====================================================== Smt. Dhano Devi, wife of Shri Chillu Mahto @ Tillu Mahto, resident of v. 1
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10892 of 2000 ====================================================== Smt. Dhano Devi, wife of Shri Chillu Mahto @ Tillu Mahto, resident of Village Gopekita, Pandarak, Police station Pandarak, District Patna .... .... Petitioner/s Versus 1. Shri Suresh Prasad Sharma @ Suvo Singh, son of Makhan Singh, resident of Village Pandarak, Dih, P.S. Pandarak, District Patna 2. Mostt. Ram Pyari Devi, wife of Sripati Singh resident of Village Pandarak, Police Station Pandarak, District Patna (deleted vide order dated 22.10.2002), substituted by Smt. Lalita Devi, wife of Sripati Singh, a resident of Village Pandarak, P.s. Pandarak, District Patna 3. The State of Bihar 4. Additional Member, Board of Revenue 5. Collector, Patna 6. Deputy Collector, Land Reforms ====================================================== .... .... Respondent/s Appearance :
Legal Reasoning
by a Division Bench of this Court in Udai Narain Singh Vs. State of Bihar [2008 (2) P.L.J.R. 409], the claim of pre-emption made on behalf of the respondent no.1 cannot be challenged on the basis of earlier judgment in the case of Nathuni Mahto Vs. State of 4 Patna High Court CWJC No.10892 of 2000 (13) dt.17-07-2013 4 / 5 Bihar (Supra). However, learned counsel appearing on behalf of the respondent no.1 has not been able to show as to whether both the vendors namely, Most. Ram Pyari Devi and Most. Lalita Devi were impleaded as parties in the pre-emption proceeding or not. 5. After having heard the parties, and on consideration of the materials available on record, this Court finds that all the issues of facts and issues of law raised on behalf of the parties, which have been noticed above, have not been properly gone into either by the original authority or by the appellate authority or by the revisional authority. The question of facts and question of law, as noticed above, go to the root of the matter with respect to the claim of pre-emption with respect to the vended lands. Therefore, in the considered opinion of this Court, entire matter requires reconsideration and fresh decision right from the stage of Section 16(3) of the Land Ceiling act. 6. For the reasons recorded above, the order dated 7.7.1987 ( Annexure-1) passed by the respondent D.C.L.R., Barh, appellate order dated 17.7.1999 ( Annesure-2) passed by the respondent District Collector, Patna, and the impugned revisional order dated 22.7.2000( Annexure-3) passed by the respondent Additional Member, Board of Revenue, Bihar, Patna are hereby set aside and the matter is remitted back to the respondent D.C.L.R., Barh, for deciding the matter afresh strictly in accordance with law, after giving opportunity of hearing to all the parties. 7. The parties shall be at liberty to raise all the issues, which have been raised in the present proceeding and which are available to them under the law. The question of facts and question of law raised by the parties shall be gone into by the 5 Patna High Court CWJC No.10892 of 2000 (13) dt.17-07-2013 5 / 5 respondent D.C.L.R., Barh, and only thereafter he shall decide the claim of pre-emption under Section 16(3) of the Land Ceiling Act by a reasoned and speaking order. 8. In order to expedite the matter, the petitioner and respondent no.1 are hereby directed to appear before the respondent D.C.L.R., Barh, with a certified copy of the present order within a period of six weeks from today, whereafter, the respondent D.C.L.R. shall fix a firm date of hearing the matter afresh. He shall issue notice to non-appearing party and after giving opportunity of hearing to all concerned, he shall decide the matter afresh. 9. In the result, the writ petition succeeds to the extent indicated above. However, the parties shall bear their own costs. Kanth/- (Birendra Prasad Verma, J)
Arguments
For the Petitioner/s : Mr. Sidheshwari Prasad Singh, Sr. Advocate Mr. Jashwir Singh Arora, Advocate For the Respondent No.1 : Mr. Ravi Kumar, Advocate For the Respondents 3 to 6 : Mrs. Sunita Kumari, A.C. to G.P. 15 ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 13 17-07-2013 Heard the parties. The present proceeding under Article 226 of the Constitution of India 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 2 Patna High Court CWJC No.10892 of 2000 (13) dt.17-07-2013 2 / 5 Act’). 2. The petitioner is the purchaser of lands under dispute by three registered sale deeds dated 30.1.1986. Respondent No.1, claiming to be a co-sharer of the vendor, filed a petition under Section 16 (3) of the Land Ceiling Act, raising the claim of pre-emption with respect to the impugned transfer made in favour of the petitioner. The claim of pre-emption made on behalf of respondent no.1 was allowed by an order dated 7.7.1987 (Annexure-1). Admittedly, with respect to purchase made by the petitioner through three different registered sale deeds only one case of pre-emption was filed by respondent no.1. The order passed by the respondent D.C.L.R., Barh, was set aside and reversed by the respondent District Collector, Patna by order dated 17.7.1999( Annexure-2). However, on perusal of the aforesaid appellate order dated 17.7.1999 (Annexure-2), this Court finds that the respondent District Collector, Patna, has not considered the matter on merits and has not decided all the issues involved with respect to the pre-emption claim raised on behalf of the respondent no.1. By the impugned revisional order dated 22.7.2000 (Annexure-3), the order passed by the respondent District Collector has been set aside and that of respondent D.C.L.R. has been restored. 3. Learned Senior Counsel appearing on behalf of the petitioner has submitted that three registered sale deeds were executed by two vendors, but it appears that only one vendor was impleaded as party and other vendor was left out, and this issue has not been properly raised and considered by any of the authorities under the Land ceiling Act. It was next submitted that the petitioner is a landless person in terms of section 27 of the 3 Patna High Court CWJC No.10892 of 2000 (13) dt.17-07-2013 3 / 5 Land ceiling Act. Therefore, purchase made by the petitioner for the purposes of construction of her residential house cannot be subjected to pre-emption proceeding. In support of his contention, he has placed reliance on the judgment of a Division Bench of this Court in the case of Nathuni Singh Vs. State of Bihar [1997(2) P.L.J.R. 287]. It was further contended that in view of purchase of lands under dispute by three registered sale deeds the petitioner herself became boundary raiyat of the present parcel of land and, therefore, claim of pre-emption made on behalf of respondent no.1 could not have been allowed. In support of his above contention he has placed reliance on the judgment of a Division Bench of this Court in Nathuni Mahto Vs. State of Bihar [2004 (2) P.L.J.R. 334. 4. Learned counsel appearing on behalf of the contesting respondent no.1 has opposed the prayer made on behalf of the petitioner and has supported the orders passed by the original authority as also the revisional authority. He contends that even if the transfer has been made by three sale deeds in favour of one person, then in that case also, the claim of pre-emption can be raised by the boundary raiyat or co-sharer of the vendor by filing only one pre-emption case. In support of his above contention, he has placed reliance upon a Division Bench judgment of this Court in the case of Ram Prasad Singh @ Ram Prasad Yadav Vs. State of Bihar [1973 B.L.J.R. 577]. It was next contended on behalf of the respondent no.1 that in view of subsequent judgment