Syed Yakoob v. Radhakrishnan
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) L.P.A No. 657 of 2019 Siddique Ansari, s/o late Ismile Ansari, r/o village-Badalpur, PO & PS- Tundi, District-Dhanbad ...… Appellant Versus 1. The State of Jharkhand 2. The Additional Member, Board of Revenue, Jharkhand, Ranchi, PO &PS- Dhurwa, District-Ranchi 3. Dhiren Mandal, s/o late Dukhan Mandal 4. Anil Mandal, s/o late Dukhan Mandal, Respondent nos.3 and 4 both are r/o village-Badalpur, PO & PS-Tundi, District-Dhanbad 5. Smt. Hamila Khatoon, d/o late Habbibuddin, w/o Atikur Rehman, r/o village-Badalpur, PO & PS-Tundi, District-Dhanbad .…Respondents -------------- CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA For the Appellants For the State
Legal Reasoning
: Mr. Shekhar Prasad Sinha, Advocate : Mr. Sachin Kumar, AAG-II
Decision
--------------- O R D E R 17th March 2023 Per, Shree Chandrashekhar, J. The writ petitioner 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, “Ceiling Act”) is aggrieved of the order dated 25th July 2019 by which the challenge laid by him to the order dated 13th August 2015 passed in Board Case No.18 of 2010 has not been accepted by the writ Court in W.P(C) No.969 of 2016. 2. The writ Court has referred to the judgments of the Hon'ble Supreme Court in “Syed Yakoob v. Radhakrishnan” AIR 1964 SC 477, “Sawarn Singh v. State of Punjab” (1976) 2 SCC 868, “Pepsico India Holding (P) Ltd. v. Krishna Kant Pandey” (2015) 4 SCC 270, “Chandavarkar Sita Ratna Rao v. Ashalata S. Guram” (1986) 4 SCC 447 to hold that no interference is required with the order passed by the Additional Member, Board of Revenue, Jharkhand. 3. The writ Court has discussed the factual matrix of the case as pleaded in the writ petition. The facts in brief are that 20 decimals of land in Plot No. 551 under Khata No. 7 of Mouza Badalpur within PS Tundi in the 2 L.P.A No.657 of 2019 district of Dhanbad was sold by Smt. Halima Khatoon (respondent no. 5) in favour of the respondent nos. 3 and 4 by executing a Sale-Deed No. 5215 dated 25th September 2002. This transaction has been objected to by the writ petitioner on the ground that the lands in question are adjacent to his property situated in the northern side of the lands in question. On such ground, he has claimed right to pre-emption as provided under Section 16 sub-section 3 of the Act, 1961. 4. The pre-emption application under section 16(3) of the Ceiling Act filed by the writ petitioner vide L.C Case No.18/2002-03 claiming himself as an adjoining raiyat and co-sharer of the respondent no.5 has been dismissed by an order dated 2nd December 2003, by holding that the petitioner is a co-sharer and the land is agricultural land. The main reason for the dismissal of the pre-emption application seems to be that he did not accept the offer of sale of the lands in question by the respondent no.5. 5. This order was affirmed by the appellate authority in L.C Appeal No. 80 of 2003 but the appellate order was set-aside by the Board of Revenue in Revision No. 31 of 2005, with an order of remand for a fresh consideration of the appeal preferred by the purchasers. 6. On remand, the appellate authority has passed the order dated 8th February 2010 in L.C Appeal No.80 of 2003 holding that the subject lands are suitable for agricultural purposes. Vide order dated 8th February 2010, the appellate authority has reiterated its view taken in its order dated 4th July 2005. The respondent no. 5 again approached the Board of Revenue vide Board Case No. 18 of 2010 against the order dated 8th February 2010. 7. The Board of Revenue has held as under: “8. In view of the above mentioned facts of case that there are claim and counter-claim of the petitioner and O.P. NO-1 regarding the genealogy of the O.P.No-1. It has been contended by the petitioner that Ghahu Mian, Aklu Mian and Hari Mian are not co-related to each other, whereas O.P. No-1 has claimed that all these three persons belong to same genealogy. The petitioner says that Ghachu Mian is not related with 0.P.No-1 or his ancestors rather he was a tenant in his house. In his order dated-08.02.2010 on page-3 (para- 2) the learned Additional Collector has concluded that under the provisions of section 63 of Mahomedan Law and on the basis of evidences collected from Cadestral Survey Khatiyan O.P.No-2, Md. siddique is co-sharer of O.P.No-2 with regard to the disputed land. It does not stand to my reason on what material facts and evidences under the provisions of section 63 of Mahomedan Law, the Additional Collector arrived at a conclusion that O.P.No-1 is co-sharer of O.P.No-2. Similarly, the claim made by O.P.No-2 in her counter affidavit was not taken into consideration or rather it 3 L.P.A No.657 of 2019 was not examined at all by the court below. The boundary as mentioned in the sale deed of O.P.No-2 was not considered, as claimed by the petitioner. There is no mention of boundary in the sale deed of O.P.No-01, purchased from Aaisha Bibi, then how and on what grounds the O.P.No-1 became the adjoining raiyat of the land in dispute. These conclusions of appellate as well as lower court are not supported by material or oral evidences available on record. 