JUDGMENT
Barin Ghosh and Anwar Ahmad, JJ.
Page 0106
1. Sub-section (3) of Section 16 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as ‘the Act’) is as follows:
16(3)(i) When any transfer of land is made after the commencement of this Act to any person other than a co-sharer 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 the 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 land and possession thereof shall be restored to the transferor 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.
Page 0107
2. In view of Sub-section (3) of Section 16 of the Act if a land, dealt by the Act, is transferred, then the adjoining raiyat acquires a right to pre-empt the same. The right of pre-emption accrues on transfer of the land and the time to exercise such right starts running from the date of registration of the conveyance transferring the land and ends on expiry of three months from the date of registration. In order to make the application for pre-emption within the four corners of the right conferred by Sub-section (3) of Section 16 of the Act, the pre-emptor is required to deposit not only the consideration money for which the transfer has been effected, but also additional 10% thereof. The moment an application for pre-emption is made within the time specified and upon deposit of money required to be deposited, despite the application for pre-emption has not been decided one way or the other, the pre-emptor is entitled to be put into possession of the land transferred. In the event the pre-emption application fails, the transferee is entitled to be compensated by payment of 10% of the consideration amount. The land dealt with by the Act has been defined in Clause (f) of Section 2 of the Act, which includes homestead, which in turn means also a dwelling house for the purpose of living.
3. In the instant case the sale was effected by two sale deeds; both dated 30th June, 1989 which were also registered simultaneously on 15th April, 1991. In respect of one sale deed, a pre-emption application was filed on 16th May, 1991 and in respect of the other, on 21st June, 1991. There is no dispute that each of these pre-emption applications were well within time and they accompanied appropriate deposits as were required to be made by the pre-emptor. The fact, however, remains that despite the pre-emptor being entitled to be put in possession of the land transferred, he was not put in possession, nor did he take steps for being put in possession of the land in question immediately, although in the pre-emption application he had prayed for the same.
4. The applications were decided by the D.C.L.R. Before such decision, an inspection was carried out. At the time when such inspection was carried out, it transpired that a house has been constructed on the land transferred. The conveyance, under which the land was obtained by the transferees, indicated that the transferees were purchasing the land in question for the purpose of making construction of their house thereon.
5. There is no dispute that before the transferees purchased the land in question, the same was being used only for agricultural purpose. At the same time, there is also no dispute that the object of obtaining the transfer by the transferees was to make construction of their house on such agricultural land. As aforesaid, there is also no dispute that despite filing an application for pre-emption and depositing appropriate deposits required to be made, pre-emptor was not put in possession of the transferred land immediately, nor he insisted for the same. Taking advantage of the situation, there is also no dispute that before the matter came up for decision before the D.C.L.R. the transferees made construction of their house on the transferred land.
6. The question is, in such a situation, would the pre-emptor pre-empt at the price deposited by him only for the land and take the land as well as the construction made thereon by taking advantage of the default of the pre-emptor? If such an application is permitted to be allowed then the same would tantamount to permit the pre-emptor to take advantage of his own default and to make (sic) unjust enrichment, and thereby to cause irreparable prejudice to the transferees.
Page 0108
7. If by insisting upon the right granted by the Act, the pre-emptor had taken possession of the land in question, the transferees could not make any construction thereon and, accordingly, the pre-emptor could get the land sought to be transferred in favour of the transferees by a boundary raiyat at the agreed price plus 10% thereof, but by not taking possession, despite making the application, and thereby permitting the transferees to make construction on the land in question, the pre-emptor himself permitted the transferees to change the nature and character of the land and, accordingly, he himself made his pre-emption applications no further maintainable.
8. In the circumstances, we feel that the learned Single Judge, who dealt with the Writ Petition, ought to have interfered with the order of the revisional authority, which had set aside the appellate order, which in turn had upheld the order of the D.C.L.R. rejecting the pre-emption applications. The learned Judge while dealing with the Writ Petition though took notice of the fact that a construction has come up on the land transferred, but did not take notice of the fact that such construction has come up by reason of the neglect or default on the part of the pre-emptor and, accordingly, the pre-emptor lost his right to keep the pre-emption applications maintainable.
9. In those circumstances we allow the appeal, set aside the order under appeal and also allow the writ petition by quashing the revisional order. There shall be no order as to costs.