Allowed

Roshan Prasad Mandal @ SHASHIand v. the State of Bihar and Ors.

Patna HC22 Jul 2015CWJC/3729/1999

Case brief

AI extract

What is this about?

The Patna High Court allowed three writ petitions challenging pre-emption orders. The court distinguished a cited Full Bench case due to factual differences and set aside the appellate and revisional orders which erroneously favored pre-emptors based solely on the sale-deed description of land as agricultural, overriding the S.D.O.'s finding of residential nature.

What did the court decide?

The orders of the Additional Collector and Additional Member, Board of Revenue dated 03-04-1998 and 10-03-1999 were set aside and the writ petitions were allowed.

Roshan Prasad Mandal @ SHASHIand Vs the State of Bihar and Ors. — Land Acquisition | Patna HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No. 3729 of 1999

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======================================================== 1. Roshan Prasad Mandal @ ShashiBhushan Mandal, 2. Indu Bhushan Mandal 3. Rajeev Bhushan Mandal 4. Sanjay Bhushan Mandal All Sons of Late Lakhan Lal Mandal, residents of Village: Bharko, P.S.: Amarpur, District: Banka. .... .... Petitioners Versus 1. The State of Bihar 2. The Additional Member Board of Revenue, Bihar, Patna. 3. The Additional Collector, Banka. 4. The Additional Collector, Bhagalpur. 5. The Sub-Divisional Magistrate, Banka. .... .... Respondent 1^st Set. 6. Dip Narayan Mahton S/o Late Ramadhari Mahton 7. Sanyogita Devi W/o Late Nageshwar Mahton 8. Siyaram Prasad S/o Late Jagdish Mahton 9. Mukesh Kumar 10.Rakesh Kumar 11.Amit Kumar, all sl. No. 9 to 11 Sons of Late Bishnudeo Prasad 12.Mohan Mahton S/o Late Kafru Mahton 13.Parmanand Mahton 14.Vikash Mahton 15.Sikandara Prasad Mahton 16.Deepak Mahton 17.Neeraj Mahton, all sl. no. 13 to 17 Sons of Late Hiridaya Mahton. 18.Kailash Mahton 19.Sushil Mahton, both 18 & 19 Sons of Nand Kishore Mahton 20.Yugal Mahton, Son of Late Nafru Mahton All sl. no. 6 to 20 residents of Village: Bharko, P.S. Amarpur, District Banka (Pre-emptor) .... .... Respondents 2^nd Set. 21.Sk. Sraffat S/o Late Sk. Rashid 22.Sk. Maqbool 23.Sk. Mohabbat, both 22 & 23 Sons of Late Sk. Kapoor 24.Sk. Mianjar S/o Late Sk. Anpi. All sl. no. 21 to 24 residents of Village: Bharko, P.S. Amarpur, District : Banka (Vendors). .... .... Respondents 3^rd Set. with ======================================================== Civil Writ Jurisdiction Case No. 3730 of 1999 ======================================================== 1. Roshan Prasad Mandal @ ShashiBhushan Mandal, 2. Indu Bhushan Mandal

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Patna High Court CWJC No.3729 of 1999 dt. 22-07-2015

