Allowed

Chameli Devi and Anr. v. the State of Bihar and Ors.

Patna HC13 May 2013L.P.A/451/1999

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a Single Judge's order dismissing a writ petition. The Court held that pre-emption claims should be examined based on the date of registration, not subsequent construction, and affirmed the Additional Collector's view that the land was not agricultural homestead suitable for agriculture.

What did the court decide?

The Letters Patent Appeal was allowed, the Single Judge's order was set aside, the Board of Revenue's order was quashed, and the Additional Collector's order was affirmed.

Chameli Devi and Anr. Vs the State of Bihar and Ors. — Land Acquisition | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.451 of 1999 In

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Civil Writ Jurisdiction Case No. 7210 of 1997 With

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Interlocutory Application No. 5196 of 1999

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======================================================

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Chameli Devi, wife of late Yogi Sah.

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Kapildeo Sah, son of late Yogi Sah.

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Both residents of Vill. Raghunathpur, P.S. Paroo, Dist. Muzaffarpur.

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.... Writ Petitioners .... Appellants Versus

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The State of Bihar.

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Additional Member, Board of Revenue, Bihar, Patna.

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Collector, Muzaffarpur.

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Addl. Collector, Muzaffarpur.

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Dy. Collector, Land Reforms, Muzaffarpur (West).

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Dinesh Singh.

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Umesh Singh.

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Ramesh Singh.

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Awadesh Singh. sons of late Yogendra Singh. Residents of Vill. and P.O. Raghunathpur, P.S. Paroo, Dist. Muzaffarpur

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….Respondents 1^st Set

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Kameshwar Singh, son of Raghunath Singh and Nati of late Gaya Singh, resident of Vill. Raghunathpur, P.O. Paroo, Dist. Muzaffarpur. ……Respondent 2^nd Set

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Fuljhari Kumar, minor D/o late Yogi Sah under guardian of Chameli Devi, mother and guardian.

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Deoki Kumar, daughter of late Yogi Sah, minor under the guardian of Mostt. Chameli Devi, mother and guardian. Both residents of Vill. Raghunathpur, P.S. Paroo, Dist. Muzaffarpur.

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Smt. Asha Devi, wife of Ram Nath Sah and daughter of late Yogi Sah resident of Vill Dauchapur, P.S. Bhagwanpur, Distt. Vaishali.

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.... .... Respondents 3^rd Set

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====================================================== Appearance :

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For the Appellant/s : Mr. Binod Kumar,

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Mr. Birendra Kumar Tiwary and

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Patna High Court LPA No.451 of 1999 dt.13-05-2013

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Mr. Amresh Kumar, Advocates Mr. Abhimanyu Sharma, Mr. Deepak Kumar Sinha, Mr. Sanjay Kumar Singh, Mr. Amrendra Kumar, Mr. Dilip Kumar and Mr. (SC16), Advocates

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For the Respondent/s : Mr. Uma Kant Tiwary,

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=========================================================== CORAM: HONOURABLE MR. JUSTICE S.N. HUSSAIN and HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT

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(Per: HONOURABLE MR. JUSTICE S.N. HUSSAIN)

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Date: 13-05-2013

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Heard learned counsel for the petitioners, learned counsel for the State of Bihar as well as learned counsel for the private respondent nos. 11 and 12. No one appears on behalf of the other respondents although notices had been validly served upon them and the name of their counsel is appearing on the daily cause list and the case had been adjourned for today specially for their appearance.

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I.A. No.5196 of 1999 has been filed on behalf of the appellants for condoning 23 days delay in filing of the Letters Patent Appeal. Considering the averments made by learned counsel for the appellants as well as considering the fact that this appeal has already been admitted for hearing, this interlocutory application is allowed and delay in filing of

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Patna High Court LPA No.451 of 1999 dt.13-05-2013

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the Letters Patent Appeal is condoned.

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This Letters Patent Appeal has been filed by the purchasers (petitioners) challenging order dated 22.02.1999 passed by the learned Single Judge dismissing C.W.J.C. No.7210 of 1997 filed by the petitioners although it had been found in that order that the order of Additional Collector, which was in favour of the appellants, appeared to be justified.

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This case has chequered history as the petitioners had purchased the land in question from its original owner, whereafter the private respondents filed Ceiling Case No.13 of 1980-81 under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as „the Act‟ for the sake of brevity) claiming to be the pre-emptors, being adjacent raiyats.

