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2018 DIGILAW 475 (JHR)

Jai Shankar Vishwakarma v. State of Jharkhand

2018-02-23

ANUBHA RAWAT CHOUDHARY

body2018
ORDER : 1. Heard Mr. Birendra Kumar, learned counsel appearing for the petitioners, Mr. Ayush Aditya, learned counsel appearing on behalf of private respondent no. 5 and Mr. Radha Krishna Gupta, learned counsel appearing on behalf of respondent-state. 2. It is submitted by the counsel for the petitioners that the petitioners are members of hindu undivided family. Two properties were purchased by the petitioners bearing registered sale deed No. 589 of 2005 and 590 of 2005 both dated 31.03.2005 on account with which the respondent no. 5 had filed a pre-emption application which is the subject matter in these two writ petitions and accordingly both the writ petitions have been tagged and are to be heard together. WP (C) No. 7102 of 2011 relates to sale deed no 589 dated 31.03.2005 and WP (C) No. 7084 of 2011 relates to sale deed No. 590 of 2005. 3. These two writ petitions have been filed by filed by the petitioners challenging the order dated 22.10.2011 passed by the respondent no. 2 in Land Ceiling Revision Case Nos. 34/2009 and 33 of 2009. The petitioners have further challenged the two appellate orders both dated 19.09.2009 passed by the Respondent no 3 in Land Ceiling Appeal Nos. 05/2007-08 and 12/2007-08. The petitioners have also challenged the orders dated 12.01.2007 passed by the respondent no. 4 in Land Ceiling Case No. 1/2005-06 and 2/2005-06. The Land Ceiling Cases was instituted on the basis of application for pre-emption filed by the respondent no. 5 in relation to sale deed No. 589 of 2005 and sale deed no 590 of 2005 both dated 31.03.2005. 4. The brief facts as submitted by the counsel for the petitioners in relation to sale deed No. 589 of 2005 are as under:- (a) The specific case of the petitioners is that by virtue of registered sale deed no. 494 dated 18.4.2001, the father of the petitioners namely Dwarika Vishwakarma purchased the land of 20 decimals from the owner of the land namely Khobhari Singh Kushwaha and Lakshman Singh Kushwaha in Old Khata No. 38 (New Khata No. 104), Old Plot No. 79 (New Plot No. 318) with boundary. North : Nij. South : Shiv Sao and Murat Sao East : Mahesh Singh West : Tulsi Sao The sale-deed bearing no. 494 dated 18.04.2001 is at Annexure-1 to the writ petition bearing no. W.P.(C) No. 7102 of 2011. North : Nij. South : Shiv Sao and Murat Sao East : Mahesh Singh West : Tulsi Sao The sale-deed bearing no. 494 dated 18.04.2001 is at Annexure-1 to the writ petition bearing no. W.P.(C) No. 7102 of 2011. (b) In the year 2005, one of the boundary raiyats towards southern side of the property as contained in Sale-Deed No. 494 dated 18.04.2001 sold out 31 decimals of land in Khata No. 30 (New Khata No. 109), Plot No. 151(New Plot No. 315) to the petitioners by registered sale-deed no. 589 dated 31.03.2005 with the following boundary: North : Dwarika Vishwakarma South : Shiva Sao East : Basudeo Mishra & Raj Ballabh Singh West : Sitaram Master (c) The sale-deed dated 31.03.2005 bearing 589 clearly shows Dwarika Vishwarkarma to its North, which is on account of sale-deed no. 494 dated 18.04.2001, therefore, there was no dispute that the father of the petitioner namely, Dwarika Vishwarkarma who was the member of the joint family , was the adjoining raiyat of the property as contained in sale-deed no. 589 dated 31.03.2005 and accordingly the petitioners also have the status of the adjoining raiyat of the property covered under sale deed no 589 dated 31.03.2005 and accordingly the petitioners have rightly purchased the property and there has been no violation of section 16 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred as ‘aforesaid Act’). (d) The condition precedent for filing application under Section 16(3) of the aforesaid Act is that the transfer of land is made to any person other than the co-sharer of the vended property or to a person other than the adjoining raiyat of the vended property. Only if the said condition is satisfied the raiyat of the adjoining land or co-sharer of vended land will be entitled to the exercise the right of pre-emption. He submits that from the sale-deed no. 589 dated 31.03.2005, showed the name of the father of the petitioners towards the North of the vended property, therefore, no application under section 16(3) of the aforesaid Act could have been filed by the respondent no 5 against the petitioners. (e) However, an application for pre-emption was filed by respondent no. 5 wherein respondent no. 589 dated 31.03.2005, showed the name of the father of the petitioners towards the North of the vended property, therefore, no application under section 16(3) of the aforesaid Act could have been filed by the respondent no 5 against the petitioners. (e) However, an application for pre-emption was filed by respondent no. 5 wherein respondent no. 5 claimed to be adjoining raiyat and in the application for pre-emption itself the father of the petitioners has been shown towards the north. (f) However, the application for pre-emption was allowed by the original authority, against which the petitioners filed appeal which was dismissed and thereafter revision application was also dismissed. 