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3.Rajeev Bhushan Mandal

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4. Sanjay Bhushan Mandal All Sons of Late Lakhan Lal Mandal, residents of Village: Bharko, P.S.: Amarpur, District: Banka. .... .... Petitioners Versus 1. The State of Bihar 2. The Additional Member Board of Revenue, Bihar, Patna. 3. The Additional Collector, Banka. 4. The Additional Collector, Bhagalpur. 5. The Sub-Divisional Magistrate, Banka. .... .... Respondent 1^st Set. 6. Dip Narayan Mahton S/o Late Ramadhari Mahton 7. Sanyogita Devi W/o Late Nageshwar Mahton 8. Siyaram Prasad S/o Late Jagdish Mahton 9. Mukesh Kumar 10. Rakesh Kumar 11. Amit Kumar, all sl. No. 9 to 11 Sons of Late Bishnudeo Prasad 12. Mohan Mahton S/o Late Kafru Mahton 13. Parmanand Mahton 14. Vikash Mahton 15. Sikandara Prasad Mahton 16. Deepak Mahton 17. Neeraj Mahton, all sl. no. 13 to 17 Sons of Late Hiridaya Mahton. 18. Kailash Mahton 19. Sushil Mahton, both 18 & 19 Sons of Nand Kishore Mahton 20. Yugal Mahton, Son of Late Nafru Mahton All sl. no. 6 to 20 residents of Village: Bharko, P.S. Amarpur, District Banka (Pre-emptor) .... .... Respondents 2^nd Set. 21. Sk. Sraffat S/o Late Sk. Rashid 22. Sk. Maqbool 23. Sk. Mohabbat, both 22 & 23 Sons of Late Sk. Kapoor 24. Sk. Mianjar S/o Late Sk. Anpi. All sl. no. 21 to 24 residents of Village: Bharko, P.S. Amarpur, District : Banka (Vendors). .... .... Respondents 3^rd Set. .... .... Respondent/s with ======================================================== Civil Writ Jurisdiction Case No. 3911 of 1999 ======================================================== 1. Roshan Prasad Mandal @ ShashiBhushan Mandal, 2. Indu Bhushan Mandal 3. Rajeev Bhushan Mandal 4. Sanjay Bhushan Mandal All Sons of Late Lakhan Lal Mandal, residents of Village: Bharko, P.S.: Amarpur, District: Banka. .... .... Petitioners

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Patna High Court CWJC No.3729 of 1999 dt. 22-07-2015

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Versus
1.The State of Bihar
2.The Additional Member Board of Revenue, Bihar, Patna.
3.The Additional Collector, Banka.
4.The Additional Collector, Bhagalpur.
5.The Sub-Divisional Magistrate, Banka.
.... .... Respondent 1st Set.
6.Dip Narayan Mahton S/o Late Ramadhari Mahton
7.Sanyogita Devi W/o Late Nageshwar Mahton
8.Siyaram Prasad S/o Late Jagdish Mahton
9.Mukesh Kumar
10.Rakesh Kumar
11.Amit Kumar, all sl. No. 9 to 11 Sons of Late
Bishnudeo Prasad
12.Mohan Mahton S/o Late Kafru Mahton
13.Parmanand Mahton
14.Vikash Mahton
15.Sikandara Prasad Mahton
16.Deepak Mahton
17.Neeraj Mahton, all sl. no. 13 to 17 Sons of Late
Hiridaya Mahton.
18.Kailash Mahton
19.Sushil Mahton, both 18 & 19 Sons of Nand Kishore
Mahton
20.Yugal Mahton, Son of Late Nafru Mahton
All sl. no. 6 to 20 residents of Village: Bharko,
P.S. Amarpur, District Banka (Pre-emptor)
.... .... Respondents 2nd Set.
21.Sk. Sraffat S/o Late Sk. Rashid
22.Sk. Maqbool
23.Sk. Mohabbat, both 22 & 23 Sons of Late Sk. Kapoor
24.Sk. Mianjar S/o Late Sk. Anpi.
All sl. no. 21 to 24 residents of Village: Bharko,
P.S. Amarpur, District : Banka (Vendors).
.... .... Respondents 3rd Set.
========================================================
Appearance :
(In CWJC No. 3729 of 1999)
For the Petitioners :Mr. Hemendra Prasad Singh, Sr.Adv.
 Mr. Arbind Kumar, Adv.
For the Respondents :Mr. Umesh Prasad Singh, Sr.Adv.
 Mr. Raghwendra Kumar Singh, Adv.
(In CWJC No. 3730 of 1999)
For the Petitioners :Mr. Hemendra Prasad Singh, Sr.Adv.
 Mr. Arbind Kumar
 For the Respondents :Mr. Umesh Prasad Singh, Sr.Adv.
 Mr. Raghwendra Kumar Singh, Adv.
(In CWJC No. 3911 of 1999)
For the Petitioners :Mr. Hemendra Prasad Singh, Sr.Adv.
 Mr. Arbind Kumar, Adv.
For the Respondents :Mr. Umesh Prasad Singh, Sr.Adv.

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Patna High Court CWJC No.3729 of 1999 dt. 22-07-2015

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Mr. Raghwendra Kumar Singh, Adv.
========================================================
CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
CAV JUDGMENT
 Date: 22-07-2015
In all the aforesaid three writ
petitions, common orders, passed by the Member,
Board of Revenue i.e. revisional court and
Additional Collector i.e. appellate court, are
under-challenge and as such, with the consent of
the parties, all the aforesaid three writ
petitions were heard together and are being
disposed of by this common order.

