Dismissed

Rameshwar Lohar v. The State Of Jharkhand Through Secretary And Ors.

Jharkhand HC11 Apr 2019WPC/1225/2016

Case brief

AI extract

What is this about?

The Court dismissed two writ petitions challenging pre-emption applications under the Bihar Land Reforms Act. The Court held applications were not maintainable because the purchasers were adjoining raiyats, a condition precedent that barred the petitioners.

What did the court decide?

The writ petitions were dismissed, upholding the conclusion that pre-emption applications were not maintainable.

Rameshwar Lohar Vs The State Of Jharkhand Through… — Property and Title | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P. (C) No.1225 of 2016

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Rameshwar Lohar S/o Late Basudeo Lohar, residents of Village, P.O. & P.S. –Jamua, District- Giridih

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… … Petitioner

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Versus

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The State of Jharkhand through Secretary Revenue, At & P.O. - Dhurwa, P.S. – Jagannathpur & District – Ranchi.

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Member Board of Revenue, At & P.O. – Dhurwa, P.S. – Jagannathpur, District- Ranchi.

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Additional Collector, AT, P.O., P.S. & District- Giridih

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Deputy Collector Land Reforms, AT, P.O., P.S., & DistrictGiridih

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Basanti Devi W/o Sri Sunder Saw, residents of villageHarila, P.O. & P.S. – Jamua, District- Giridih

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Most. Champa Devi W/o Late Brijnandan Yadav

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Pawan Kumar Yadav S/o Late Dharo Yadav S. No. 6 & 7 are residents of Village, P.O. & P.S. – Jamua, District- Giridih

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… … Respondents With

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W.P. (C) No. 1226 of 2016

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Rameshwar Lohar S/o Late BasudeoLohar, residents of Village, P.O. & P.S. –Jamua, District- Giridih

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… … Petitioner

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Versus

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The State of Jharkhand through Secretary Revenue, At & P.O. - Dhurwa, P.S. – Jagannathpur, & District – Ranchi.

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Member Board of Revenue, At & P.O. – Dhurwa, P.S. – Jagannathpur, District- Ranchi.

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Additional Collector, At, P.O., P.S. & District- Giridih

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Deputy Collector Land Reforms, AT, P.O., P.S., & DistrictGiridih

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Basanti Devi W/o Sri Sunder Saw, residents of villageHarila, P.O. & P.S. – Jamua, District- Giridih

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Most. Chameli W/o Late Hitlal Yadav,

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Sujit Yadav S/o Late Hitlal Yadav,

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S. No. 6 & 7 are residents of Village, P.O. & P.S. – Jamua, District – Giridih

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(Note:-Hitlal Yadav died on 13.04.2008)

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Manjul Prasad, Sr. Advocate : Mr. Arbind Kumar Sinha, Advocate : Mr. Baban Prasad, Advocate : Mr. Praveen Kumar Varma, Advocate For the Respondents :Mr. Amar Kumar Sinha, Advocate

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: Mr. Sandeep Verma, Advocate : Ms. Puja Kumari, Advocate ---

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10 /11.04.2019

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1. Heard Mr. Manjul Prasad, Senior Counsel appearing on behalf of the petitioner in both the cases assisted by Mr. Arbind Kumar Sinha, Mr. Baban Prasad and Mr. Praveen Kumar Varma, Advocates.

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2. Heard Mr. Amar Kumar Sinha, counsel appearing on behalf of the respondents assisted by Mr. Sandeep Verma and Ms. Puja Kumari, Advocates.

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3. Counsel for the petitioner submits that W.P. (C) 1225 of 2016 has been filed challenging the order dated 19.6.2015 Passed by Respondent No. 2 in Board Revision Case No. 16 of 2012 and to uphold the order dated 26.4.2012 passed by Respondent No. 3 in L.C. Appeal No. 11 of 2009-10.

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The counsel submits that similar reliefs have been prayed for in W.P. (C) No. 1226 of 2016 challenging the order dated 19.6.2015 passed by Respondent No. 2 in Board Revision Case No. 15 of 2012 whereby and where under he has set aside order dated 26.04.2012 passed by Respondent No. 3 in L.C. Appeal No. 10 of 2009-10 and to uphold the order dated 26.04.2012 Passed by Respondent No. 3 in L.C. Appeal No. 10 of 2009-10.

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4. Counsel for the petitioner submits that in both these writ petitions, identical questions are involved and accordingly both the cases have been tagged to be heard together.

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5. Counsel for the petitioner submits that the two writ petitions arise out of two applications exercising the right of pre-emption under section 16(3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.

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Petitioner is the pre-emptor in connection with the property covered vide sale deed No. 4804 dated 05.11.2004 which is subject matter of W.P. (C) No. 1225 of 2016 and the pre-emptor in connection with property covered vide Sale Deed No. 4803

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dated 05.11.2007, which is subject matter of W.P. (C) No. 1226 of 2016 .

