Kurban Miyan, son of Late Wasi Ahmad, resident of Village- Kauriya, Tola Teliya Bandh v. 1. The State of Jharkhand 2. Ajim Ansari, son of Late Sakur Miyan, resident
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 2105 of 2023 Kurban Miyan, son of Late Wasi Ahmad, resident of Village- Kauriya, Tola Teliya Bandh, P.O.- Sua, P.S.- Sadar, Daltonganj, District- Palamau Petitioner … … Versus 1. The State of Jharkhand 2. Ajim Ansari, son of Late Sakur Miyan, resident of Village- Kauriya, Tola- Teliya Bandh, P.O.- Sua, P.S.- Sadar, Daltonganj, District- Palamau 3. Mosomat Anhachhiya, wife of Triveni Paswan, resident of Village- Kauriya, Tola- Teliya Bandh, P.O.- Sua, P.S.- Sadar, Daltonganj, District- Palamau 4. The Additional Collector, Palamau 5. The Deputy Collector Land Reforms, Sadar, Medininagar, Palamau …. … Respondents CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner For the State : Mr. Pradyuman Poddar, Advocate : Mr. Shubham Gautam, A.C. to A.A.G.-V Order No. 05 Dated: 26.09.2024 The present writ petition has been filed for setting aside
Decision
the order dated 16.12.2022 (Annexure-9 to the writ petition) passed by the Member, Board of Revenue, Jharkhand, Ranchi in Revision Case No. 16 of 2021 whereby the order dated 10.06.2015 passed by the Additional Collector, Palamau (respondent no. 4) in Land Ceiling Appeal No. XV/01/2014-15 has been set aside and the order dated 08.04.2013 passed by the Land Reforms Deputy Collector, Sadar, Medininagar, Palamau has been affirmed. 2. Learned counsel for the petitioner submits that the respondent no. 3- Mosomat Anhachhiya transferred the land appertaining to Khata no. 13, Plot no. 2817, situated at village - Kauriya, Tola - Teliyabandh, P.S - Sadar Medininagar, District- Palamau measuring an area of 0.04 acre to the respondent no. 2- Ajim Ansari, vide sale deed no. 763/741 dated 24.01.2012 and the mutation of the said land was allowed by the Circle Officer, Sadar, Medininagar vide mutation case no. 1328/2011-12 issuing correction slip and rent receipt in favour of the respondent no. 2. 3. It is further submitted that the petitioner having come to know about the said transfer, filed an application being L.C. Case No. 27 of 2011-12 under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (in short, “the Act, 1961”) before the Land Reforms Deputy Collector, Sadar, Medininagar (the respondent no. 5) claiming his right of pre- emption. However, the respondent no. 5, vide order dated 08.04.2013 passed in Land Ceiling Case No. 27 of 2011-12, rejected the said application filed by the petitioner holding that a small parcel of land measuring an area of 0.04 acre had been purchased for residential purpose and as such, the application filed under Section 16(3) of the Act, 1961 was not worth consideration. 4. Aggrieved with the said order, the petitioner filed Land Ceiling Appeal No. XV/01/2014-15 before the Additional Collector, Palamau (the respondent no. 4) and the same was allowed vide order dated 10.6.2015 observing that except the sale deed dated 24.01.2012, no documentary evidence was produced by the respondent no. 2 before the respondent no. 5 to prove that the nature of land was residential. It was further observed that from the description of boundaries of the said land, it was evident that the petitioner was the adjoining raiyat and as such the order passed by the respondent no. 5 was not in accordance with the provisions of the Act, 1961 and hence was liable to be set aside. 5. Thereafter, the respondent no. 2 preferred Land Ceiling Revision Case No. 16 of 2021 before the Member, Board of Revenue, Jharkhand, Ranchi which was allowed vide order dated 16.12.2022 2 W.P.(C) No. 2105 of 2023 holding inter alia that the disputed land was originally owned by the petitioner who subsequently sold it to the respondent no. 3 vide sale deed no. 4059 dated 22.05.2003 and as such, the petitioner, who was the vendor of the sale deed dated 22.05.2003, could not have claimed the right of pre-emption in subsequent transfer of the said land. 6. It is also submitted that the Member, Board of Revenue has failed to ascertain the issue raised by the petitioner that he is an adjoining raiyat. Learned Member has also failed to give any finding as to whether the seller of the land can claim the same on the basis of pre-emption. 7. Learned counsel for the petitioner further submits that in view of Section 16(3) of the Act, 1961, the adjoining raiyat has a right of pre-emption and the seller of the land should give preference to the pre-emptor for purchase of the land. Merely because the pre-emptor had earlier sold the property to a purchaser, does not mean that the pre-emptor has lost his right. The sale of land and preference to a pre-emptor are two distinct principles and the same cannot be merged together. 8. Learned A.C. to A.A.G.