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2. Petitioners purchased land
appertaining to Khata No. 71 Plot No. 1196 and
Plot No. 1197 measuring an area of 19 decimals and
land appertaining to Khata No. 219 Plot No. 1198
measuring an area of 4 ½ decimals, Mauza Bharko
through three registered sale-deeds. After the
deed was registered, the respondents 2nd set
claiming right of pre-emption preferred three
applications, vide Case No. 3/1970-71, 5/1970-71 &
6/1970-71 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‟) in the court of Sub-Divisional

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Officer, Banka (hereinafter referred to as the
„S.D.O.‟).

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3. The pre-emption application was filed
in compliance with the provision of the Act and as
such, notices were issued. In the said pre-
emption case, petitioners raised an objection that
the purchased land was not agriculture land since
on the purchased land, there were houses. A plea
was taken that land was purchased for residential
purpose not for agriculture purpose. Before the
S.D.O., from the side of petitioners, jamabandi
khatiyan was produced to show that the nature of
land was residential. The learned Sub-Divisional
Officer by its order dated 11-06-1984 rejected all
the three pre-emption applications by a common
order.

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4. The pre-emptor (respondents 2nd set)

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preferred three appeals before the Additional
Collector, Banka against the order of Sub-

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Divisional Officer, vide Miscellaneous Appeal No.
29 of 1984-85, 30 of 1984-85 and 31 of 1984-85.
All the three appeals were heard together and
the learned Additional Collector, Banka by its
order dated 02-08-1984 rejected all the three

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appeals and affirmed the order passed by the
S.D.O.
5. Thereafter, the pre-emptor
(respondents 2ndset) preferred revision
applications before the learned Member, Board of
Revenue, Bihar, Patna and the learned Additional
Member, Board of Revenue too rejected the
revisions by its order dated 15-12-1984. Order
of the Additional Member, Board of Revenue dated
15-12-1984 is required to be quoted here-in-

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below:-

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“Heard. Perused and examined the
Memo of Revision petition along with the
copy of orders of Lower Court dated
2.8.84.

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There is no merit in the petition.
The prayer for admission is rejected.
This applied to Case Nos. 405 and 406 of
1984 as these cases were disposed of by a
common order as analogous.”

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6. The pre-emptor (respondents 2nd set)
dissatisfied with the order of the revisional
court approached this Court by filing three writ
petitions, vide C.W.J.C. No. 948 of 1985, 953 of
1985 and 954 of 1985. This Court considering the
fact that the appellate court as well as
revisional court had rejected the appeals and
revisions respectively in a cryptic manner, by

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judgment dated 5th April, 1996 allowed the writ
petitions and remitted back the matter to the
appellate authority with a direction to pass order
afresh after hearing the parties and considering
the Lower Court Records.

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7. Thereafter, the matter was heard by

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the Additional Collector, Banka. It appears that
the date on which the record on remand was
received, earlier sub-division Banka had already
come into existence as a district. The learned
Additional Collector on remand summoned the record
and after hearing the parties, this time allowed
the appeals in favour of pre-emptors, vide Appeal
Case No. 29 of 1984-85, 30 of 1984-85 and 31 of
1984-85 only on the ground that in the sale-deeds
nature of land was described as agriculture land.

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8. Against the order of the appellate
court, the petitioners filed three revisions, vide
Revision Case No. 83 of 1998, 84 of 1998 and 85 of
1998 and the Additional Member, Board of Revenue
finally by order dated 10-03-1999 dismissed all
the three revisions and affirmed the order of the
Additional Collector.

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9. The petitioners aggrieved with order

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of the Additional Collector, which was passed on
remand and order of the Additional Member, Board
of Revenue, approached this Court invoking its
writ jurisdiction under Article 226 of the
Constitution of India.

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10. Before proceeding, it would be
appropriate to indicate that C.W.J.C. No. 3729 of
1999 is in relation to Case No. 3 of 1970-71,
C.W.J.C. No. 3730 of 1999 is in relation to Case
No. 5 of 1970-71 and C.W.J.C. No. 3911 of 1999 is
in relation to Case No. 6 of 1970-71.