5. The brief facts as submitted by the counsel for the petitioners in connection with sale deed No. 590 of 2005 are as under:- (a) Along with this particular property as contained in Sale Deed No. 589 of 2005, the petitioners purchased another property bearing sale deed No. 590 of 2005 from Shiva Sao whose name was mentioned at south of the sale deed no 589 of 2005. Boundary of the property purchased vide sale deed no 590 of 2005 was as under:- North : Pradeep Kr. Vishvakarma and ors. South : Niz. Shiva Sao East : Basudeo Mishra &Raj Ballabh Singh West : Sitaram Master (b) Name of Pradeep Vishvakarma was mentioned in sale deed No. 590 dated 31.03.2005 as on the same day, they had purchased northern portion of the property of adjoining land towards the north by virtue of sale deed no. 589 dated 31.03.2005. (c) The entire purpose was to analogously purchase the property involved in Sale Deed No. 590 dated 31.03.2005 and Sale Deed No. 589 dated 31.03.2005 by the petitioners being the adjoining raiyats. (d) From the north side of the property, two sale deeds were executed on account of the fact that two properties stood in the name of two different persons. Counsel for the petitioners reiterated the requirement of execution of two sale deeds as the vendors of the two sale deeds were different and the same was not a device to defeat any right of the respondent no 5 or to defeat any provisions of the aforesaid Act. (e) Counsel for the petitioners submits that after purchase of the property vide sale deed no. 590 dated 31.03.2005 another application was filed by the respondent no. (e) Counsel for the petitioners submits that after purchase of the property vide sale deed no. 590 dated 31.03.2005 another application was filed by the respondent no. 5 under the provisions of Section 16 (3) of the aforesaid Act claiming himself to be the adjoining raiyat. (f) He submits that both the application for pre-emption in relation to the sale deed no. 589 and 590 dated 31.03.2005 was filed by the respondent no. 5 on the same day. Accordingly, both were analogously heard by the concerned authority. The application for pre-emption filed by the respondent no. 5 in connection with the property being 590 dated 31.03.2005 was allowed by the original authority against which the appeal was dismissed and thereafter revision was also dismissed. (g) Counsel for the petitioners while referring to the said order passed by the revisional authority disposing of the revision bearing no. 34 of 2009 and 33 of 2009 submits that the impugned orders have been passed on the ground that the petitioners had purchased the plot no. 151(under dispute) in two parts vide sale deed no. 589 dated 31.03.2005 in sale deed no 590 dated 31.03.2005 and thus both the properties were simultaneously purchased by the petitioners and by virtue of this purchase, the petitioners had shown themselves as adjoining raiyat in both the sale deeds. Counsel for the petitioner submits that impugned orders holding that by virtue of both the purchase, the petitioners had shown himself as adjoining raiyat in both the sale deeds is perverse in as much as so far as sale deed no. 589 dated 31.03.2005 is concerned, towards north, the property stood in the name of the father of the petitioners by virtue of sale deed of the year 2001 which was duly mentioned in the sale deed vide sale deed dated 589 dated 31.03.2005. (h) It is not correct to say that by virtue of simultaneous purchase, the petitioners had shown himself as adjoining raiyat in both the sale deeds. (h) It is not correct to say that by virtue of simultaneous purchase, the petitioners had shown himself as adjoining raiyat in both the sale deeds. (i) Counsel for the petitioners relied upon the judgment passed in 2007 (3) BBCJ 350 to submit that very fact that two sale deeds were executed on the same day and got registered on the same day simultaneously simply shows that the intention of the petitioners was to buy the larger chunk of land and he submits that as per the said judgment, rights of parties are required to be balanced. He further relies on another judgment passed in 1997 (2) B.L.T. 412 wherein it has been held that right of pre-emption cannot be claimed by adjoining raiyat or co-sharer against any adjacent raiyat or co-sharer. (j) Without prejudice to the aforesaid submissions the counsel for the petitioners submits that the claim of pre-emption has to be examined on the date on which application was filed by the pre-emptor in exercising his right under Section 16(3) of the Act and on that date by virtue of the said two sale deeds executed on the same day the petitioners had become the adjoining raiyats of one and the other property and vice versa. For this the petitioners rely upon the judgment reported in 1997 (2) PLJR 412. 