{"id":75111,"date":"2010-04-15T00:00:00","date_gmt":"2010-04-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/babuni-mahto-vs-state-of-jharkhand-ors-on-15-april-2010"},"modified":"2016-09-26T09:35:03","modified_gmt":"2016-09-26T04:05:03","slug":"babuni-mahto-vs-state-of-jharkhand-ors-on-15-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/babuni-mahto-vs-state-of-jharkhand-ors-on-15-april-2010","title":{"rendered":"Babuni Mahto vs State Of Jharkhand & Ors on 15 April, 2010"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Babuni Mahto vs State Of Jharkhand & Ors on 15 April, 2010<\/div>\n
                     Writ Petition (Civil) No. 2364 of 2008\n      In the matter of an application under Article 226 of the Constitution of\n      India\n                                --------\n<\/pre>\n
      Babuni Mahto                                         ......Petitioner\n                               Versus\n      1. The State of Jharkhand\n      2. The Member Board of Revenue, Jharkhand\n      3. The Additional Collector, Hazaribagh\n<\/pre>\n
      4. The Deputy Collector, Land Reforms, Hazaribagh\n<\/p>\n
      5. Radhika Prasad Mehta\n<\/p>\n
      6. Baleshwar Prasad Mehta\n<\/p>\n
      7. Suresh Prasad Mehta\n<\/p>\n
      8. Radho Devi\n<\/p>\n
      9. Indrajit Kumar Mehta\n<\/p>\n
      10.Dilip Kumar Mehta\n<\/p>\n
      11.Ashok Kumar Mehta\n<\/p>\n
      12.Chitlal Mahto                                     ……Respondents\n<\/p>\n
                                ———<\/p>\n
\n      For the Petitioner            : Mr. Sunil Kumar Sinha, Advocate\n      For the State                 : J.C. to S.C. (L & C)\n      For private respondents       : None\n                               ---------\nPer: HON'BLE MR. JUSTICE D.N.PATEL\nDated: 15th April, 2010\n\nD.N.Patel, J.     The present writ petition has been preferred, challenging the\n<\/pre>\n
      order, passed by the Member, Board of Revenue, Jharkhand, Ranchi, dated
\n      22nd January, 2008 in Revision Case No. 18 of 2007, whereby, an order,
\n      passed by the Additional Collector, Hazaribagh, dated 24th December, 2004
\n      in Land Ceiling Appeal No. 10 of 2004, has been quashed and set aside and
\n      the order, passed by the Deputy Collector, Land Reforms, Hazaribagh, dated
\n      5th June, 2004 in Land Ceiling Case No. 1 of 2004 has been upheld.\n<\/p>\n
      2.    Learned counsel appearing for the petitioner submitted that the
\n      Deputy Collector, Land Reforms, Hazaribagh, has passed an order dated 5th
\n      June, 2004, upon an application, preferred by the petitioner under Section
\n      16(3) of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of
\n      Surplus Land) Act, 1961 (hereinafter to be referred as “the Act, 1961” for
\n      the sake of brevity), whereby, the petitioner was claiming a right of pre-
\n      emption. It is contended by the learned counsel for the petitioner that the
\n      petitioner is an adjacent raiyat and co-sharer of the land, in question, and,
\n      therefore, the respondent cannot sell away the property to a third party,
\n      without giving an opportunity to the petitioner to purchase the land, in
\n                                 2.<\/span>
\nquestion, and, therefore, an application was preferred by the petitioner
\nbefore the Deputy Collector, Land Reforms, Hazaribagh, which was
\nnumbered as Land Ceiling Case No. 1 of 2004. The said application,
\npreferred by the petitioner, was dismissed and it was held that the land, in
\nquestion, is not an agricultural land and, therefore, the right of pre-emption
\nis never accrued to the petitioner. This order was passed on 5th June, 2004,
\nwhich is at Annexure 2 to the memo of petition. Against this order, an
\nappeal was preferred by the petitioner under Section 30 of the Act, 1961
\nbefore the Additional Collector, Hazaribagh, which was allowed vide order
\ndated 24th December, 2004, which is at Annexure 3 to the memo of petition,
\nand the order, passed by the Deputy Collector, Land Reforms, Hazaribagh,
\ndated 5th June, 2004, was quashed and set aside. Against this order, a
\nrevision application, which was numbered as Revision Case No. 18 of 2007,
\nwas preferred by the respondents, which was allowed by the Member, Board
\nof Revenue, Jharkhand, vide order dated 24th January, 2008. It is submitted
\nby the learned counsel for the petitioner that the order passed by the
\nMember, Board of Revenue, Jharkhand, in Revision Case No. 18 of 2007 is