9. The specific claim of petitioner that the vendor, vendee or the pre-emptor are not agriculturist and the land is not capable of being need for agriculture purposes, as it is a homestead land was not examined at all by the court below. From perusal of the annexure-4 of the revision application which is the sketch map of surroundings of land in dispute, there are village roads in two sides and several houses are situated at different plots in the vicinity of the area. From perusal of the sale deed of petitioner it is also clear that the land was purchased for construction of house and for business purposes. But while deciding this case neither appellate nor lower court considered this fact in spite of specific direction of Hon'ble Member, Board of Revenue, Jharkhand by his order dated- 17.07.2006. The direction of Hon'ble Member, Board of Revenue, Jharkhand was not complied in right perspective. The order of the appellate as well as lower court are erroneous, perfunctory and perverse in the light of order of Hon'ble Sipreme Court and KARNATAKA High Court. 10. In view of the abovementioned facts and material of the case, the revision petition is hereby allowed and the order of the Additional Collector, Dhanbad, dated-08.02.2010, the order dated- 04.07.2005 of Additional Collector, Dhanbad and the order of D.C.L.R, Dhanbad, dated-02.12.2003 in L.C. Case No-18/2002-03 are accordingly set aside.” 8. As noticed above, Board Case No. 18 of 2010 has been allowed on 13th August 2015 which order was challenged by the pre-emptor in W.P(C) No.969 of 2016. The writ Court has dismissed the writ petition holding that he has failed to make out a case for interference with the findings recorded by the revisional authority. 9. The writ Court has held as under- “This Court with respect to this issue, is of the view by taking the aid of the judgment, rendered in the case, as referred hereinabove that for passing an order under Section 16 sub-section 3 of the Act, 1961, the purpose for obtaining the land must be of agriculture and the same, if not reflected from the sale deed, therefore, the nature of the land having been purchased for construction of house, as would appear from the sale deed, the very question of applicability of Section 16 sub-section 3 of the Act, 1961 will not be said to be available. The issue of making reference of the nature of the land, is also one of the consideration in the case of Urmila Devi-Vs.-State of Bihar (Supra), wherein, this Court after taking into consideration the sale deed, which does not reflect the nature of the land, is agricultural, has come to the finding that the application under Section 16 sub section 3 of the Act, 1961 is not applicable. This Court after discussing the factual aspect with the legal position, elaborately, hereinabove, is of the view that the pre- emptor has failed to substantiate his claim, attracting the ingredient, as stipulated under the provision of Section 16 sub- section 3 of the Act, 1961 and as would appear from the order, 4 L.P.A No.657 of 2019 passed by the revisional authority that the land in question is surrounded by roads, having surrounded also by the Pucca construction house and as per the recital of the sale deed, the same has been purchased for the purpose of construction of house and, therefore, is of the view that the nature of land is not agriculture, as has been said to be on the basis of the reference made in the Survey of the year 1997, but, since the application under Section 16 sub section 3 of the Act has been made and therefore, is of the view that the revisional authority has rightly reached to the conclusion that in spite of the particular issues framed to be answered by the appellate authority having not done so, has set aside the order passed by the Deputy Collector Land Reforms and the Additional Collector and while doing so, no infirmity has been committed. In view of the entirety of the facts and circumstances and since the Revisional authority has, after having discussed the factual aspect in detail and considering the non-consideration of the factual aspect, as per the issue framed by it by virtue of the earlier order, has rightly set aside the order, passed by the Deputy Collector Land Reforms and the Additional Collector.” 10. The Ceiling Act provides two conditions for making an application under sub-section 3 to section 16 viz. (i) the applicant is an adjoining raiyat and/or (ii) the applicant is a co-sharer. 11. Two Courts have held against the appellant and while so, the writ Court has rightly refused to entertain the challenge against the order dated 13th August 2015 passed by the revisional authority. Even otherwise, the right to pre-emption is a very weak right in law and the Courts would generally not interfere in the matter and, that too, after two decades – sale-deed was executed on 25th September 2002. 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 preemption 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.” 13. Having regard to the aforesaid facts and circumstances in the case, finding no merit in the present Letters Patent Appeal, L.P.A No.657 of 2019 is dismissed. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated : 17th March 2023 sudhir/N.A.F.R.