6. Counsel for the respondent no 5 on the other hand submits that so far as claim of the petitioners being adjoining raiyat in connection with the sale deed no. 589 dated 31.03.2005 is concerned, the claim of the petitioners is based on the sale deed of the year 2001 executed in favour of the father of the petitioners and this sale deed was never produced before any authorities below and has been produced for the first time before this court, thus said claim of the petitioners cannot be taken into consideration. The counsel could not dispute that on the face of these two sale deeds and under the facts and circumstances of this case the petitioners were the adjoining raiyats towards the north of the property covered by sale deed no 589 dated 31.03.2005. However, he submitted that local inspection can be directed. 7. The counsel for the respondent no 5 further submits that so far as the claim regarding the adjoining raiyat in connection with other property being sale deed no. However, he submitted that local inspection can be directed. 7. The counsel for the respondent no 5 further submits that so far as the claim regarding the adjoining raiyat in connection with other property being sale deed no. 590 dated 31.03.2005 is concerned, the claim of the petitioners being adjoining raiyat is by virtue of another sale deed bearing no. 590 executed on the same day i.e. on 31.03.2005. Since both the sale deeds were executed on the same day, so the petitioners cannot be given benefit of the provisions of the aforesaid Act. The respondent also submits that this device is used for defeating the provisions of the aforesaid Act. These two sale deeds were executed only to defeat the right of the pre-emptor which is a statutory right and the same cannot be denied. Counsel for the respondents submits that the learned authorities below have rightly passed the impugned orders which does not require any interference as there is no perversity in the impugned orders. Counsel for the respondents submits that all the materials which were produced by the petitioners and by the respondents before the authority have been considered and new document, even the registered sale deed as contained in Annexure-1 of the writ petition cannot be considered for appreciation for the first time in the writ jurisdiction. Counsel for the respondents relied upon the judgment reported in 1995 (1) PLJR 851 and submits by referring to paragraph no. 4 of the judgment that in that case, the claim of the pre-emptor respondents in respect of both vended pieces of land was instituted by filing two separate pre-emption application it was held that the purchaser could hardly thwart the claim of the pre-emption by the device of having got two sale deeds executed on the same date. 8. After hearing the counsel for the parties and considering the facts and materials placed on record this court is inclined to allow both the writ petitions on account of following facts and reasons:- (i) From perusal of the sale deed dated 589 dated 31.03.2005 it is apparent that towards north of the property, name of father of the petitioners have been shown. From perusal of pre-emption application filed by the private respondent being L.C. case No. 2/2005 it appears that there was no dispute regarding the fact that towards north, property stood purchased by Dwarika Vishwakarma and it is not disputed that the petitioners are sons of Dwarika Vishwakarma and constitute hindu undivided family . Thus from the petition for premption itself it was apparent that name of father of the petitioners appeared towards the northern boundary. Accordingly the petitioners were the co-sharers of the property standing in the name of Dwarika Vishvakarma and were the adjoining raiyats. Since there was no dispute that the property towards north stood in name of father of the petitioners, therefore non-production of the sale deed bearing no. 589 dated 18.04.2001 does not make any difference. Otherwise also from the perusal of the writ petition and the counter affidavit filed in this case, these aspects of the matter are an admitted fact. Accordingly there is no dispute that the property to the north of the land covered by sale deed no. 589 dated 31.03.2005 stood in the name of father of the petitioners. This court fully agrees with the submission of the counsel for the petitioners that right of pre-emption cannot be claimed by adjoining raiyat or co-sharer against any adjacent raiyat or co-sharer. This is very clear from the language of section 16(3) of the aforesaid Act itself. Section 16(3) of the aforesaid Act is quoted here in below for ready reference:- 16. Restriction on future acquisition by transfer, etc. 16(3)(i) When any transfer of land is made after the commencement of the Act 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 ten percent thereof is deposited in the prescribed manner within the said period. Provided that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten percent thereof is deposited in the prescribed manner within the said period. (ii) On such deposit being made the co-sharer or the raiyat shall be entitled to be put in possession of the land irrespective of the fact that the application under clause (i) is pending for decision: Provided that where the application is rejected, the co-sharer or the raiyat, as the case may