-V appearing on behalf of the State respondents submits that the Member, Board of Revenue has rightly allowed the revision filed by the respondent no. 2 which needs no interference of this Court under extraordinary writ jurisdiction. It is further submitted that the right of pre-emption is a weak right and the same cannot be exercised by a person who himself had sold the land earlier. 3 W.P.(C) No. 2105 of 2023 9. Heard learned counsel for the parties and perused the materials available on record. 10. Thrust of the argument of the learned counsel for the petitioner is that the petitioner being an adjoining raiyat is entitled to the right of pre-emption in terms with Section 16(3) of the Act, 1961. 11. On bare perusal of the impugned order dated 16.12.2022 it appears that the learned Member, Board of Revenue has rejected the prayer of the petitioner on the sole ground that he himself had sold the said land to the respondent no. 3 in the year 2003 and as such he cannot claim the right of pre-emption. 12. In the case of Lachhman Dass Vs. Jagat Ram & Others reported in (2007) 10 SCC 448, the Hon’ble Supreme Court has held as under: - “16. Despite such notice, the appellant was not impleaded as a party. His right, therefore, to own and possess the suit land could not have been taken away without giving him an opportunity of hearing in a matter of this nature. To hold property is a constitutional right in terms of Article 300-A of the Constitution of India. It is also a human right. Right to hold property, therefore, cannot be taken away except in accordance with the provisions of a statute. If a superior right to hold a property is claimed, the procedures therefor must be complied with. The conditions precedent therefor must be satisfied. Even otherwise, the right of pre-emption is a very weak right, although it is a statutory right. The court, while granting a relief in favour of a pre-emptor must bear it in mind about the character of the right vis- à-vis the constitutional and human right of the owner thereof.” 13. In the case of Raghunath Vs. Radha Mohan reported in (2021) 12 SCC 501, the Hon’ble Supreme Court has held as under: - 4 W.P.(C) No. 2105 of 2023 “23. In our view, it would not be appropriate or permissible to adopt legal reasoning making such a weak right, some kind of a right in perpetuity arising to a plaintiff every time there is a subsequent transaction or sale once the plaintiff has waived his right or pre- emption over the subject immovable property. The loss of right mandated under Section 9 of the Act is absolute. A plain reading of the said provision does not reveal that such right can re-arise to the person who waives his right of pre-emption in an earlier transaction. To do so would mean that a person, whether not having the means or for any other reason, does not exercise the right of pre-emption and yet he, even after decades, can exercise such a right. This would create, if one may say, some sort of a cloud on a title and uncertainty as a subsequent purchaser would not know, when he wants to sell the property, whether he can complete the transaction or not or whether a co-sharer will jump into the scene. This is not contemplated in the 1966 Act. This is bound to have an effect on the price offered by a purchaser at that time because he would have an impression of uncertainty about the proposed transaction.” 14. It is thus well settled that the right of pre-emption is a very weak right. Though the said right is a statutory one, however the same must be construed strictly. The right of pre-emption cannot re-arise once it is waived. Even a co-sharer is not allowed to claim the right of pre-emption on any subsequent sale of a land who had failed to avail his right when the land was first sold. 15. In the case in hand, the petitioner himself had lost his right upon the said land by selling it to the respondent no. 3 in the year 2003. Had the petitioner not sold the said land to the respondent no. 3, the present situation would not have arisen. The petitioner has thus waived his right of pre-emption by conduct. The intent of the legislature while framing Section 16(3) of the Act, 1961 is to protect the interest of the co-sharer or the adjoining raiyat, 5 W.P.(C) No. 2105 of 2023 however if the claim of the petitioner is accepted, then there will be every possibility that a person who sells a part of his land to any person in urgent need of money, will again claim the right of pre- emption at the time of subsequent sale of the same land and in such situation, the purpose of Section 16(3) of the Act, 1961 will get frustrated. 16. In view of the aforesaid discussion, I do not find any reason to interfere with the order dated 16.12.2022 passed by the Member, Board of Revenue, Jharkhand, Ranchi in Revision Case No. 16 of 2021 under extraordinary equitable writ jurisdiction. 17. The writ petition is accordingly dismissed. Ritesh/A.F.R. (Rajesh Shankar, J.) 6 W.P.(C) No. 2105 of 2023