JUDGMENT
Ramesh Kumar Datta, J.
Page 0038
1. Heard Mr. Nagendra Kumar Singh, learned Counsel for the petitioner, Mr. Surendra Kumar Singh, learned Senior counsel appearing for respondent No. 5 and the learned JC to Standing Counsel No. 2 (Ceiling).
2. The petitioner seeks quashing of the order dated 27.6.2000 (Annexure-6) passed by the Additional Member, Board of Revenue in Revision case No. 34 of 1999 dismissing the revision filed by him and for a further direction to restore the order dated 17.10.1996 of the DCLR, Gaya passed in Ceiling Case No. 6 of 1996-97.
3. The case of the petitioner is that original respondent No. 6 Sundari Devi (since substituted by her heirs) had purchased the land of old Khata No. 37, Plot No. 168, new R.S. khata No. 54 plot No. 268 area 38 decimals through registered deed of sale bearing No. 6196 dated 12.4.1981 from Ram Kishore Singh and came into possession. The respondent No. 5, Sudama Devi purchased the said land on 29.7.1994 through registered sale deed No. 12148 on 28.11.1995.
4. The petitioner filed a pre-emption application under Section 16(3) I of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act claiming to be adjoining raiyat against the respondent No. 5 who admittedly is neither an adjoining raiyat nor a co-sharer. Before the DCLR the stand taken by the purchaser respondent was that the vendor had initially offered the land for sale to the petitioner and other adjoining raiyats and only after they refused to purchase the land, she approached the respondent No. 5 and thereafter the sale had taken place. In support of the same four affidavits filed by the vendor (original respondent No. 6) and other adjoining raiyats were also filed in the Court of the DCLR.
5. On consideration of the aforesaid facts the DCLR allowed the case of the petitioner. Against the same, the respondent No. 5 filed ceiling appeal No. 250/1996-97. The same issues were raised by the parties in the appeal. In the rejoinder filed by the petitioner in the said appeal it was clearly stated that the petitioner had vehemently denied and objected to the affidavits sworn by the parties who were his natural enemies and further that they did not swear the said facts in the Court nor the deponent of the said affidavits appeared before the court below in order to test their veracity. After hearing the parties, the District. Collector by his order dated 25.12.1998 allowed the appeal relying upon a decision of the Supreme Court in the case of Ram Chhapit Yadav v. Addl. Member, Board of Revenue and Ors. 1996 BBCJ (SC) 1 in which it was laid down that when an affidavit is filed by the vendor that they had offered the land for sale to the pre-emptors and on their refusal the land was sold to the other purchaser then the pre-emption application filed by the said adjoining raiyat must fail and was rightly dismissed by the authorities in the case under consideration. On the basis of the said judgment the appellate Court allowed the appeal. Against the appellate order the petitioner filed revision case No. 34 of 1999 before the Board of Revenue which after hearing the parties dismissed the same for the same reasons. Aggrieved by the same the petitioner has filed this writ petition.
6. Learned Counsel for the petitioner has firstly submitted on the basis of the statements made in the writ petition that the said four affidavits had not been filed Page 0039 before the court of DCLR and for the first time in the ceiling appeal the four affidavits were filed. So far as the said statement is concerned, it is blatantly false, in view of the clear statements made in the order dated 17.10.1996 of the DCLR that counsel for the respondents had made arguments on the basis of the four affidavits filed by them. The said false statement is further borne by the fact that in the rejoinders filed in the appeal, which is annexure-4 to the writ petition, the clear statement has been made on behalf of the petitioner that the petitioner had vehemently denied and objected to the affidavits before the lower court. In view of the said rejoinder a false statement has been made in the writ petition and as such, the writ petition is fit to be dismissed solely on the said ground as the party who invokes the writ jurisdiction of this Court must come to this Court with clean hands.
7. Learned Counsel for the petitioner has also argued that the said four affidavits had been sworn before a notary and not before the Magistrate conducting the proceedings and for the said reason that cannot be relied upon. In support of the said argument, learned Counsel has cited a decision of the full Bench of this Court in the case of Shrimati Radha Devi v. Mani Prasad Singh and Anr. 1980 PLJR 14, in para 14 of which it has been held as follows:
Now remains a small ancillary question to be answered as to whether the affidavits which were affirmed before the Executive Magistrate could be admissible in evidence for deciding the controversy between the parties when the matter goes back. This question is now settled beyond controversy by the Supreme Court in (10) Chhotan Prasad Singh and Ors. v. Hari Dusadh and Ors. 1977 B.B.C.J. 46S.C., where it was held that affidavits sworn before a Magistrate not in seisin of the proceeding were not legal evidence. In the view that I have taken, the Executive Magistrate could not legally administer oaths and affirmations to the persons who sworn affidavits as it is only those Courts and persons, having by law or the consent of the parties, the authority to receive evidence, who are authorised to administer oaths and affirmations, or if they are otherwise acting in discharge of the duties or powers imposed or conferred upon them. Such affidavits which were affirmed before the Executive Magistrate who had no jurisdiction to entertain the proceeding, and thus not authorised to administer oaths could not be admissible in evidence in this case for deciding the controversy between the parties. T will, accordingly, allow the parties to get such affidavits affirmed afresh before the Sub-Divisional Magistrate, Saharsa, to whom the case is being remanded.
