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PATNA HIGH COURT
G.N.Prasad, A.B.N.Sinha and Anwar Ahmad JJ.
Ram Chandra Srivastava
Versus
Parsidh Narain Singh
Civil Writ Jurisdiction Case No. 590 of 1967 ;
Decided On : SEPTEMBER 23, 1970
LAND REFORMS - Fixation of Ceiling Area and Acquisition of Surplus Land Act, 1961 (Bihar Act 12 of 1962) - Sec.16(3) - Right of pre-emption - Accrues on the date of application and not on the date of transfer - Can be defeated by the transferee acquiring the same status as the applicant before the date of application.
Fact of the Case:
Petitioners filed an application under Sec.16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, for being put in possession of the lands covered by two sale deeds and for a direction to the vendee to execute a document of transfer in their favour. The Collector rejected the petition, the Commissioner set aside the Collector's order, the Collector again rejected the petition, the Commissioner declined to interfere, and the Board of Revenue dismissed the petition. Hence, the present writ application.
Finding of the Court:
The right of pre-emption which accrues to a co-sharer or a raiyat holding land adjoining the transferred land under Sec.16(3) of the Act must subsist not only on the date of execution and registration of the document of transfer, but also on the date of the application which must be made within three months from the date of registration thereof. This right is ipso facto defeated if before the date of the application the transferee himself acquires the same status in relation to the transferred land as the applicant.
Issues: 1. Whether the right of pre-emption which accrues to any co-sharer of the transferor or to any Raiyat holding the land adjoining the land transferred under Sec.16(3) of the Act on transfer of land having been made to any person, who is neither the co-sharer nor the Raiyat of an adjoining land, can be defeated by the transferee himself acquiring before the date of the application the same status as the applicant? 2. Whether the petition under Sec.16(3) was fit to be dismissed as being not in accordance with law on the ground of "the description of the land as required (by?) Schedule I of Form LC. XIII, which is the prescribed form for application under Sec.16(3) namely, whether the land transferred was held for agriculture or horticulture or was homestead land being wholly absent"?
Ratio Decidendi: 1. The right of pre-emption accrues on the date of application and not on the date of transfer. It can be defeated by the transferee acquiring the same status as the applicant before the date of application. 2. The description of the land as given in Schedule I of Form LC. VIII which the petitioners had filed before the Collector on the 29th December, 1962, amounts to sufficient compliance with the requirement of Schedule I of Form LC. XIII.
Final Decision: The writ application was dismissed.
G.N.Prasad, J.
1. This application under Articles 226 and 227 of the Constitution is directed against the order of the Collector of Patna (Respondent No. 7), in the first instance; that of the Commissioner, Patna Division, Patna (Respondant No. 6) on appeal, and finally that of the Member Board of Revenue (Respondent No. 5) in revision, concurrently rejecting a petition filed by the petitioners under Sec.16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, Bihar Act 12 of 1962 (hereinafter referred to as the Act). The relevant facts are not in dispute and may be briefly stated as follows:
2. On the 23rd October, 1962, two sale deeds were executed and registered in favour of Prasidh Narain Singh (Respondent No. 1); one for Rs. 400.00 by Swaroop Singh (Respondent No. 2, since deceased, and represented by his legal representatives) in respect of .03 acre of land comprised in plot No. 738 in village Sadabh, Pargana Masaurha police station Bikram, district Patna, and the other for Rs. 650.00 by Shrimati Lalmati Devi (Respondent No. 3) in respect of .03 acre of land in plot No. 738 as well as .10 acre of land in plot No. 2661 situated in the same village. On the 5th December, 1962, the petitioners made an application to the Collector under Sec.16(3) of the Act for being put in possession of the lands covered by both the sale deeds and for a direction to Respondent No. 1 to execute a document of transfer in their favour-Along with the petition the petitioners filed a challan showing a deposit of Rs. 1050.00 plus Rs. 105/- as required by the proviso to Clause (i) of Sub-section (3) of Sec.16. In the original petition particulars as required in Schedule I of Form LC13, mentioned in Rule 19(1) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963, hereinafter referred to as the Rules, framed under Sec. 45 of the Act, had not been furnished. But subsequently they were furnished by the petitioners on the 29th December, 1962. Since, however, the Rules had not been published until then, the Collector rejected the petition as not maintainable by his order dated the 30th August. 1963. A copy of the Collectors order is Annexure 1 to the writ application.
3. On appeal, however, the Commissioner set aside the Collectors order dated the 30th August, 1963, by his order dated the 23rd October. 1963, since by then the Rules had been published. He remanded the proceeding to the Collector for disposal according to law after giving the petitioners a reasonable opportunity to comply with the prescribed Rules in regard to the form of application and the manner of deposit. A copy of the Commissioners order is Annexure 2 to the writ application.
4. On remand, the Collector again rejected the petition by his order dated the 21st June, 19G6, holding that respondent No. 1 had interest in plot Nos. 2659 and 2660, both adjoining plot No. 2661, which is one of the plots in dispute, and as such the petitioners were not entitled to the right of pre-emption which they were claiming since "Law does not give superior right to co-sharers to that of the tenants of the adjoining lands. In fact, the right of pre-emption itself is a weak right and the settled law is that an attempt to defeat this right of pre-emption by legitimate means is justified". It appears, however, that the Collector did not record any clear findings as to whether the petitioners were or were not co-sharers of either of the two plots in dispute. A copy of the Collectors order Is Annexure 3 to the writ application.
5. The petitioners, thereupon, preferred an appeal before the Commissioner under Sec.30 of the Act The Commissioner found that the petitioners were co-sharer raiyats in respect of plot No. 738, but he declined to interfere because it was admitted before him that Respondent No. I was a raiyat in respect of lands adjoining plot No. 2661 and hence Clause (i) of Sec.16(3) of the Act was not att
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