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11. According to the writ petitions, it
is the case of the petitioners that land in
dispute was purchased by petitioners from the
ancestors of respondents 3rd set on 09-03-1970 on
a consideration amount of Rs. 8,540/-for
construction of houses as land in question was
homestead land, over which, the houses of the
venders were already constructed, not in good
condition, at the time of purchase. After
purchasing the land, they made pucca construction
over the same and they are residing their with
their family.

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petitioners that there was a revisional survey.
The survey authority had found the houses of the
petitioners over the disputed land.

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13. The petitioners further pleaded that
on purchase of land through three sale-deeds, they
had become adjoining rayats. After the land in
question were purchased by the petitioners through
registered sale-deeds, the respondents 2nd set
claiming right of pre-emption filed petitions
under Section 16 (3) of the Act.

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14. The case of respondents 2nd set is
that land in question was earlier recorded in the
name of one Chethru Nadaf. After the death of
their father, they become raiyat of purchased
lands. The ancestor of respondents 2nd set
purchased some of the land of aforesaid khata and
plot through registered sale-deeds in the year
1943 and since then they came into possession and
after the death of their father, they become
raiyat of the purchased land. It was claimed that
since the respondents 2nd set were adjoining raiyat
of land in question, they were having right of
pre-emption over the land in question.

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15. Sri Hemendra Prasad Singh, learned

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senior counsel, who was assisted by Sri Arvind
Kumar, learned counsel for petitioners
emphatically argued that on the basis of record,
which were produced before the S.D.O. in aforesaid
pre-emption cases, it was established that the
transferred land was not agriculture land, rather
it was a residential land and as such, the learned
S.D.O. on the basis of record, had rightly
rejected the claim of pre-emption and all the
three pre-emption petitions were rejected.

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16. In all appeals preferred by
respondents 2nd set before the appellate authority
i.e. Additional Collector, the appellate authority
at the first instance, concurring with the finding
of the learned S.D.O. that land in question was
being used for dwelling house with courtyard,
rejected the appeals preferred by the respondents
2nd set. The revisional court i.e. Additional

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Member, Board of Revenue too rejected all the
three revision petitions, which were filed by the
respondents 2nd set, however; the revisional court
had not assigned detail reason for rejecting the
petitions and as such, a Bench of this Court in
the writ petitions i.e. C.W.J.C. No. 948 of 1985,

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953 of 1985 and 954 of 1985 by its judgment dated
5th April, 1996 set aside the order of the
appellate authority as well as the revisional
authority.

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17. He submits that the order of the

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revisional court was primarily interfered with on
the ground that it was non-speaking and cryptic.
However, since the matter was remitted back to the
appellate authority for passing an order afresh,
after hearing the parties on the basis of
materials on record, learned Additional Collector
on remand was required to examine the record in
its right perspective.

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18. He submits that once the Additional

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Collector who had earlier rejected the appeal
holding that the land in question was not
agriculture on the basis of record, the learned
Additional Collector at subsequent stage i.e. on
remand was not at all entitled to record a
different finding. Similarly, he has assailed the
order of the revisional court.

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19. In sum and substance, it has been

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argued that the nature of land from the cadestral
survey report had already changed and in the

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record, created in a proceeding, it was
categorically held that the land in question was
not agriculture land, rather there were dwelling
houses with courtyard and as such, there was no
application of Section 16(3) of the Act in the

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land in question.

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20. He has further argued that the land
in question was purchased by petitioners in the

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year 1970 itself and at the time of purchase, over
the land in question, there was house in a
dilapidated condition. Immediately after

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purchasing the land, the petitioners constructed
their houses and they are residing in their houses
with their family since long and as such, he
submits that order of the appellate court, which
was passed on remand as well as order of the
revisional court are fit to be set aside.

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21. Sri Umesh Prasad Singh, learned
senior counsel, who was assisted by Sri Raghwendra
Kumar Singh, learned counsel for the respondents
2nd set (pre-emptors) has vehemently opposed the
prayer of the petitioners. He has emphasized that
in the sale-deed itself, there was assertion that
land in question was agricultural land.

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22. He submits that once in the sale-deed
itself, there was recital regarding the nature of
land, the submission made by learned senior
counsel for the petitioners that it was dwelling
house with courtyard is fit to be rejected.

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23. He has further tried to persuade the
Court that in view of judgment of the Full Bench

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of this Court reported in AIR 1975 PATNA 119
(F.B.) (Fakir Mohammad –vs.- Salahuddin and
others), the orders passed by the appellate court
as well as the revisional court are not required
to be interfered with.

