Writ Petition (Civil) No. 2364 of 2008
In the matter of an application under Article 226 of the Constitution of
India
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Babuni Mahto ......Petitioner
Versus
1. The State of Jharkhand
2. The Member Board of Revenue, Jharkhand
3. The Additional Collector, Hazaribagh
4. The Deputy Collector, Land Reforms, Hazaribagh
5. Radhika Prasad Mehta
6. Baleshwar Prasad Mehta
7. Suresh Prasad Mehta
8. Radho Devi
9. Indrajit Kumar Mehta
10.Dilip Kumar Mehta
11.Ashok Kumar Mehta
12.Chitlal Mahto ……Respondents
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For the Petitioner : Mr. Sunil Kumar Sinha, Advocate
For the State : J.C. to S.C. (L & C)
For private respondents : None
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Per: HON'BLE MR. JUSTICE D.N.PATEL
Dated: 15th April, 2010
D.N.Patel, J. The present writ petition has been preferred, challenging the
order, passed by the Member, Board of Revenue, Jharkhand, Ranchi, dated
22nd January, 2008 in Revision Case No. 18 of 2007, whereby, an order,
passed by the Additional Collector, Hazaribagh, dated 24th December, 2004
in Land Ceiling Appeal No. 10 of 2004, has been quashed and set aside and
the order, passed by the Deputy Collector, Land Reforms, Hazaribagh, dated
5th June, 2004 in Land Ceiling Case No. 1 of 2004 has been upheld.
2. Learned counsel appearing for the petitioner submitted that the
Deputy Collector, Land Reforms, Hazaribagh, has passed an order dated 5th
June, 2004, upon an application, preferred by the petitioner under Section
16(3) of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of
Surplus Land) Act, 1961 (hereinafter to be referred as “the Act, 1961” for
the sake of brevity), whereby, the petitioner was claiming a right of pre-
emption. It is contended by the learned counsel for the petitioner that the
petitioner is an adjacent raiyat and co-sharer of the land, in question, and,
therefore, the respondent cannot sell away the property to a third party,
without giving an opportunity to the petitioner to purchase the land, in
2.
question, and, therefore, an application was preferred by the petitioner
before the Deputy Collector, Land Reforms, Hazaribagh, which was
numbered as Land Ceiling Case No. 1 of 2004. The said application,
preferred by the petitioner, was dismissed and it was held that the land, in
question, is not an agricultural land and, therefore, the right of pre-emption
is never accrued to the petitioner. This order was passed on 5th June, 2004,
which is at Annexure 2 to the memo of petition. Against this order, an
appeal was preferred by the petitioner under Section 30 of the Act, 1961
before the Additional Collector, Hazaribagh, which was allowed vide order
dated 24th December, 2004, which is at Annexure 3 to the memo of petition,
and the order, passed by the Deputy Collector, Land Reforms, Hazaribagh,
dated 5th June, 2004, was quashed and set aside. Against this order, a
revision application, which was numbered as Revision Case No. 18 of 2007,
was preferred by the respondents, which was allowed by the Member, Board
of Revenue, Jharkhand, vide order dated 24th January, 2008. It is submitted
by the learned counsel for the petitioner that the order passed by the
Member, Board of Revenue, Jharkhand, in Revision Case No. 18 of 2007 is
absolutely against the provisions of law, mainly for the reason that under
Section 32 of the Act, 1961, the limitation period for preferring the revision
application is thirty days whereas the revision was preferred after
approximately three years and there was no separate application for
condonation of delay. No notice was ever issued prior to condonation of
delay and while allowing the revision application, in one line the delay has
been condoned and, therefore also, the impugned order, passed by the
Member, Board of Revenue, Jharkhand, deserves to be quashed and set
aside. It is also submitted by the learned counsel for the petitioner that no
reasons have been assigned by the Member, Board of Revenue, Jharkhand,
while allowing the revision application, filed by the respondents. The said
order is, therefore, a non-speaking order. It is also submitted by the learned
counsel for the petitioner that after the order, passed by the Additional
Collector, Hazaribagh, vide Annexure 4 to the memo of petition the land, in
question, was registered in favour of the present petitioner on 8th December,
2006. Thus, the order passed by the Additional Collector, Hazaribagh
3.
(Annexure 3 to the memo of petition) has already been executed by a
document at Annexure 4 to the memo of petition, which is dated 8th
December, 2006 i.e. much prior to the decision, delivered by the Member,
Board of Revenue, Jharkhand, in the revision application. This aspect of the
matter has also not been properly appreciated by the revisional authority.