\nabsolutely against the provisions of law, mainly for the reason that under
\nSection 32 of the Act, 1961, the limitation period for preferring the revision
\napplication is thirty days whereas the revision was preferred after
\napproximately three years and there was no separate application for
\ncondonation of delay. No notice was ever issued prior to condonation of
\ndelay and while allowing the revision application, in one line the delay has
\nbeen condoned and, therefore also, the impugned order, passed by the
\nMember, Board of Revenue, Jharkhand, deserves to be quashed and set
\naside. It is also submitted by the learned counsel for the petitioner that no
\nreasons have been assigned by the Member, Board of Revenue, Jharkhand,
\nwhile allowing the revision application, filed by the respondents. The said
\norder is, therefore, a non-speaking order. It is also submitted by the learned
\ncounsel for the petitioner that after the order, passed by the Additional
\nCollector, Hazaribagh, vide Annexure 4 to the memo of petition the land, in
\nquestion, was registered in favour of the present petitioner on 8th December,
\n2006. Thus, the order passed by the Additional Collector, Hazaribagh
\n                                  3.<\/span>
\n(Annexure 3 to the memo of petition) has already been executed by a
\ndocument at Annexure 4 to the memo of petition, which is dated 8th
\nDecember, 2006 i.e. much prior to the decision, delivered by the Member,
\nBoard of Revenue, Jharkhand, in the revision application. This aspect of the
\nmatter has also not been properly appreciated by the revisional authority.
\nNonetheless, it is fairly submitted by the learned counsel for the petitioner
\nthat if the revisional authority has arrived at a decision that the order, passed
\nby the Additional Collector, Hazaribagh, is totally a non-speaking order,
\nthen the revisional authority ought to have remanded the matter for a fresh
\ndecision by the Additional Collector, Hazaribagh, but, instead of doing so,
\nan order passed by the Deputy Collector, Land Reforms, Hazaribagh, has
\nbeen upheld, without assigned any reason, worth the name, which is an error
\napparent on the face of the record and, hence also, the order, passed by the
\nMember, Board of Revenue, Jharkhand, deserves to be quashed and set
\naside.\n<\/p>\n
3.       It is further vehemently submitted by the learned counsel for the
\npetitioner (original applicant before the Deputy Collector, Land Reforms,
\nHazaribagh, under Section 16(3) of the Act, 1961) that in the earlier sale
\ndeed, which is at Annexure 1 to the memo of petition dated 20th September,
\n2003, it has been mentioned that the land, in question, is an agricultural
\nland. Learned counsel for the petitioner has also submitted vehemently that
\nthis is the document, which has given birth to the whole dispute, in question.
\nBy this very document, respondent no.12 has sold away the property to
\nrespondent nos. 5 to 11 and, therefore, an application was preferred by the
\npresent petitioner under Section 16(3) of the Act, 1961, claiming a right of
\npre-emption. Thus, as per the document, executed by respondent no.12
\nhimself, the land, in question, is an agricultural land. This aspect of the
\nmatter has been lost sight of by the Deputy Collector, Land Reforms,
\nHazaribagh and, therefore, let the matter be remanded to the lower appellate
\ncourt i.e. Additional Collector, Hazaribagh, for a fresh decision in an appeal,
\nalready preferred by the present petitioner and let it be decided within the
\nstipulated time, given by this Court, by quashing and setting aside the order,
\npassed by the revisional authority i.e. Member, Board of Revenue,
\n                                  4.<\/span>
\nJharkhand, dated 22nd January, 2008 as well as by quashing and setting aside
\nthe order passed by the Additional Collector, Hazaribagh, dated 24th
\nDecember, 2004.\n<\/p>\n
4.    Though respondent nos.5 to 12 are served upon the notices, nobody
\nappears on their behalf. Learned counsel for the State i.e. respondent nos. 1
\nto 4, who is present before this Court, submitted that the order, passed by
\nthe revisional authority is absolutely in accordance with law and facts and
\nonce the order, passed by the lower appellate court is a non-speaking order,
\nit is bound to be quashed and set aside by the revisional authority.
\nNonetheless, it is fairly submitted by the learned counsel for the State that if
\nthis Court is remanding the matter to the lower appellate court i.e.