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The claim of pre-emptors was rejected by the Deputy Collector Land Reforms (hereinafter referred to as „the D.C.L.R.‟ for the sake of brevity), Muzaffarpur West vide order dated 14.10.1981. Against the said order the preemptors filed Ceiling Appeal No.40 of 1981-82, whereafter the Collector, Muzaffarpur vide his order dated 18.01.1984

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Patna High Court LPA No.451 of 1999 dt.13-05-2013

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remanded the matter to the D.C.L.R. after setting aside his impugned order. Thereafter D.C.L.R. again considered Ceiling Case No.13 of 1980-81 and finally allowed the claim of pre-emptors vide order dated 12.08.1986. Against the order of D.C.L.R., petitioners (purchasers) filed Ceiling Appeal No.05 of 1986 which after due consideration was allowed by the Additional Collector, Muzaffarpur vide order dated 22.03.1993 setting aside order of the D.C.L.R. The preemptors challenged the order of Additional Collector in Revision Case No.278 of 1993 before the Board of Revenue and the Additional Member, Board of Revenue vide order dated 29.03.1997 allowed the revision of pre-emptors and set aside the order of Additional Collector which was in favour of purchasers ( writ petitioners).

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The purchasers being aggrieved by the order of Additional Member, Board of Revenue filed C.W.J.C. No.7210 of 1997 which was heard by learned Single Judge, who dismissed the writ petition vide order dated 22.02.1999 after arriving at the following findings:-

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4. “ From the order of the Additional Member, Board of Revenue, it appears that the petitioners are not the raiyats to the vended land nor the land was recoded as homestead whereas, the claim of the preemptor to be adjoining raiyat was dismissed. The

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Patna High Court LPA No.451 of 1999 dt.13-05-2013

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petitioners are basing their claim on the basis of certain construction made on the vended land after purchase. The Additional Member, Board of Revenue, set aside the order of the Additional Collector, holding that the claim of adjoining raiyat has to be examined on the basis of date of registration of the document. In this case, admittedly, whatever construction is claimed to be made, was done after purchase.

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5. Therefore, in my view, the order of the Additional Collector appears justified. Accordingly, this writ application is dismissed.”

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It transpires that against the aforesaid order the instant L.P.A. has been filed by the purchasers (writ petitioners) on various grounds, which have been vehemently contested by learned counsel for the respondent-authorities.

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Considering the arguments of learned counsel for the parties and the materials on record it is quite apparent that learned Additional Collector in his order dated 22.03.1993 passed in Ceiling Appeal No.05 of 1986 had specifically dealt with specific pleadings and materials on record and had found that the land in question was situated in a thickly populated area and some portion of the land in dispute was even used for commercial purposes including shop. In the said circumstances the aforesaid land would not come under the definition of section 2F of the Act. This

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Patna High Court LPA No.451 of 1999 dt.13-05-2013

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aspect of the matter had been completely ignored by the authorities and they also did not consider the small size of the land in question which cannot be useful for any agricultural purpose and hence the purchasers had purchased it for residential purpose as was also clear from the deed of purchase.

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The Additional Member, Board of Revenue while setting aside the order of Additional Collector passed in appeal, had merely relied upon the order of D.C.L.R. although there was nothing to show that the said aspect of the matter had ever been considered by the D.C.L.R. and if there was a bonafide doubt with respect thereto, the D.C.L.R. should have made a fresh inspection on the said point when it was remanded to him for the first time by the Collector. Furthermore, the Additional Member, Board of Revenue had merely assumed that the documents showed that the land was homestead but he had failed to consider as to whether the land in question was a homestead of a landholder ever used for agricultural purposes, which is the requirement of law and if the same is not proved, the provision of section 2F of the Act would not be attracted and the pre-emptors would not be entitled to raise any claim under section 16(3) of the Act.

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Patna High Court LPA No.451 of 1999 dt.13-05-2013

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In the said circumstances, the order of Additional Collector is legal and proper, whereas the order of Additional Member, Board of Review is not based on principles of law as detailed above. Hence, learned Single Judge was not justified in dismissing the writ petition filed by the purchasers and in affirming the claim of the pre-emptors.

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Accordingly, this Letters Patent Appeal is allowed, the impugned order of learned Single Judge dated 22.02.1999 passed in C.W.J.C. No.7210 of 1997 is set aside, the order of Additional Member, Board of Revenue, Patna dated 29.03.1997 passed in Revision Case No.278 of 1993 is hereby quashed and the order of Additional Collector dated 22.03.1993 passed in Ceiling Appeal No.05 of 1986 is hereby

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affirmed.

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(S.N. Hussain, J)

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(Ahsanuddin Amanullah, J)

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Anjani/-

Chameli Devi and Anr. v. the State of Bihar and Ors.

Case brief

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Chameli Devi and Anr. v. the State of Bihar and Ors.

Case brief

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