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6. He further submits that the petitioner being the adjoining raiyat in connection with both the aforesaid vended properties, filed separate applications for pre-emption in connection with aforesaid two sale deeds under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. He submits that there is no dispute that the procedure prescribed by the Rule 19 of the Rules has been followed. Pursuant to filing of the applications for pre-emption, notices were issued to the respondents by the learned Land Reforms Deputy Collector (Respondent No. 4) and the cases were numbered as Land Ceiling Case No. 101 of 2007-08 (with respect to Sale Deed No. 4803 dated 05.11.2007) and Land Ceiling Case No. 100 of 2007-08 (with respect to Sale Deed No. 4804 dated 05.11.2007).

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7. Counsel for the petitioner further submits that the specific case of the purchaser of the property was that they are also the adjacent raiyat of the vended properties and therefore the applications for pre-emption were not maintainable. Considering this aspect of the matter, the applications for preemption under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 were rejected. Against this, the petitioner filed appeals before the appellate authority and the appellate authority allowed the pre-emption applications and set aside the orders passed by the learned Land Reforms Deputy Collector. Against the appellate orders, the private respondents herein filed revision cases before the Member, Board of Revenue, who vide two different impugned orders both dated 19.06.2015 has set aside the orders of appellate authority, on the ground that the property involved in this case was not capable of being used for agriculture purposes and accordingly the application for pre-

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emption was not maintainable. Counsel for the petitioner submits that the learned revisional authority has relied upon judgment passed by Hon’ble Supreme Court reported in ( 1996) 10 SCC 671 (Ramji Sharma Alias Ramji Babu (Dead) By Lrs. Vs. State of Bihar and Ors.) and another judgment passed by this Court reported in 2007 (2) JLJR 662 (Ram Prasad Sao vs. State of Bihar (Now Jharkhand) . He submits that the property which is involved in this case were found to be fit for agriculture by the appellate authority after considering all the materials on record, and, merely because of the fact that after purchase of the land, house has been constructed, the same will not disentitle the pre-emptor from claiming the property and his right to pre-emption will not be defeated on account of any such subsequent development. He submits that the right of preemption was required to be considered with respect to the situation, as it prevailed on the date of filing of the application of pre-emption which was admittedly filed with time after due compliance of the requirements of law. He further submits that otherwise also the aforesaid judgments relied upon by the revisional authority do not apply to the facts of this case; as the said judgments were passed considering the fact that the property involved in those cases were admittedly located in urban area/town area and the transfers in those cases were held to be not connected with agriculture and in this background it was held in those cases that the application for pre-emption was not maintainable.

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8. Counsel for the appellant further submits that the impugned order passed by the revisional authority is fit to be set aside and the order passed by the appellate authority is fit to be restored. 9. Counsel for the respondents, on the other hand, submits that from the perusal of the impugned orders and from the perusal of the specific stand, which was taken by the petitioner before the revisional authority, is an admitted fact that the purchaser

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was itself an adjoining raiyat of the vended property by virtue of earlier sale deed dated 04.04.2007. Accordingly, the application under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 itself was not maintainable. He has further referred to a judgment passed by Hon’ble Patna High Court reported in 2013 (4) PLJR 360 (Savitri Devi & Ors. Vs. The State of Bihar & Ors.) to submit that similar view has been taken by the Hon’ble Patna High Court. He further submits that even if the reasoning given by the revisional authority to hold that the application for preemption was not maintainable, is assumed to be incorrect, then also the application for pre-emption was not maintainable on account of a distinct reason assigned by the respondent no. 4, who rejected the applications for pre-emption as not maintainable on the ground that as the purchaser was an adjoining raiyat.

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10. This Court finds that the learned Land Reforms Deputy Collector had rejected the applications for preemption in both the cases by recording a finding that the purchaser of the property was an adjoining Raiyat and therefore preferential right of pre-emption was not available to the pre-emptor. The appellate authority allowed the appeal and allowed the application for pre-emption filed by the petitioner on the ground that the pre-emptor was the adjoining Raiyats from much prior to the purchaser and also held that the vended properties were fit for agriculture and were raiyati lands. The Revisional Authority allowed the revision filed against the appellate orders on the ground that the provisions of Section 16 (3) of the aforesaid Act of 1961 was not applicable as the land was being used for

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residential and commercial purposes and that the purchaser had also constructed a house on the property.

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11. After hearing counsel for the parties and after considering the materials on record, this Court finds that admittedly the pre-emptor as well as the purchaser of the property are adjoining raiyat to the vended property in both the cases.

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12. Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 read as follows: -

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“(3)(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 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:

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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.

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(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:

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Provided that where the application is rejected, the co-sharer 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

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transferee shall be entitled to be paid a sum equal to ten percent of the purchase money out of the deposit made under clause (i).

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(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.”