Nonetheless, it is fairly submitted by the learned counsel for the petitioner
that if the revisional authority has arrived at a decision that the order, passed
by the Additional Collector, Hazaribagh, is totally a non-speaking order,
then the revisional authority ought to have remanded the matter for a fresh
decision by the Additional Collector, Hazaribagh, but, instead of doing so,
an order passed by the Deputy Collector, Land Reforms, Hazaribagh, has
been upheld, without assigned any reason, worth the name, which is an error
apparent on the face of the record and, hence also, the order, passed by the
Member, Board of Revenue, Jharkhand, deserves to be quashed and set
aside.
3. It is further vehemently submitted by the learned counsel for the
petitioner (original applicant before the Deputy Collector, Land Reforms,
Hazaribagh, under Section 16(3) of the Act, 1961) that in the earlier sale
deed, which is at Annexure 1 to the memo of petition dated 20th September,
2003, it has been mentioned that the land, in question, is an agricultural
land. Learned counsel for the petitioner has also submitted vehemently that
this is the document, which has given birth to the whole dispute, in question.
By this very document, respondent no.12 has sold away the property to
respondent nos. 5 to 11 and, therefore, an application was preferred by the
present petitioner under Section 16(3) of the Act, 1961, claiming a right of
pre-emption. Thus, as per the document, executed by respondent no.12
himself, the land, in question, is an agricultural land. This aspect of the
matter has been lost sight of by the Deputy Collector, Land Reforms,
Hazaribagh and, therefore, let the matter be remanded to the lower appellate
court i.e. Additional Collector, Hazaribagh, for a fresh decision in an appeal,
already preferred by the present petitioner and let it be decided within the
stipulated time, given by this Court, by quashing and setting aside the order,
passed by the revisional authority i.e. Member, Board of Revenue,
4.
Jharkhand, dated 22nd January, 2008 as well as by quashing and setting aside
the order passed by the Additional Collector, Hazaribagh, dated 24th
December, 2004.
4. Though respondent nos.5 to 12 are served upon the notices, nobody
appears on their behalf. Learned counsel for the State i.e. respondent nos. 1
to 4, who is present before this Court, submitted that the order, passed by
the revisional authority is absolutely in accordance with law and facts and
once the order, passed by the lower appellate court is a non-speaking order,
it is bound to be quashed and set aside by the revisional authority.
Nonetheless, it is fairly submitted by the learned counsel for the State that if
this Court is remanding the matter to the lower appellate court i.e.
Additional Collector, Hazaribagh, then a stipulated time be given, so that
the appeal, already preferred by the petitioner, can be decided within the
said stipulated time.
5. Having heard learned counsel for both the sides and looking to the
facts and circumstances of the case, I hereby quash and set aside the order,
passed by the Member, Board of Revenue, Jharkhand, dated 22nd January,
2008 (Annexure 5 to the memo of petition) as well as the order, passed by
the Additional Collector, Hazaribagh, dated 24th December, 2004 (Annexure
3 to the memo of petition) mainly for the following facts and reasons:
(i) It appears that the present petitioner being an adjacent raiyat of
the lands, mentioned below, is claiming right of pre-emption under Section
16(3) of the Act, 1961.
Sl.No. Khata No. Plot No. Area
1. 142 625 0.03½ Acres
2. 124 826 0.03 Acres
3. 06 825 0.03 Acres
4. 59 828 0.04 Acres
(ii) It appears that the original owner, which is respondent no.12 in
this writ petition, sold away the property to respondent nos. 5 to 11 vide
document dated 8th December, 2006 (Annexure 1 to the memo of petition),
whereby, the petitioner was compelled to prefer an application before the
5.
Deputy Collector, Land Reforms, Hazaribagh, claiming a right of pre-
emption over the aforesaid four different lands. Section 16(3) of the Act,
1961 reads as under:
“16. Restriction on future acquisition by transfer, etc.-
xx xx xx
(3)(i) When any transfer of land is made after the
commencement of the Act to any person other than co-sharer or a
raiyat of adjoining land, any co-sharer of the transferor or any riayat
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:
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.
(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:
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 percent of the
purchase money out of the deposit made under clause (i).
(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.”