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24. Besides hearing learned counsel for
the parties, I have also perused the materials
available on record. Before proceeding, it would
be appropriate to observe that the first court
i.e. Sub-Divisional Officer‟s court, where pre-
emption cases were filed, vide case nos. 3 of
1970-71, 5 of 1970-71 and 6 of 1970-71, the
learned S.D.O. had categorically noticed that even
over the land of pre-emptors, there was a dwelling
house.

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25. It was noticed that from plot no.
1196, the father of the respondents 2nd set (pre-

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emptors) had purchased some of the land measuring 0.19 decimals. In the chakbandi khatiyan of the said land, it was mentioned that “ edku e; lgu ” i.e. dwelling house with courtyard.

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26. The learned S.D.O. had also noticed

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that in the area of other plots also, there were houses. In respect of land in question i.e. plot no. 1196, 1197 and 1198, the learned S.D.O. had noticed that in the certified copy of the chakbandi khatiyan in the column of nature of land, it was mentioned as “ edku e; lgu ” (Dwelling House with courtyard). Once the first court i.e. the Sub-Divisional Officer had noticed the aforesaid fact that nature of land was “ edku e; lgu ” (Dwelling House with courtyard), the appellate authority on remand has committed serious error in deciding the appeals in favour of the respondents 2^nd set (pre-emptors) only on the ground that in the sale-deeds, nature of land was mentioned as agriculture land. Whereas, the purchaser had taken a specific stand that due to mistake of deedwriter, such error had occurred in the sale-deed and instead of mentioning the nature of land as “Dwelling House with courtyard”, it was

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incorrectly mentioned as “Agriculture Land”.

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27. The order of the Sub-Divisional

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Officer, passed long back on 11-06-1984, was very
specific on this issue, which was based on
documents brought on record.

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28. In this case, land was purchased in
the year 1970 itself. Right from very beginning,

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it is the stand of the petitioners-purchasers that

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after the purchase of the land in question, they

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have constructed their houses and they are living
with their family over the land in question.

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29. In view of the definite finding
recorded by the Sub-Divisional Officer in respect
of nature of land, which is obviously not

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agriculture land, the Court is of the opinion that
on remand the appellate authority has committed

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serious error in deciding the appeal in favour of

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the respondents 2nd set (pre-emptors) only on the

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ground that in the sale-deeds, nature of land was
mentioned as agriculture land. Similar mistake
has been committed by the revisional court.

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30. Besides aforesaid fact it is also
necessary to be recorded that after the order of
revisional court, the petitioner approached this

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Court by filing aforesaid writ petitions and a
bench of this Court by its order dated 2.2.2000
directed for maintaining status quo. Subsequently
the writ petitions were admitted for hearing by
order dated 8.5.2000. While admitting the writ
petitions it was directed that interim order dated
2.2.2000 shall continue till disposal of this

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case. It is not the case of respondent 2nd set
(pre-emptor) that possession of land in question
has been delivered to them. Meaning thereby that
after the purchase of land since the year 1970 the
purchasers are in possession over the land in
question. It is also case of the

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purchasers/petitioners that after purchase they
constructed their houses over the land in question
and they are residing in their houses with their
family. Accordingly, after about 35 years (Thirty
Five Years) it would not be just and proper to
pass an order for reconveying the land to the pre-
emptors.

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31. So far as case of Fakir Mohammad
(supra) is concerned, the said case was decided on
the basis of facts and circumstances, which is not
similar to the present case. In the said case,

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the vender after executing sale-deed had cancelled
the sale-deed. Therefore, in view of the facts
and circumstances of the present case, the
respondent 2nd set (pre-emptor) may not get any
benefit from the Fakir Mohammad’s case (supra).

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32. In view of the aforesaid facts and

¶106

circumstances, both the orders i.e. order dated
03-04-1998 passed in Appeal Case Nos. 29 of 1984-
85, 30 of 1984-85 and 31 of 1984-85 and order
dated 10-03-1999 passed in Revision Case Nos. 83
of 1998, 84 of 1998 and 85 of 1998 are, hereby,
set aside.

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33. All the aforesaid three writ

¶108

petitions are allowed.

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(Rakesh Kumar, J.)

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Anay

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Roshan Prasad Mandal @ SHASHIand v. the State of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

Roshan Prasad Mandal @ SHASHIand v. the State of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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