\nAdditional Collector, Hazaribagh, then a stipulated time be given, so that
\nthe appeal, already preferred by the petitioner, can be decided within the
\nsaid stipulated time.\n<\/p>\n
5.    Having heard learned counsel for both the sides and looking to the
\nfacts and circumstances of the case, I hereby quash and set aside the order,
\npassed by the Member, Board of Revenue, Jharkhand, dated 22nd January,
\n2008 (Annexure 5 to the memo of petition) as well as the order, passed by
\nthe Additional Collector, Hazaribagh, dated 24th December, 2004 (Annexure
\n3 to the memo of petition) mainly for the following facts and reasons:\n<\/p>\n
      (i)     It appears that the present petitioner being an adjacent raiyat of
\nthe lands, mentioned below, is claiming right of pre-emption under Section
\n16(3) of the Act, 1961.\n<\/p>\n
Sl.No. Khata No.          Plot No.            Area\n1.      142               625                 0.03\u00bd Acres\n2.      124               826                 0.03 Acres\n3.      06                825                 0.03 Acres\n4.      59                828                 0.04 Acres\n\n\n      (ii)    It appears that the original owner, which is respondent no.12 in\n<\/pre>\n
this writ petition, sold away the property to respondent nos. 5 to 11 vide
\ndocument dated 8th December, 2006 (Annexure 1 to the memo of petition),
\nwhereby, the petitioner was compelled to prefer an application before the
\n                                  5.<\/span>
\nDeputy Collector, Land Reforms, Hazaribagh, claiming a right of pre-
\nemption over the aforesaid four different lands. Section 16(3) of the Act,
\n1961 reads as under:\n<\/p>\n
      “16. Restriction on future acquisition by transfer, etc.-\n<\/p><\/blockquote>\n
                     xx            xx          xx
\n             (3)(i) When any transfer of land is made after the
\n      commencement of the Act to any person other than co-sharer or a
\n      raiyat of adjoining land, any co-sharer of the transferor or any riayat
\n      holding land adjoining the land transferred, shall be entitled, within
\n      three months of the date of registration of the document, of transfer, to
\n      make an application before the Collector in the prescribed manner for
\n      the transfer of the land to him on the terms and conditions contained
\n      in the said deed:\n<\/p><\/blockquote>\n
             Provided that no such application shall be entertained by the
\n      Collector unless the purchase money together with a sum equal to ten
\n      percent thereof is deposited in the prescribed manner within the said
\n      period.\n<\/p><\/blockquote>\n
             (ii) On such deposit being made the co-sharer or the raiyat shall
\n      be entitled to be put in possession of the land irrespective of the fact
\n      that the application under clause (i) is pending for decision:\n<\/p><\/blockquote>\n
             Provided that where the application is rejected, the co-sharer or
\n      the raiyat, as the case may be, shall be evicted from the land and
\n      possession there of shall be restored to the transferee and the
\n      transferee shall be entitled to be paid a sum equal to ten percent of the
\n      purchase money out of the deposit made under clause (i).\n<\/p><\/blockquote>\n
             (iii) If the application is allowed, the Collector shall by an order
\n      direct the transferee to convey the land in favour of the applicant by
\n      executing and registering a document of transfer within a period to be
\n      specified in the order and, if he neglects or refuses to comply with the
\n      direction, the procedure prescribed in Order 21, rule 34 of the Code of
\n      Civil Procedure, 1908 (V of 1908), shall be, so far as may be,
\n      followed.”<\/p><\/blockquote>\n
      (iii) In view of the aforesaid Sub-section (3) of Section 16 of the
\nAct, 1961, an adjacent raiyat is entitled to the right of pre-emption upon a
\nland, in question. It is submitted by the learned counsel for the petitioner
\nthat the sale deed, which has been entered into between respondent no. 12
\nand respondent nos. 5 to 11, which is dated 20th September, 2003
\n(Annexure 1 to the memo of petition), it has been referred that the land, in
\nquestion, is an agricultural land. Thus, as per the original owner himself,
\nthe land, in question, is an agricultural land.\n<\/p>\n
      (iv)   It appears that before the Additional Collector, Hazaribagh,
\n                                 6.<\/span>
\nnobody appeared on behalf of the respondents and, therefore, by a non-
\nspeaking order the appeal was allowed in favour of the present petitioner.