(iii) In view of the aforesaid Sub-section (3) of Section 16 of the
Act, 1961, an adjacent raiyat is entitled to the right of pre-emption upon a
land, in question. It is submitted by the learned counsel for the petitioner
that the sale deed, which has been entered into between respondent no. 12
and respondent nos. 5 to 11, which is dated 20th September, 2003
(Annexure 1 to the memo of petition), it has been referred that the land, in
question, is an agricultural land. Thus, as per the original owner himself,
the land, in question, is an agricultural land.
(iv) It appears that before the Additional Collector, Hazaribagh,
6.
nobody appeared on behalf of the respondents and, therefore, by a non-
speaking order the appeal was allowed in favour of the present petitioner.
The said order is at Annexure 3 to the memo of petition. No reasons,
whatsoever, have been assigned by the lower appellate court, while passing
the order dated 24th December, 2004.
(v) It appears that being aggrieved by the aforesaid order, a
revision application was preferred by the respondents before the Member,
Board of Revenue, Jharkhand, being Revision Case No. 18 of 2007. While
allowing the revision application vide order dated 22nd January, 2008, it has
been held by the revisional authority that the order of the Additional
Collector is totally a non-speaking order and, therefore, the said order is
hereby quashed and set aside and the order, passed by the Deputy
Collector, Land Reforms, Hazaribagh, is hereby upheld. Thus, without
assigning any reason that how the order of the Deputy Collector, Land
Reforms, Hazaribagh, is true, correct, legal and in consonence with the
facts of the case, the revisional authority has also passed the order dated
22nd January, 2008.
(vi) Thus, both the lower appellate authority as well as the
revisional authority have passed the orders, without assigned any reasons
and, therefore, I hereby quash and set aside the order, passed by the
Additional Collector, Hazaribagh, dated 24th December, 2004, as well as
the order, passed by the Member, Board of Revenue, Jharkhand, dated 22nd
January, 2008 and the matter is remanded to the Additional Collector,
Hazaribagh, to decide the appeal, already preferred by the petitioner,
afresh, in accordance with law and after giving an adequate opportunity of
being heard to the parties to the appeal. The appeal, already preferred by
the present petitioner before the Additional Collector, Hazaribagh, is
hereby revived. The Additional Collector, Hazaribagh, will take a decision
afresh as early as possible and practicable, preferably within a period of
sixteen weeks from the date of receipt of a copy of the order of this Court.
6. Learned counsel for the petitioner has relied upon a document, which
is at Annexure 1 to the memo of petitioner and submitted that the
document, whereby, sale has been executed between respondent no.12 and
7.
respondent nos. 5 to 11, itself refers that the land, in question, is an
agricultural land.
7. Be that as it may, this question will also be decided by the Additional
Collector, Hazaribagh, within the aforesaid time limit, given by this Court.
The issues raised by the petitioner, on merits, against the order passed by
the Deputy Collector, Land Reforms, Hazaribagh, are kept open to be
decided by the Additional Collector, Hazaribagh, in the appeal, already
preferred by the present petitioner under Section 30 of the Act, 1961. Thus,
the order, passed by the Additional Collector, Hazaribagh, as well as the
order, passed by the Member, Board of Revenue, Jharkhand, which are
Annexure 3 and 5 respectively, are hereby quashed and set aside and the
matter is remanded to the Additional Collector, Hazaribagh, for a fresh
decision. This writ petition is, thus, allowed to the aforesaid extent and is
hereby disposed of.
8. Learned counsel for the petitioner submitted that the stay, granted by
this Court vide order dated 4th November, 2009 may be directed to continue
for sometime, till an application for stay is preferred and decided by the
lower appellate court i.e. Additional Collector, Hazaribagh, in the pending
appeal, preferred by the present petitioner.
9. In view of the aforesaid submission, the stay granted by this Court
vide order dated 4th November, 2009 is hereby directed to continue till an
application for stay, so preferred by the petitioner, is decided by the
Additional Collector, Hazaribagh, in the pending appeal, preferred by the
present petitioner, on a condition that stay application will be preferred by
the petitioner in the pending appeal before the Additional Collector,
Hazaribagh, within a period of two weeks from the date of receipt of a
copy of the order of this Court. If no such application is preferred for stay,
the stay granted by this Court will come to an end, after the two weeks’
period is over after receiving the certified copy of the order of this Court.
(D.N. Patel, J)
Jharkhand High Court, Ranchi
Dated the 15th April, 2010.
A.K.Verma/ N.A.F.R.