be, shall be evicted from the land and possession there of shall be restored to the transferee and the transferee shall be entitled to be paid a sum equal to ten per cent of the purchase money out of the deposit made under clause (i). (iii) If the application is allowed, the Collector shall by an order direct the transferee to convey the land in favour of the applicant by executing and registering a document of transfer within a period to be specified in the order and, if he neglects or refuse to comply with the direction, the procedure prescribed in Order 21, Rule 34 of the Code of Civil Procedure, 1908 (V of 1908), shall be, so far as may be, followed. In view of the aforesaid factual aspect and the provision of the aforesaid section 16(3) of the Act, the condition precedent, for exercising the right of pre-emption under Section 16(3) of the aforesaid Act was not satisfied as the property was purchased by the petitioners who are the co-sharers of the adjoining land. Accordingly the application filed by the respondent no. 5 for exercising his right of pre-emption in connection with the sale deed no. 589 dated 31.03.2005 has been wrongly allowed by the original authority, which in turn was confirmed by the appellate authority and was also confirmed by the revisional authority. (ii) So far as sale deed no. 590 dated 31.03.2005 is concerned, there is no doubt that the petitioners had claimed to be the adjoining raiyat of this property by virtue of another sale deed no. 589 dated 31.03.2005 itself. The allegation of the respondents that these two sale deeds having been executed as a device to defeat the provisions of law is not sustainable. 590 dated 31.03.2005 is concerned, there is no doubt that the petitioners had claimed to be the adjoining raiyat of this property by virtue of another sale deed no. 589 dated 31.03.2005 itself. The allegation of the respondents that these two sale deeds having been executed as a device to defeat the provisions of law is not sustainable. It appears that petitioners intended to buy the entire chunk of land and for that purpose they entered into two different sale deeds executed by two different persons and both these sale deeds got registered on the same day. No malice can be attributed to the writ petitioners for this action. (iii) So far judgment relied upon by the respondents which is reported in 1995 (1) PLJR 851 is concerned, this court finds that in the said judgment this Court was of the view that two sale deeds were executed by same person and was used as a device to defeat the right of the pre-emptors. In the instant case when two sale deeds were executed by two different persons, such allegation of using it as a device to defeat the right of the pre-emptor cannot be sustained. So far as judgment relied upon by the petitioners is concerned, in the judgment reported in 2007 (3) BBCJ 350 (Patna) it would appear that this Hon’ble Court had allowed the claim of the pre-emption on the ground that simultaneous purchase of both properties had indicated the intention of the purchaser to buy the larger area of the land and it was held that if the application for pre-emption is allowed, it would become onerous for the purchaser and the right between the parties is required to be balanced. As this Court does not find any malafide intention on the part of the petitioners or any intention to defeat the provisions of the said Act, this court is of the considered view that the petitioners intended to buy a large chunk of land covered by two sale deeds executed by two persons. Accordingly the application for pre-emption filed by the respondent no. 5 in connection with sale deed no 590 dated 31.03.2005 has been wrongly allowed by the original authority and this aspect of the matter has not been considered by the authorities below. Accordingly the application for pre-emption filed by the respondent no. 5 in connection with sale deed no 590 dated 31.03.2005 has been wrongly allowed by the original authority and this aspect of the matter has not been considered by the authorities below. Even otherwise as per the judgment relied upon by the petitioners reported in 1997 (2) PLJR 412 the right of pre-emption has to be seen on the date of filing of the application and on the date of application, the petitioners were adjoining raiyats by virtue of sale deed no. 590 dated 31.03.2005 and sale deed No. 589 of 2005 although they were simultaneously purchased from two different persons. 9. Considering the facts and circumstances of the case, these two writ petitions are allowed and order dated 22.10.2011, as contained in Annexure-5 to the writ petitions, passed by the respondent no. 2 in Land Ceiling Revision Case No. 33/2009 and 34/2009 and the orders dated 19.09.2009, as contained in Annexure-4 to the writ petitions, passed by the respondent no. 2 in Land Ceiling Appeals No. 05/2007-08 and 12 of 2007-08 and the orders dated 12.01.2007 (Annexure-3 to the writ petitions ) passed by the respondent no. 4 in Land Ceiling Case No. 2/2005-06 and 1/2005-06 are hereby quashed and set aside. 10. Thus the writ petitions are hereby allowed. Writ Petitions allowed.