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2022 DIGILAW 1277 (JHR)

Md. Hasim S/o Md. Ali Mian v. State of Jharkhand

2022-11-02

KAILASH PRASAD DEO

body2022
ORDER : I.A. No. 9997 of 2022 1. Mr. R.P. Gupta, learned counsel for the petitioner has submitted that he has filed I.A. No. 9997 of 2022 to add Md. Mostakim as a party. 2. Mr. Bhaiya Vishwajet, learned counsel for the private respondent No. 3 has opposed the prayer and has submitted that when he has taken such defence no such improvement can be made in the pleading. 3. This Court has also perused the judgment of this Court in the case of Raghunath Ram @ Raghubir Ram vs. State of Jharkhand and Others, 2006 SCC Online Jhar 520 : (2006) 4 JLJR 562 (HC) and has found that no such opportunity can cure the indefeasible effects of the file. 4. Accordingly, I.A. No. 9997 of 2022 is hereby dismissed. W.P. (C) No. 3235 of 2006 5. The instant writ petition has been filed against the order passed by the respondent No. 2-Member, Board of Revenue dated 30.03.2006 passed in Rev. Case No. 15 of 2005. 6. Leaned counsel for the petitioner has submitted, that a preemption application has been filed by the petitioner against Mostakim Mian, who has executed a registered sale deed dated 10.01.2004 in favour of Mumtaz Ahmad son of Reyazuddin with respect to the land of Khata No. 96, Plot No. 858, area 0.05 acre. 7. Learned counsel for the petitioner has further submitted, that before the Land Reforms Deputy Collector vide Hazaribagh Case No. 03 of 2004, which was filed by the petitioner-Md. Hasim against Md. Mostakim Mian, notice was issued to Md. Mostakim. He has further submitted that though notice has also been issued against Mumtaz also but he has submitted that there is no such averment nor any document has been brought on record to substantiate that Md. Mumtaz was also noticed. 8. Learned counsel for the petitioner has submitted, that notice was duly executed against Md. Mostakim but Md. Mostakim did not appear before the Court and thus, ex-parte hearing was held before the Land Reforms Deputy Collector, Hazaribag with respect to the land of Village Kud, Khata No. 96, Plot No. 858, Rakba 0.33 acre, Area 0.05 acre and passed an order on the ground that both the parties, i.e. Md. Hasim and Mumtaz Ahmad are agnates but Md. Hasim has a better right. 9. Hasim and Mumtaz Ahmad are agnates but Md. Hasim has a better right. 9. Learned counsel for the petitioner has further submitted, that subsequently a deed was executed by the Land Reforms Deputy Collector himself in favour of Md. Hasim. Again the said order of Land Reforms Deputy Collector dated 18.06.2004 passed in Hazaribagh Case No. 03 of 2004, the private respondent No. 3-Mumtaz Ahmad preferred an appeal before the court of Additional Collector (Bhu Hakbandi Hazaribag, which was registered as Land Ceiling Case No. 11 of 2004) and notice was issued to Md. Hasim, who is petitioner before this Court. The Additional Collector has also rejected the appeal on the ground that the claim of the appellant is not stronger than the claim of the opposite party, i.e. Md. Hasim. 10. Learned counsel for the petitioner has submitted, and both the courts have given a concurrent finding, the Board of Revenue has passed a cryptic vague order which is not sustainable in the eyes of law and, as such, the order passed by the Member, Board of Revenue dated 30.03.2006 passed in Rev. Case No. 15 of 2005 is fit to be set aside. 11. Mr. Prashant Kumar Rai, AC to Mr. Ratnesh Kumar, learned SC (L&C)-I appearing on behalf of the respondent-State has submitted, that the Board of Revenue has passed a reasoned and explanatory order. The Board of Revenue has rightly rejected the judgment passed by Land Reforms Deputy Collector, which is non-sustainable in the eyes of law as without giving any date on the notice issued against Md. Mostakim, the LRDC has fixed the case ex-parte. Learned counsel for the respondent-State has submitted that it was an apparent error on the part of the LRDC, ought not to have been committed. 12. Learned counsel for the respondent-State has further submitted, that the Board of Revenue has rightly considered this point for setting aside the order of LRDC and also rightly considered the judgment passed by the Additional Collector on the ground that right of raiyat cannot be said without any reason to be stronger or better as per Act of Bihar/Jharkhand Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. Section 2(K) of the Act, 1961 deals with raiyat, which reads as follows: “(K) “raiyat” means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family or by hired servants or with aid of partners and includes also the successors in-interest or persons who have acquired such a right and includes, in the district of Santhal Parganas a village head man in respect of his private land, if any, but does not include in the areas to which the Chotanagpur Tenancy Act, 1908 (Ben. Act VI of 1908), applies a Mundari, Khuntkattidar or a Bhuinhar.” 13. Learned counsel for the respondent-State has thus submitted, that the Member, Board of Revenue has rightly passed an order, therefore, this Court may not interfere with the order. 