Nirmala Mishra Vs State of Jharkhand

The present writ petition has been filed for quashing the order dated 02.09.2020 passed by the Additional Collector, Palamaurespondent no.3 in Land Ceiling Appeal Case No.XV/13 of 201718, whereby the appeal filed by the respondent no.5 was allowed, setting aside the order dated 08.06.2017 passed by the Deputy Collector Land Reforms, Chhattarpur (Palamau)-respondent no.4 in Land Ceiling Case No.02 of 2016-17. Further prayer has

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been made for quashing the order dated 28.09.2022 passed by the Member, Board of Revenue, Jharkhand, Ranchi-respondent no.2 in Revision Case No. 24 of 2020, whereby the revision petition filed by the petitioners has been dismissed.

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Learned counsel for the petitioner submits that the respondent no. 5 purchased the land measuring an area of 0.02 Acres appertaining to R.S. Plot No.29 of Khata No.26 situated at Village Pipra, P.O. and P.S.- Pipra, District Palamau (hereinafter referred as the said land) by virtue of a registered sale deed no.4791/4698 dated 17.10.2016.

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It is further submitted that the original preemptor, namely, Vijay Kumar Mishra filed application 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 respondent no. 4 being Land Ceiling Case No.02 of 2016-17 claiming preemption on the ground that he was one of the co-sharers and adjoining raiyat with respect to the said land. The Respondent No.5 filed show cause in the said case stating inter alia that the said land was purchased for residential purpose and as such the application filed by the said pre-emptor claiming pre-emption was not maintainable. The respondent no. 4, however, allowed the said case vide order dated 08.06.2017. Aggrieved thereby, the respondent no.5 filed Land Ceiling Appeal Case No.XV/13/201718 before the Additional Collector, Palamau against the original preemptor and after his death, the petitioners were substituted as respondents. The said appeal was allowed vide order dated

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02.09.2020, setting aside the order dated 08.06.2017 passed by the respondent no.4. Thereafter, the petitioners filed Revision Case No. 24 of 2020 against the respondent no.5 before the Member, Board of Revenue, Jharkhand which was heard alongwith Revision Case Nos.25 of 2020 and 26 of 2020. The said revision petitions were dismissed vide common order dated 28.09.2022.

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It is also submitted that the said land is being used for agricultural purpose and the transferee is neither a co-sharer nor an adjoining raiyat with respect to the land in question. Thus, both the appellate as well as the revisional authorities exceeded their jurisdiction in dismissing the appeal and revision filed by the petitioners on absolutely irrelevant consideration of the materials available on record. In fact, neither the said land is homestead land nor the same is being used for dwelling purpose.

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Per contra, learned counsel for the respondent-State submits that there is no infirmity in the appellate order passed by the respondent no.3 as well as the revisional order passed by the respondent no. 2 and as such the same need no interference of this court in exercise of the power conferred under Article 227 of the Constitution of India. It is further submitted the respondent nos.2 and 3 have specifically observed in the impugned orders that the said land has been purchased for residential purpose and as such section 16(3) of the Act, 1961 is not applicable in the present case.

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Heard the learned counsel for the parties and perused the materials available on record.

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Thrust of the argument of the learned counsel for the petitioners is that the said land was agricultural land and the petitioners being the co-sharers and adjoining raiyats were entitled to purchase the same in view of section 16(3) of the Act, 1961.

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Before delving into the merit of the contentions of the petitioners, it would be appropriate to refer few judgments rendered by the Hon’ble Supreme Court dealing with the scope of supervisory jurisdiction of the High Court under Article 227 of the Constitution of India.

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In the case of Mohd. Yunus Vs. Mohd. Mustaqim & Others reported in (1983) 4 SCC 566 , the Hon’ble Supreme Court has held as under:-

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“7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “to seeing that an inferior court or tribunal functions within the limits of its authority”, and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an appellate court or tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.”

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The Hon’ble Supreme Court in the case of Venkatlal G. Pittie

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& Another Vs. Bright Bros. (P) Ltd., reported in (1987) 3

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SCC 558, has held as under: -

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“27. Interference by the High Courts under Article 227 of the Constitution must be within limits. This question has been considered by this Court from time to time and principles laid down. This Court in Ganpat Ladha v. Sashikant Vishnu

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Shinde [(1978) 2 SCC 573] expressed the view that the High Court commits a gross error in interfering with what was a just and proper exercise of discretion by the Court of Small Causes, in exercise of its power under Article 227 of the Constitution. This was unwarranted. The High Court under Article 227 has a limited jurisdiction. It was held in that case that a finding as to whether circumstances justified the exercise of discretion or not, unless clearly perverse and patently unreasonable, was, after all a finding of fact and it could not be interfered with either under Article 226 or 227 of the Constitution. If a proper court has come to the conclusion on the examination of the nature of the structure, the nature of the duration of structure, the annexation and other relevant factors that the structures were permanent in nature which were violative of Section 13(1)(b) of the Rent Act as well as Section 108 clause (p) of Transfer of Property Act and such a finding, is possible, it cannot be considered to be perverse. In such a situation, the High Court could not have and should not have interfered.