8. Thus, on the basis of the aforesaid authority the counsel for the petitioner submits that the four affidavits not having been sworn before the DCLR who was in seisin of the proceedings the same could not have been relied upon by the appellate authority to allow the case of the respondents. Learned Counsel also relies upon a recent decision of the Supreme Court in the case of Sheojee Mahto v. the Additional Member, Board of Revenue and Ors. 1997(1) PLJR 46 (SC) in which it has been laid down by the Supreme Court that when any person other than a co-sharer or a raiyat of adjoining land purchases a land then an adjoining raiyat or a co-sharer shall be entitled to pre-empt the same by filing an application within the period prescribed. So far as the said decision is concerned, it does not lay down anything more than what has already been prescribed by Section 16(3) of the Act. Learned Counsel for the petitioner further relies upon a decision of the Supreme Court in the case of Page 0040 Standard Chartered Bank v. Andhra Bank Financial Services Ltd. and Ors. 2006 AIR SCW 3460, in para 78 of which it has been laid down as follows:
In our view, that affidavit has no meaning as the deponent refused to submit himself to cross-examination and the evidence given in the affidavit was not tested by cross-examination.
9. The said case has no relevance to the facts of the present case because there was no refusal on the part of the deponents of the four affidavits to appear for cross-examination. As a matter of fact, the petitioner never approached the Court for calling the said deponent of the four affidavits for cross-examination.
10. Learned Counsel for respondent No. 5, on the other hand, has vehemently opposed the aforesaid contentions on behalf of the petitioner. It is firstly submitted that the reliance upon the Full Bench decision in Srimati Radha Devi’s case is of no avail to the petitioner because the said case was decided in terms of specific provisions of the Code of Criminal Procedure, 1898 in which the oath or affidavit had to be sworn before the Magistrate in seisin of the case and under the said circumstances, what has been decided in the said judgment cannot be relied upon by the petitioner in view of the specific Provisions contained in the Ceiling Act as well as the change in the law which has been brought about by the new Code of Criminal Procedure, 1973 as also by the amendments made in the Civil Procedure Code. Firstly it is pointed out by the learned Counsel that Section 33 of the Ceiling Act empowers the Board of Revenue, the appellate authority and the Collector with the same powers in making enquiries under the Act as are vested in a Court under the Code of Civil Procedure, 1908 and trying the suit including in the matter of admission of evidence by affidavits. Learned Counsel then refers to the amendment introducing Clause (aa) in Section 139 of the Code of Civil Procedure by Act No. 104 of 1976 which clearly provides that in the case of any affidavit under the said Code any Notary appointed under the Notaries Act, 1952 may administer oath to the deponent. Learned Counsel also refers to Section 297(i)(c) of the Code of Criminal Procedure, 1973 which makes a similar provision that affidavits to be used before any Court under the said Code may he sworn or affirmed before any Notary appointed under the Notaries Act, 1952. He also refers to Section 8(1)(e) of the Notaries Act in this regard by which it is provided that a Notary may do all or any of the following acts by virtue of his office including administering oath to or taking affidavit from any person. Learned Counsel submits that upon reading Section 33 of the Act with Section 139(aa) of the Code of Civil Procedure, it is evident that an affidavit, sworn before a Notary as in the present matter has been legally provided as valid for the purposes of proceedings under the Ceiling Act and thus the challenge to the same on the basis of the said Full Bench decision cannot stand since the decision of the Full Bench was rendered in view of the specific law applicable at the relevant time to the proceedings under Section 145 Cr. P.C. under consideration of the Full Bench.
11. In support of his aforesaid contention learned Counsel relies upon a Division Bench judgment of this Court in the case of Sidheshwar Prasad v. State of Bihar and Anr. 1983 BBCJ 118, in para-5 of which all the aforesaid provisions have been referred to and thereafter it has been clearly held that a Notary is competent to administer oath and to get affidavits sworn in view of the provisions of the Notaries Act, Code of Civil Procedure and the Code of Criminal Procedure. Learned Counsel also refers to a judgment of Allahabad High Court in the case of Sajjan Kumar v. C.L. Page 0041 Verma and Anr. in which the same proposition, as laid down in 1983 BBCJ 118, has been laid down by the said Court.
12. Learned Counsel also submits that the Board of Revenue is the final authority on questions of facts and once it has come to the conclusion that the vendor had made an offer to the petitioner to purchase the land which offer had not been taken up by the petitioner and thus he is disentitled from making a claim for pre-emption, then the same is not open to be challenged before the writ Court.
13. On a consideration of the law laid down in the aforesaid case and the various provisions cited above I am of the view that the affidavits sworn before the Notary and filed before the DCLR were clearly admissible as valid pieces of evidence in terms of the different provisions of the Ceiling Act, Code of Civil Procedure, Notaries Act and other enactments as referred to above.
14. Further, since there is no mateial on the record to show that the findings of fact by the Additional Member, Board of Revenue suffer from any perversity or illegality, the same must be accepted as final.
15. In the aforesaid facts and circumstances, there is no merit in this writ petition which is accordingly dismissed, but without any order as to costs.