14. Mr. Bhaiya Vishwajeet, learned counsel appearing on behalf of the private respondent no. 3 has opposed the argument advanced by the learned counsel for the petitioner and further advanced the argument on the ground that it is fallacy that without impleading the purchaser as a party in the proceeding before the LRDC under Section 16(3) of the Act and without noticing to the purchaser, an ex-parte hearing was fixed by the LRDC. It seems that LRDC was much interested in deciding the case in very haste manner even though the notice, which has been brought by the private respondent as Annexure-A to the counter affidavit shows that no date was fixed in the notice and, as such, it appears that LRDC was not justified in performing his duty. 15. Learned counsel for the private respondent No. 3 has further submitted that though Md. Mostakim has been made party in the notice but no such averment has been made by the petitioner in the writ petition, that purchaser was a party in the proceeding initiated by the petitioner under Section 16(3) of the Act. Learned counsel for the private respondent No. 3 has further submitted, that a categorical statement has been made at paragraph-4 of the counter affidavit, where the respondent has stated that the writ petition is not maintainable due to non-joinder of necessary party as petitioner Md. Hasim, vendor of the land in question being necessary party has not been impleaded as party/respondent in the writ petition. 16. Mr. Hasim, vendor of the land in question being necessary party has not been impleaded as party/respondent in the writ petition. 16. Mr. Bhaiya Vishwajeet, learned counsel for the private respondent has placed reliance upon the judgment passed by a co-ordinate Bench of this Court in the case of Raghunath Ram (supra), whereby this issue has also been decided placing reliance upon paragraph-9, which may profitably be quoted hereunder: “9. While dealing with a pre-emption matter under Section 16(3) of the Act, Ranchi Bench of Patna High Court noticed Rule 19 of the.Bihar Land Ceiling Rules, 1963 in the case of Ramchandra Singh vs. Sub-Divisional Officer, Hajipur, 1989 PLJR 103 : 1989 (1) BLJR 121. The Court held, that the provision of Rule 19 is mandatory in nature and in absence of any notice having been given to transferor, entire proceeding under Section 16(3) is vitiated in law. In the said case the Court having noticed that the transferor who was being brought on record at revisional stage, held, that the same will not cure the defects so far as non-compliance of Rule 19 is concerned. The present case of the Petitioner is covered by the decision, rendered by Ranchi Bench of Patna High Court in the case of Ram Chandra Singh (supra). In this case also the transferor, Bhagia Devi (7th Respondent) was not impleaded as party before the 1st Court and the Appellate Court. The subsequent purchaser, Dashrath Pandit (6th Respondent) was not impleaded as party who was impleaded for the first time in the Revisional Court. In view of the findings aforesaid neither the order passed by the Revisional Authority can be upheld nor the subsequent order passed by the Appellate Authority on remand can be upheld by this Court. The order passed by the Appellate Authority dated 12th January, 2001 in Land Ceiling Appeal No. 18 of 1993-94 and the order dated January, 1998 passed by the Revisional Authority in Land Ceiling Revision Case No. 298/96 are hereby set aside. ” 17. Learned counsel for the private respondent has submitted that in the present case, the vendor has not been made party and, as such, the writ petition is fit to be dismissed. 18. Learned counsel for the private respondent has further submitted that Rule 19 of the Bihar/Jharkhand Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rule, 1963 reads as follows: “19. 18. Learned counsel for the private respondent has further submitted that Rule 19 of the Bihar/Jharkhand Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rule, 1963 reads as follows: “19. Application by co-sharer or a raiyat of adjoining land for transfer of land under Section 16(3): (1) Application by co-sharer or raiyat of adjoining land for transfer of land under Section 16(3) shall be in Form L.C. 13 and the purchase money together with a sum equal to ten percent thereof shall be deposited in the Treasury/Sub-treasury of the district within which the land transferred is situated. (2) A copy of the Challan, showing deposit of the amount under sub-rule (1) together with a copy of the registered deed, shall be filed along with the application in which also a statement to his effect shall be made. (3) A copy of the said application shall also be sent simultaneously by the applicant to the transferor and the transferee by registered post with acknowledgement due. (4) The Collector shall issue a notice to the transferor, the transferee and the applicant to appear before him on a date to be specified in the notice and after giving the parties concerned a reasonable opportunity of showing cause, if any, and of being heard, shall by an order in writing, either allow the application in accordance with clause (iii) of sub-section (3) of Section 16, or reject it. (5) If the application is allowed under item (iii) of sub-section (3) of Section 16 and the transferee is directed by the Collector by any order to convey the land in favour of the applicant by executing and registering a document of transfer, the applicant shall be required to pay the registration fee. (6) Where the application is allowed and the transferee conveys the land in favour of the applicant under Section 16(3) (iii), the transferee shall be allowed to withdraw the money deposited by the applicant.” 