Allowed

Raghunandan Yadav and Ors. v. S.D.O.Khagaria and Ors.

Patna HC1 Feb 2013CWJC/7724/1993

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging orders of the Deputy Collector Land Reforms. The court held the orders were untenable as they exceeded statutory authority and set aside earlier illegal orders. A direction was issued for the pre-emptor to pay registration fees to facilitate land conveyance.

What did the court decide?

Impugned orders of 8th July 1993 and 29th December 1992 set aside. Respondent pre-emptor directed to pay registration fee and effect conveyance within three months.

Raghunandan Yadav and Ors. Vs S.D.O.Khagaria… — Contract and Commercial Disputes | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.7724 of 1993

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Raghunandan Yadav, son of Late Panchu Yadav,

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Nand Kishore Yadav, son of Raghunandan Yadav, 3. Bahor Yadav, son of Raghunandan Yadav, all are residents of Village Aho-Ghat, P.S. Sahabpur Kamal, P.O. Bishunpur, Dist. Begusarai ..... .... Petitioners

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Versus

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The Sub Divisional Officer, Khagaria

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The Dy. Collector, Land Reforms, Khagaria, District Khagaria,

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Luxman Singh, son of late Banarsi Singh, R/o Village – Madhua, P.S. Khagaria, Distt. Khagaria, 4. Ganesh Yadav, son of Bira Yadav, resident of Village Aho-Ghat, P.S. Sahebpur Kamal, Distt. Begusarai

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.... .... Respondents

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====================================================== Appearance : For the Petitioners : Mr. Lala Sachindra Kumar, Advocate Mr. Ashok Kumar Sinha No.2, Advocate For the Respondent No.3: Mr. Kumar Uday Singh, Advocate

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CORAM: HONOURABLE THE CHIEF JUSTICE

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and

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HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE)

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1-2-2013 Although this petition has been heard since yesterday, the learned advocate Mr. Kumar Uday Singh appearing for the respondent no.3 is not present. This Petition under Article 226 of the Constitution is filed by the purchasers of land under Khata No.50, Khesra

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No.560, 561, 559 and 562, admeasuring 2 bighas 11 kathas 11¼ dhurs situated at Village-Madhua, Circle-Khagaria, DistrictKhagaria. The petitioners have filed this Petition to challenge the order dated 8^th July 1993 made by the Deputy Collector, Land Reforms, Khagaria.

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It appears that the petitioners purchased the above referred plots of land under three different sale-deeds executed on 7^th May 1983 for a sum of Rs.13,000.00. The said sale-deeds were registered on 6^th September 1983. Pursuant to the said sale of lands, the respondent no.3, the pre-emptor, exercised his right to preemption under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as “the Act”). The said claim was allowed by the Deputy Collector, Land Reforms. The order of the Deputy Collector, Land Reforms was confirmed by the Sub Divisional Officer and further by the Board of Revenue. The matter rested there.

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The pre-emptor appears to have neglected to get the sale document registered. The petitioners, therefore, approached the Deputy Collector, Land Reforms and claimed recovery of possession from the pre-emptor. The Deputy Collector, Land Reforms, under his order dated 29^th December 1992, upheld the claim and directed that the possession of the land be restored to the purchasers, the petitioners.

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Feeling aggrieved, the pre-emptor filed application for recall of the order dated 29^th December 1992. The said application was contested by the petitioners. The Deputy Collector, Land Reforms, under his order dated 8^th July 1993, held that the Deputy Collector, Land Reforms had no authority to

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make order contrary to the order made by the Board of Revenue. He, therefore, recalled the order dated 29^th December 1992 and directed that the provisions in Section 16(3)(iii) of the Act be followed.

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Feeling aggrieved, the purchasers have preferred this Petition. Under order dated 16^th September 1993, the Petition was ordered to be heard by the Division Bench. Since then the matter is pending before this Court.

