutorily illegal and void cannot be enforced by resorting to the rule of estoppel. Such extension of rule may be against public policy. What then is the nature of right conferred by Section 9 of the Act In Bishan Singh v. Khazan Singh this Court while approving the classic judgment of Mahmood, J. in Gobind Dayal v. Inayatullah, that the right of pre-emption was simply a right of substitution'' observed that, ''courts have not looked upon this right with great favour, presumably, for the reason that it operated as a clog on the right of the owner to alienate his property''. In Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi, this Court again while repelling the claim that the vendor and vendee by accepting price and transferring possession without registration of sale deed adopted subterfuge to defeat the right of preemption observed that, ''there were no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. To defeat the law of pre-emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre-emption by all lawful means''. Such being the nature of right it is harsh to claim that its extinction by conduct would amount to statutory illegality or would be opposed to public policy. The distinction between validity and illegality or the transaction being void is clear and well known. The former can be waived by express or implied agreement or conduct. But not the latter. Such being the nature of right it is harsh to claim that its extinction by conduct would amount to statutory illegality or would be opposed to public policy. The distinction between validity and illegality or the transaction being void is clear and well known. The former can be waived by express or implied agreement or conduct. But not the latter. The provision in the Act requiring a vendor to serve the notice on persons having right of pre-emption is condition of validity of transfer, and therefore a pre-emptor could waive it. Failure to serve notice as required under the Act does not render the sale made by vendor in favour of vendee ultra vires. The test to determine the nature of interest, namely, private or public is whether the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved. If the answer is later then it may be difficult to put estoppel as a defence. But if it is right of party alone then it is capable of being abnegated either in writing or by conduct. The Act does not provide that in case no notice is given the transaction shall be void. The objective is to intimate the pre-emptor who may be interested in getting himself substituted. The Act does not debar the pre-emptor from giving up this right. Rather in case of its non-exercise within two months, may be for the financial reasons, the right stands extinguished. It does not pass on to anyone. No social disturbance is caused. It settles in purchaser. Giving up such right, expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy. 8. The right of pre-emption is a weak right and thus the courts have considered the said right as a clog on the right of the owner to alienate his property. In the present case, the learned Member Board of Revenue after examining the fact has observed that in the spot enquiry it was found that the said land is "homestead" situated at a distance of only 400 meters from sector-IX, Bokaro Steel City and is within the Notified Area Committee. In the present case, the learned Member Board of Revenue after examining the fact has observed that in the spot enquiry it was found that the said land is "homestead" situated at a distance of only 400 meters from sector-IX, Bokaro Steel City and is within the Notified Area Committee. It has further been observed that though Bandhu Mahto (father of the petitioner) submitted the genealogical table, however, there is no reference of any relation with Moti Mahto (father of the respondent no. 5) who is the vendor of the land. The petitioner has failed to produce sufficient materials before the learned courts below to suggest that the petitioner was in the genealogy of the vendor and also the fact that the land is agricultural in nature. Since the right of pre-emption is a weak right, the burden was upon the petitioner to prove his case by adducing sufficient materials which he failed to do. Moreover, It is not also in dispute that the said land falls within the notified area. 9. In view of the aforesaid discussions, I do not find, any infirmity in the impugned order order dated 31.07.2015 passed by the Additional Member, Board of Revenue, Jharkhand, in Case No. Revenue Revision) 10. The writ petition being devoid of merit is accordingly dismissed.