19. (6) Where the application is allowed and the transferee conveys the land in favour of the applicant under Section 16(3) (iii), the transferee shall be allowed to withdraw the money deposited by the applicant.” 19. Learned counsel for the private respondent has thus emphasized Rules 19(3) of the Rule 1963, that a copy of the said application shall also be sent simultaneously by the applicant to the transferor and tranferee by the registered post with acknowledgment due but this has also not been done by the petitioner, as such, the order passed by the Member, Board of Revenue setting aside the order of the LRDC and the Additional Collector does not require any interference by this Court. 20. Learned counsel for the respondent has further submitted that all the courts have admitted that both are gotia and adjoining raiyats. The LRDC has passed an ex-parte order, whereas the Additional Collector has without any reason specified that the writ petitioner has a better right than private respondent without assigning any reason. 21. Learned counsel for the respondent has submitted, that Section 2-K of the Act, 1961, defines the raiyat. Any person who has an adjoining cultivable land is an adjoining raiyat and at least so far the relation is concerned, the private respondent is much closer than the writ petitioner with the vendor as stated in paragraph-5 of the counter affidavit, that he is the non else than cousin of my father. 22. Learned counsel for the respondent has thus submitted, that writ petition is frivolously pending before this Court since 2006 and is fit to be dismissed as the Member, Board of Revenue has passed a reasoned order for not accepting the order of the LRDC as well as of the Additional Collector and as such, this Court may not interfere with the same. 23. Learned counsel for the respondent has thus submitted, that how LRDC can execute a sale deed in a proceeding in which the date has not been fixed and the parties have not been noticed and also without initiating any execution proceeding, this shows the conduct of the LRDC, which speaks in volume and, as such, the writ petition may be dismissed. 24. After hearing the parties and as perusal of the impugned order passed by the Member, Board of Revenue, it appears that the Member, Board of Revenue has taken all precautions. 24. After hearing the parties and as perusal of the impugned order passed by the Member, Board of Revenue, it appears that the Member, Board of Revenue has taken all precautions. The LRDC has issued notice without fixing the date and nowhere it has been clarified, that purchaser was also a party and he has also been noticed. Nowhere the LRDC has said that while fixing the case ex-parte what are the things, he has incorporated in his order, that even after issuance of notice, the person having knowledge has not appeared and thus the date is fixed for an ex-parte hearing but it appears to this Court, that the LRDC was in haste, he was adamant to decide the matter in favour of the petitioner and thus issued notice only to Md. Mustakim without fixing the date and thus the ex-parte order of the LRDC has rightly been set aside by the Member, Board of Revenue. 25. This Court has also examined the judgment passed by the Member, Board of Revenue and has found that the Additional Collector has no right to say, who has a better right. The law says about raiyat as defined under Section 2-K of the Act, 1961. All the courts have admitted that both are raiyat and, as such, under Section 2-K of the Act, 1961 the respondent is a raiyat, the Additional Collector has no right to declare who has better right rather Act of 1961 stays about raiyat because better raiyat has never been defined under the Act, which shows that the Additional Collector has not applied his mind and the Member, Board of Revenue has rightly passed the order setting-aside the order of the Additional Collector too. 26. This Court has perused the order of the Member, Board of Revenue and also perused the judgment relied by learned counsel for the petitioner passed in the case of Raghunath Ram (supra) and also Rule 19 of Rule, 1963 as stated above. It appears to this Court that the Member, Board of Revenue is justified in passing the order, as such, I do not find any illegality or irregularity in the order of the Member, Board of Revenue, accordingly, the same is hereby affirmed. 27. The instant writ petition is being devoid of merit hereby dismissed.