1. Pramod Kanti Ghosh 2. Subodh Kanti Ghosh Both s/o late Amal Kanti Ghosh v. 1. The State of Jharkhand 2. The Member, Board of Revenue, Jharkhand, at Ranchi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) LPA No. 114 of 2019 -------- 1. Pramod Kanti Ghosh 2. Subodh Kanti Ghosh Both s/o late Amal Kanti Ghosh, r/o Patpur, PO & PS- Baharagora, District-Singhbhum (East) … Appellants Versus 1. The State of Jharkhand 2. The Member, Board of Revenue, Jharkhand, at Ranchi, PO- Dhurwa, PS-Jaganathpur, District-Ranchi 3. The Additional Collector, at Jamshedpur, PO & PS-Jamshedpur, District-Singhbhum (East) 4. The Deputy Collector, Land Reforms, At Ghatshila, PO & PS- Ghatshila, District-Singhbhum (East) 5. Uma Shankar Pandey, s/o late Ram Narayan Pandey 6. Vijay Shankar Bajpayee, s/o late Gouri Shankar Bajpayee Sl. No. 5 & 6 r/o village- Kotsole, PO-Kotsole, PS- Baharagora, District-Singhbhum (East) 7. Pati Pawan Paul, s/o Naba Kumar Paul, r/o village-Winala, PO- Winala, PS-Baharagora, District-Singhbhum (East) 8. Shobha Devi, w/o Badri Narayan Pathak, r/o Block Colony, B.D.O Office Campus, PO & PS-Baharagora, District-Singhbhum (East) …Respondents
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA For the Appellants : Mr. R. R. Tiwary, Advocate For the State : Mr. Rakesh Kumar Shahi, AC to SC (L&C)-I
Decision
-------- O R D E R 17th March 2023 Per, Shree Chandrashekhar, J. IA No. 3508 of 2019 This interlocutory application has been filed for condonation of delay of 19 days in filing the present Letters Patent Appeal. The State has raised no objection. For the reasons stated in the application, IA No. 3508 of 2019 is allowed and delay of 19 days in filing this present Letters Patent Appeal is condoned. LPA No. 114 of 2019 The appellants are legal heirs and successors of Amal 2 LPA No. 114 of 2019 Kanti Ghosh. 2. Amal Kanti Ghosh who was the writ petitioner has challenged the order dated 15th January 2008 passed in Revision Case No. 122 of 2006. 3. Revisional order dated 15th January 2008 in Revision Case No. 122 of 2006 passed by the Member, Board of Revenue, Jharkhand reads as under: “Heard the Learned counsel for the petitioner and the Spl. G.P. It is clear from the order of the DCLR and the Appellate Authority that the land in question is not agricultural in nature. On the basis of the field inspection report obtained by the DCLR, he came to a clear conclusion that the vended plot is residential in nature besides he has also held that the respondent purchaser is also an adjoining raiyat. This conclusion is based on the fact that both the petitioner as well as the purchaser respondent holds parts of plot No. 526 which is located on the northern boundary of the vended plot No. 528. The respondent purchaser has already constructed his house on the vended plot and is living therein. In view of the fact that the respondent purchaser is also an adjoining raiyat and in view of the residential nature of the land in question, I do not see any reason to interfere with the orders of the DCLR and the appellate authority. Accordingly, this revision petition is dismissed.” 4. Briefly stated, Amal Kanti Ghosh was the pre-emptor who filed the application under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (in short, BLR Act) claiming himself the adjoining raiyat to the subject-land which was sold by Pati Pawan Paul to Uma Shankar Pandey and Bijoy Shankar Bajpayee through sale-deed dated 18th April 2000. The aforesaid sale-deed was executed with respect to the lands comprised under Plot No. 528 recorded under Khata No. 144 within Mouza-Katsole of Baharagora PS in the district of Singhbhum (East) for Rs.14,400/-. 5. The pre-emption application which was instituted by the father of the appellants as LC Case No. 2 of 2000-2001 has been dismissed by an order dated 10th May 2003. The Deputy Collector, Land Reforms has held that the subject-property was purchased by the respondent nos. 5 and 6 for residential purpose and they are adjoining raiyats. This finding of the Deputy Collector, Land Reforms has been affirmed by the Appellate Authority in LC Appeal No. 43 of 2003-2004. Not only that, the Revisional 3 LPA No. 114 of 2019 Authority has also refused to accept the case set-up by the appellants that the purchaser was the adjoining raiyat and dismissed Revision Case No. 122 of 2006. 6. Aggrieved by this order the appellants' father has filed the writ petition vide WP(C) No. 1149 of 2008. 7. The writ Court has held as under: “7. After hearing the counsel for the respondent- State, this Court finds that there is consistent finding by all the three authorities that the property involved in this case was found to be residential in nature and further, the purchaser of the property was the adjoining raiyat. 8. Section 16(3) of the aforesaid Act of 1961 reads as follows:- “(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 the 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.” (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 cosharer 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 refuses 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.” 9. From the perusal of the Section 16(3) of the aforesaid Act of 1961, it is observed that the right of pre-emption can be exercised only when the purchaser is neither the co-sharer of the property nor the raiyat of the adjoining property and in the instant case the respondent (purchaser of the property) is an adjoining raiyat, as held by all the three authorities. 10. After considering the materials on record, in view of the specific provision of Section 16(3) of the aforesaid Act of 1961, this Court does not find any illegality or perversity in the impugned orders so as to interfere under Article 226 of the Constitution of India, therefore, this writ petition is dismissed.” 8. Mr. R. R. Tiwary, the learned counsel for the appellants 4 LPA No. 114 of 2019 who are the legal heirs and successors of Amal Kanti Ghosh submits that the writ Court has passed the order dated 20 th December 2018 against a dead person inasmuch as on that day Amal Kanti Ghosh had passed away. The learned counsel for the appellants refers to IA No. 326 of 2011 filed for substitution of Amal Kanti Ghosh which, however, was not taken cognizance of and the writ petition was dismissed in absence of the writ petitioner. 9. We do not find any substance in the aforesaid plea raised on behalf of the appellants inasmuch as on the day when the order dated 20th December 2018 was passed the application for substitution was already on the records of WP(C) No. 1149 of 2008. It is just a mistake on the part of the learned counsel for the writ petitioner who did not press IA No. 326 of 2011 before the final order was passed and that is the reason an order for substitution of the writ petitioner was not passed. This was on record before the writ Court that the writ petitioner has passed away and had the application for substitution been pressed before, this would have been just a ministerial act correcting the memo of parties. 10. The BLR Act is a piece of agrarian reform and a complete Code in itself. An order passed by the statutory authority under the BLR Act is not open to challenge in a writ proceeding unless it is established that the order passed by the statutory authority is contrary to records and not based on any legal evidence. 11. Even otherwise a right to pre-emption is a very weak right in law and the Courts would generally decline to interfere in a matter after lapse of about two decades. 12. In “Kumar Gonsusab v. Mohd. Miyan” (2008) 10 SCC 153 the Hon'ble Supreme Court has held as under: “19. ... It is well settled that it would be open to the pre-emptee, to defeat the law of pre-emption by any legitimate means, which 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. 20. That apart, it is now well settled that the right of pre-emption is a weak right and is not looked upon with favour by courts and therefore the courts cannot go out of their way to help the pre-emptor.” 5 LPA No. 114 of 2019 13. Having regard to the aforesaid facts and circumstances in the case, LPA No. 114 of 2019 is dismissed. 14. of. Amit/ IA Nos. 3509 of 2019 and 5442 of 2020 stand disposed (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.)