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Learned advocate Mr. Lala Sachindra Kumar has appeared for the petitioners. He has submitted that the impugned order dated 8^th July 1993 is in the nature of an order of review of the order dated 29^th December 1992. He has submitted that under Section 16 of the Act, the Deputy Collector, Land Reforms is not vested with the powers of review. The Deputy Collector, Land Reforms, therefore, could not have made the impugned order dated 8^th July 1993 without violating the settled law. In support of his submissions, Mr. Lala Sachindra Kumar has relied upon the judgment of the Hon’ble Supreme Court in the matter of Gurdit Singh and others v. State of Punjab and others , (A.I.R. 1974 S.C. 1791) and of this Court in the matters of Sri Thakur Ram Chandra Ji & Ors. vs. The State of Bihar and others , (1976 BBCJ 647); and of Smt. Saraswati Devi vs. The State of Bihar and others , (1984 PLJR 284).

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We have no hesitation in agreeing with the above referred judgments. It is well settled law that the power of review is the creation of law and does not inhere in a Court of law or an authority exercising quasi judicial powers. We also have no hesitation in holding that the impugned order dated 8^th July 1993 amounts to order of review of the earlier order dated 29^th

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December 1992 made by the predecessor in office. But, it is equally true that the order dated 29^th December 1992 made by the Deputy Collector, Land Reforms also was made without the authority of law. The Deputy Collector, Land Reforms could not have made order of restitution of possession in favour of the purchasers who had lost before all the authorities including the Board of Revenue. The said order amounts to recall of the order made by the superior authority, the Board of Revenue.

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This Court, exercising power of judicial review under Article 226 of the Constitution, will not interfere with an order, which if set aside, will revive an illegal order made earlier.

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Section 16(3)(i) of the Act confers power of preemption upon a person who is a co-sharer or an adjoining raiyat. Clause (iii) thereof empowers the Collector to issue direction to the transferee (the purchaser) to convey the land in favour of the applicant (the pre-emptor) by executing and registering a document of transfer within the period specified. The said clause further provides that in case of failure of the transferee to convey the land to the pre-emptor, the pre-emptor will have remedy under Order 21, rule 34 CPC. Rule 19 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963 (hereinafter referred to as “the Rules”) provides for procedure of transfer of land under Section 16(3) of the Act. Subrule (5) thereof provides that in case the claim for pre-emption is allowed and the transferee (the purchaser) is directed by the Collector to convey the land in favour of the applicant (the preemptor) by executing and registering a document of transfer, the applicant (pre-emptor) shall be required to pay the registration fee. Neither the Act nor the Rules provide for the consequence in

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case the pre-emptor fails to pay the registration fee. In our opinion, although the sub-rule (5) employs the term “shall”, the provision is directory and not mandatory. Failure to pay the registration fee would not entail cancellation of the order made under Section 16(3)(iii) of the Act.

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In the present case, the Deputy Collector, Land Reforms while making order dated 29^th December 1992, took upon him the jurisdiction not vested by the statute and virtually set aside the order of the Board of Revenue. But then, in absence of any specific provision made in the Act or under the Rules, a party aggrieved would not be rendered remediless. In our opinion, the only remedy available to the petitioners was before the Civil Court. The petitioners, instead of approaching the Civil Court for recovery of money and for direction to the pre-emptor to pay for the registration fee, approached the Deputy Collector, Land Reforms, an authority below the Board of Revenue, who in turn made the order dated 29^th December 1992 to set the order of the Board of Revenue at naught.

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In above view of the matter, we hold that neither the order dated 8^th July 1993 nor the order dated 29^th December 1992 was legal or valid. Both the orders were made by the concerned authority without the authority of law.

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For the aforesaid reasons, we set aside the impugned order dated 8^th July 1993 and also the order dated 29^th December 1992, both made by the Deputy Collector, Land Reforms, Khagaria.

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We direct the respondent no.3, the pre-emptor, to pay the registration fee in accordance with sub-rule (5) of Rule 19 of the Rules to facilitate the conveyance of the land in his

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favour. Such conveyance should be executed and registered within three months from today. In the event the respondent no.3 fails to pay for the registration fee or to facilitate the conveyance of the land in question, the petitioners will be at liberty to pursue the remedy available under the law.

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The Petition is allowed to the aforesaid extent.

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Registry will send copy of this order to the respondent nos. 2 and 3.

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(R.M. Doshit, CJ)

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(Ahsanuddin Amanullah, J)

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Pawan/-

Raghunandan Yadav and Ors. v. S.D.O.Khagaria and Ors.

Case brief

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Raghunandan Yadav and Ors. v. S.D.O.Khagaria and Ors.

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