\nThe said order is at Annexure 3 to the memo of petition. No reasons,
\nwhatsoever, have been assigned by the lower appellate court, while passing
\nthe order dated 24th December, 2004.\n<\/p>\n
      (v)    It appears that being aggrieved by the aforesaid order, a
\nrevision application was preferred by the respondents before the Member,
\nBoard of Revenue, Jharkhand, being Revision Case No. 18 of 2007. While
\nallowing the revision application vide order dated 22nd January, 2008, it has
\nbeen held by the revisional authority that the order of the Additional
\nCollector is totally a non-speaking order and, therefore, the said order is
\nhereby quashed and set aside and the order, passed by the Deputy
\nCollector, Land Reforms, Hazaribagh, is hereby upheld. Thus, without
\nassigning any reason that how the order of the Deputy Collector, Land
\nReforms, Hazaribagh, is true, correct, legal and in consonence with the
\nfacts of the case, the revisional authority has also passed the order dated
\n22nd January, 2008.\n<\/p>\n
      (vi)   Thus, both the lower appellate authority as well as the
\nrevisional authority have passed the orders, without assigned any reasons
\nand, therefore, I hereby quash and set aside the order, passed by the
\nAdditional Collector, Hazaribagh, dated 24th December, 2004, as well as
\nthe order, passed by the Member, Board of Revenue, Jharkhand, dated 22nd
\nJanuary, 2008 and the matter is remanded to the Additional Collector,
\nHazaribagh, to decide the appeal, already preferred by the petitioner,
\nafresh, in accordance with law and after giving an adequate opportunity of
\nbeing heard to the parties to the appeal. The appeal, already preferred by
\nthe present petitioner before the Additional Collector, Hazaribagh, is
\nhereby revived. The Additional Collector, Hazaribagh, will take a decision
\nafresh as early as possible and practicable, preferably within a period of
\nsixteen weeks from the date of receipt of a copy of the order of this Court.\n<\/p>\n
6.    Learned counsel for the petitioner has relied upon a document, which
\nis at Annexure 1 to the memo of petitioner and submitted that the
\ndocument, whereby, sale has been executed between respondent no.12 and
\n                                         7.<\/span>
\n       respondent nos. 5 to 11, itself refers that the land, in question, is an
\n       agricultural land.\n<\/p>\n
       7.      Be that as it may, this question will also be decided by the Additional
\n       Collector, Hazaribagh, within the aforesaid time limit, given by this Court.
\n       The issues raised by the petitioner, on merits, against the order passed by
\n       the Deputy Collector, Land Reforms, Hazaribagh, are kept open to be
\n       decided by the Additional Collector, Hazaribagh, in the appeal, already
\n       preferred by the present petitioner under Section 30 of the Act, 1961. Thus,
\n       the order, passed by the Additional Collector, Hazaribagh, as well as the
\n       order, passed by the Member, Board of Revenue, Jharkhand, which are
\n       Annexure 3 and 5 respectively, are hereby quashed and set aside and the
\n       matter is remanded to the Additional Collector, Hazaribagh, for a fresh
\n       decision. This writ petition is, thus, allowed to the aforesaid extent and is
\n       hereby disposed of.\n<\/p>\n
       8.      Learned counsel for the petitioner submitted that the stay, granted by
\n       this Court vide order dated 4th November, 2009 may be directed to continue
\n       for sometime, till an application for stay is preferred and decided by the
\n       lower appellate court i.e. Additional Collector, Hazaribagh, in the pending
\n       appeal, preferred by the present petitioner.\n<\/p>\n
       9.      In view of the aforesaid submission, the stay granted by this Court
\n       vide order dated 4th November, 2009 is hereby directed to continue till an
\n       application for stay, so preferred by the petitioner, is decided by the
\n       Additional Collector, Hazaribagh, in the pending appeal, preferred by the
\n       present petitioner, on a condition that stay application will be preferred by
\n       the petitioner in the pending appeal before the Additional Collector,
\n       Hazaribagh, within a period of two weeks from the date of receipt of a
\n       copy of the order of this Court. If no such application is preferred for stay,
\n       the stay granted by this Court will come to an end, after the two weeks’
\n       period is over after receiving the certified copy of the order of this Court.\n<\/p>\n
                                                             (D.N. Patel, J)
\nJharkhand High Court, Ranchi
\nDated the 15th April, 2010.\n<\/p>\n
A.K.Verma\/ N.A.F.R.<\/p>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Babuni Mahto vs State Of Jharkhand & Ors on 15 April, 2010 Writ Petition (Civil) No. 2364 of 2008 In the matter of an application under Article 226 of the Constitution of India ——– Babuni Mahto ……Petitioner Versus 1. The State of Jharkhand 2. The Member Board of Revenue, Jharkhand 3. The […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-75111","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nBabuni Mahto vs State Of Jharkhand & Ors on 15 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/babuni-mahto-vs-state-of-jharkhand-ors-on-15-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Babuni Mahto vs State Of Jharkhand & Ors on 15 April, 2010 - 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