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13. This Court finds that the condition precedent for filing an application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 is that the purchaser of the property should be other than the co-sharer of the property or the adjoining raiyat. In the instant case, the purchaser is the adjoining raiyat of the vended property and hence this Court is of the considered view that the application itself was not maintainable. Similar view was taken by the Respondent No. 4 while dismissing the application for pre-emption in both the cases. Accordingly, this Court is of the considered view that the finding which has been recorded by the revisional authority regarding the nature of the land has no bearing in the matter, as the applications for pre-emption filed by the petitioner itself was not maintainable as held above.

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14. This Court finds that in the judgment passed by Hon’ble Patna High Court reported in 2013 (4) PLJR 360 (Savitri Devi &Ors. Vs. The State of Bihar &Ors.) it has been held in Para Nos. 8 and 9 as follows:-

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“8. The claim of the pre-emptor is two-fold; firstly that he was the owner of the land adjacent to the land in question purchased by the purchaser and secondly that other land purchased by the purchaser was not adjacent

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to the land in question and hence the purchaser cannot defeat the right of pre-emption of the original appellant. 9. The law in this regard is well-settled that if the purchaser is himself an adjacent Raiyat to the land purchased, the claim of pre-emption by any other adjacent Raiyat shall not be maintainable. Hence, it has to be seen whether the pre-emptor had been able to dislodge the claim of the purchaser when he was himself an adjacent Raiyat.”

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15. This Court fully agrees with the aforesaid view of the Hon’ble Patna High Court and has already held above that condition precedent for filing an application for pre-emption under the aforesaid Act of 1961 is that that the purchaser should neither be a co-sharer nor an adjoining Raiyat of the vended property.

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16. Accordingly, this Court finds that the petitioner is not entitled to claim any preferential right of pre-emption under Section 16 (3) of the aforesaid Act of 1961 in connection with the vended properties involved in these cases. In view of the aforesaid, this Court finds that the learned Land Reforms Deputy Collector had rightly appreciated the law and held that the application for pre-emption was not maintainable, as the purchaser was the adjoining Raiyat of the vended property.

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17. In aforesaid view of the matter, the impugned order passed by the revisional authority holding that the applications for pre-emption were not maintainable under the facts of the case, does not call for any interference, though on account of a different reason i.e. the aforesaid reason assigned by the learned Land Reforms Deputy Collector while rejecting the application for pre-emption.

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18. So far as the appellate authority is concerned, this Court finds that the appellate authority was not justified in setting aside the order passed by the learned Land Reforms Deputy Collector and allowing the application for pre-emption on the ground that the pre-emptor was the adjoining Raiyat since

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much prior in time than the purchaser. This Court is of the considered view that the provision of Section 16(3) of the aforesaid Act of 1961 does not give any additional advantage to the person who is adjoining Raiyat to the vended property since prior in time as compared to the purchaser of the property. There is no such allegation that the purchase of land by the purchaser vide earlier sale deed dated 04.04.2007 was a device adopted to defeat the right of the pre-emptor.

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19. So far as the revisional authority is concerned, the revisional authority took note of the present land use of the vended property who held that the property was not being used for agricultural purposes and hence the application for pre-emption was not maintainable. This Court is of the considered view that the application for pre-emption is to be considered on the basis of the nature of land, as it stood on the date of transfer and subsequent use of land has no bearing. This Court fully agrees with the arguments of the counsel for the petitioner that the property which is involved in this case were found to be fit for agriculture by the appellate authority after considering all the materials on record, and, merely because of the fact that after purchase of the land, house has been constructed, the same will not disentitle the pre-emptor from claiming the property and his right to pre-emption will not be defeated on account of any such subsequent development. The aforesaid judgments relied upon by the revisional authority while passing the impugned orders i.e. reported in (1996) 10 SCC 671 (Ramji Sharma Alias Ramji Babu (Dead) By Lrs. Vs. State of Bihar and Ors.) and another judgment passed by this Court reported in 2007 (2) JLJR 662 (Ram Prasad Sao vs. State of Bihar (Now Jharkhand), do not apply to the facts and circumstances of this case as in those cases the properties were admittedly located in urban/town areas and were not fit for agriculture.

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20. Accordingly, the reasoning given by the revisional authority, to come to a conclusion that application for preemption were not maintainable, are not sound reasons. At the same time, this Court is of the considered view that the reason assigned by the learned Land Reforms Deputy Collector to hold that the application for pre-emption were not maintainable, were sound reasons and accordingly the applications of preemption filed by the petitioners in both the writ petitions are held to be not maintainable for the reasons mentioned in the orders passed by the learned Land Reforms Deputy Collector. 21. As a cumulative effect of the aforesaid findings, no reliefs can be granted to the writ petitioners and accordingly both these writ petitions are dismissed.

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(Anubha Rawat Choudhary, J.)

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Mukul

Rameshwar Lohar v. The State Of Jharkhand Through Secretary And Ors.

Case brief

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Rameshwar Lohar v. The State Of Jharkhand Through Secretary And Ors.

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