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28. In India Pipe Fitting Co. v. Fakruddin M.A. Baker [(1977) 4 SCC 587] this Court reiterated that the limitation of the court while exercising power under Article 227 of the Constitution is well settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset the conclusions of facts, however erroneous these may be. It is possible that another court may be able to take a different view of the matter by appreciating the evidence in a different manner, if it determinedly chooses to do so. That will not be justice administered according to law to which courts are committed notwithstanding dissertation in season and out of season, about philosophies. In that case, the court found that the High Court had arrogated to itself the powers of the appellate court.”

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In the case of Laxmikant Revchand Bhojwani & Another Vs.

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Pratapsing Mohansingh Pardeshi Deceased through his heirs and legal representatives, reported in (1995) 6 SCC

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576, the Hon’ble Supreme Court has held as under:-

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“9. Before parting with this judgment we would like to say that the High Court was not justified in extending its jurisdiction under Article 227 of the Constitution of India in the present case. The Act is a special legislation governing landlord-tenant relationship and disputes. The legislature has, in its wisdom, not provided second appeal or revision to the High Court. The object is to give finality to the decision of the appellate authority. The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.”

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The proposition laid down in the aforesaid judgments has also

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been reiterated in the subsequent judgements rendered in the

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cases of State through Special Cell, New Delhi vs. Navjot Sandhu alias Afshan Guru & Others , reported in (2003) 6 SCC 641 , State of W.B. & Others vs. Samar Kumar Sarkar , reported in (2009) 15 SCC 444 and Gulshera Khanam vs. Aftab Ahmad , reported in (2016) 9 SCC 414 .

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Thus the law relating to interference with the orders of the courts or tribunals by the High Court within its jurisdiction in exercise of the power under Article 227 of the Constitution of India may be summarized as under:-

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“1. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited to see that court or tribunal functions within the limits of its authority and not to correct an error apparent on the face of the record much less an error of law.

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2. In exercising the supervisory power under Article 227, the High Court does not act as an appellate court or tribunal. It will not review or reweigh the evidence upon which the determination of the court or tribunal purports to be based or to correct errors of law in the decision.

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3. The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.

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4. Where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law.

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5. The jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise.”

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Now, reverting to the present case. This Court has perused the order of the respondent no.3 passed in Land Ceiling Appeal Case No.XV/13/2017-18 wherein it has been observed that the respondent no. 5 was a landless lady and she had bought two decimals of land for residential purpose and as such section 16(3) of the Act, 1961 was not applicable on the said land. It has further

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been observed that though the petitioners had claimed that the respondent no.5 was not a landless lady and the purchased land was agricultural, however they had failed to adduce any evidence in support of their claim.

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This Court has also perused the order dated 28.09.2022 passed by the respondent no.2 in Revision Case Nos.24, 25 & 26 of 2020, from which it transpires that the land in question were not purchased for agricultural purposes and as such section 16(3) of the Act, 1961 was not found applicable in the aforesaid cases.

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Hence, it would also be relevant to go through the provisions of

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Section 16(3) of the Act, 1961, which read as under:-

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“16. Restriction on future acquisition by transfer etc.

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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 cosharer 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 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).

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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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Thus, any co-sharer of the transferor or any raiyat of adjoining land is entitled to make an application before the Collector within three months of the date of registration of the sale document for transfer of the land to him on the terms and conditions contained in the said deed.

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The word land has been defined under section 2(f) of the Act, 1961 which reads as under:-

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“"land" means land which is used or capable of being used for agriculture or horticulture and includes land which is an orchard, Kharhur or pasturage or forest land or also the land perennially submerged under water or the homestead of land-holder.

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Explanation I. - "Homestead" means a dwelling house for the purpose of living or for the purpose of letting out on rent together with any courtyard, compound, attached garden, orchard and out building and includes any out building for the purpose connected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house.

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Explanation II. Land perennially submerged under water shall not include submerged in the bed of a river.”

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Thus, section 16(3) of the Act, 1961 is not applicable to a residential land. The petitioners have failed to adduce cogent evidence before this court also in support of their claim that the said land is agricultural land. It is an undisputed fact that in the registered sale deed of the said land it was written that the same was purchased by the respondent no. 5 for residential purpose. It is a well settled principle of law that a registered document is presumed to be validly executed. Otherwise also, the respondent no. 5 is a landless lady and in view of the judgment rendered by learned Division Bench of Patna High Court in the case of

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Nathuni Singh Yadav and Another Vs. State of Bihar and

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Others reported in 1997 SCC OnLine Pat 182, application for

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pre-emption will lie only when all the three parties i.e., the transferor, the transferee and the pre-emptor are landholders. It has further been held that if a landless purchaser is not provided protection against any claim made by a co-sharer or adjacent Raiyat of the land, then he/she cannot acquire any land which would put him/her to an unjust and inequitable position.

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In view of the discussions made hereinabove, there is no reason to interfere with the appellate as well as the revisional orders dated 02.09.2020 and 28.09.2022 passed by the respondent no. 3 and 2 respectively whereby the right of pre-emption claimed by the petitioners has been rejected.

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The writ petition is, accordingly, dismissed.

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(Rajesh Shankar, J.)

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Sanjay/AFR

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W.P.(C) No.907 of 2023

Nirmala Mishra v. State of Jharkhand

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Nirmala Mishra v. State of Jharkhand

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