Jharkhand High Court
Birendra Kumar Aged About 50 Years Son Of ... vs The State Of Jharkhand on 4 March, 2024
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 259 of 2022
Birendra Kumar aged about 50 years son of Awadh Kishore Prasad, Resident of
Village-Masihari, P.O. and P.S. Chhattarpur, District-Palamau
--- --- Appellant no.2/Petitioner no.2/Appellant
Versus
1.The State of Jharkhand ....... Respondent no.1
2.Yadunandan Mistry Son of Faudar Mistry
3.Bigan Mistry, Son of Ramdhyan Mistry
......... Respondents/ Opposite Parties No.2
and 3/ Respondents No.2 and 3
4.Ramchandra Vishwakarma, Son of Jogi Vishwakarma,
......... Respondent no.4/Opposite Party no.4/ Respondent No.4
Respondents no. 2,3, and 4 are residents of village Masihari, P.O and P.S.-
Chhattarpur, District-Palamau
5.Awadh Kishore Prasad S/o Late Ram Prasad Saw R/o
Village-Masihari, P.O. + P.S.-Chhattarpur, District-Palamau,
--- --- Petitioner no.1/ Proforma Respondent
.......
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE NAVNEET KUMAR
For the Appellant : Mr. Manoj Kumar Choubey, Advocate
Mr. Madhav Prasad, Advocate
For the Resp. No.2 & 3 : Mr. Arbind Kumar Sinha, Advocate
For the Respondent No.4 : Mr. Krishna Prajapati, Advocate
For the Respondent No.5 : Mr. Rajiv Kumar Karan, Advocate
---------
4th March 2024
Per, Shree Chandrashekhar, A.C.J.
Awadh Kishore Prasad and Birendra Kumar approached the writ
Court to challenge the order dated 10th September 2011 passed by the
Member, Board of Revenue in Revision Case No.26 of 2010 which
affirmed the order passed under Section 16 (3) of the Bihar Land
Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act,
1961 (in short, Land Ceiling Act) in favor of the pre-emptors, namely,
Yadunandan Mistry and Bigan Mistry.
2. WP(C) Nos. 4382 of 2012 filed by them has been dismissed by
the writ Court and, aggrieved thereby, Birendra Kumar has challenged
the said order on the ground that the statutory authorities under the Land
Ceiling Act passed the orders only on the basis of the pleadings of the
pre-emptors and no evidence was laid by them to demonstrate that they
are co-sharers or adjoining raiyats of the vender.
3. Briefly stated, a piece of land measuring 25¾ decimals
comprised in Plot No.32 under Mouza-Masihari, Thana-Chhattarpur of
Khata no. 62 in the District of Palamau was sold by Ramchandra
Vishwakarma through a registered sale-deed dated 31st July 2006
conveying right, title and interest thereon in favor of Awadh Kishore
Prasad, the father of the appellant. This transaction was challenged by
Yadunandan Mistry and Bigan Mistry (who are the respondent nos. 2
and 3 herein) by filing an application under Section 16(3) of the Land
Ceiling Act claiming themselves co-sharers and adjoining raiyats. This
pre-emption application registered as L.C. Case No.5 of 2006 was
allowed in favor of the respondent nos.2 and 3 by an order dated 29th
September 2008 passed by L.R.D.C., Palamau.
4. Aggrieved by that order, the appellant and his father filed Land
Ceiling Appeal No. XV/22 of 2008-2009 which was dismissed by an
order dated 8th May 2010 passed by the Additional Collector, Palamau.
Therefore, the appellant moved before the Board of Revenue by filing
Revision Petition No.26 of 2010 but this has also been dismissed vide
order dated 10th September 2011 and the Revisional Authority passed an
order for execution of the sale-deed in favor of the respondent nos.2
and 3.
5. The writ Court dismissed the writ petition and held as under:-
"Since the courts below have considered that claim of pre-
emption has been made out under Section 16(3) of the Bihar Land Reforms
(Fixation of Ceiling Area and Acquisition of Surplus Land) Act and
admittedly respondent nos. 2 & 3 are adjoining raiyats. Even if it is
presumed that there was a partition amongst the family of the respondents
and the respondents' persons cannot stand as co-sharers, then also, the
respondents are adjoining raiyats and the petitioner no.-2 Birendra Kumar
has no other land to claim himself to be an adjoining raiyat and entire
transaction, which has been made by Awadh Kishore Prasad subsequent to
his purchase is only for the purpose to defy the justice by transferring the
land in favour of his son Birendra Kumar or others.
So far submission made by the petitioner with regard to the right of pre-
emption being a weak piece of right and since, 15 years have already
elapsed though entire litigation is continuing on the pre-emptive right, is
concerned.
The Hon'ble apex court in the case of Suresh Prasad Singh v. Dulhin
Phulkumari Devi reported in (2010) 6 SCC 441 has held that the once the
claim for pre-emption is recognised by the statute, it has to be treated as
mandatory and not discretionary and even there has been long lapse of
years, it could not be rejected if lodged in accordance and manner
prescribed by the statute. Relevant para of aforesaid judgement is quoted
here under:-
20. The learned Single Judge deciding the writ petition and the Division
Bench of the High Court deciding the LPA appear to have taken a view that
the right of pre-emption is a weak right, presumably because the Division
Bench of the Patna High Court in Sudama Devi v. Rajendra Singh [AIR
1973 Pat 199] and the learned Single Judge in Ram Pravesh Singh v.
Board of Revenue [(1995) 1 PLJR 764 (Pat)] have taken this view.
Whatever may have been the views of the Patna High Court and this Court
in the earlier decisions cited by the learned counsel for Respondent 1, a
five-Judge Bench of this Court in Shyam Sunder v. Ram Kumar [(2001) 8
SCC 24] has now held that where a right of pre-emption is recognised by
statute, it has to be treated as mandatory and not discretionary. The
relevant passage from the judgment in Shyam Sunder v. Ram Kumar
[(2001) 8 SCC 24] is quoted hereinbelow: (SCC pp. 37-38, para 17)
"17. ... The right of pre-emption of a co-sharer is an incident of property
attached to the land itself. It is some sort of encumbrance carrying with the
land which can be enforced by or against the co-owner of the land. The
main object behind the right of pre-emption, either based on custom or
statutory law, is to prevent intrusion of a stranger into the family holding
or property. A co-sharer under the law of pre-emption has right to
substitute himself in place of a stranger in respect of a portion of the
property purchased by him, meaning thereby that where a co-sharer
transfers his share in holding, the other co-sharer has right to veto such
transfer and thereby prevent the stranger from acquiring the holding in an
area where the law of pre-emption prevails. Such a right at present may be
characterised as archaic, feudal and outmoded but this was law for nearly
two centuries, either based on custom or statutory law. It is in this
background the right of pre-emption under statutory law has been held to
be mandatory and not mere discretionary."
Thus, even if there has been a long lapse of 19 years, the High Court
could not have rejected the claim of the appellant for pre-emption when the
claim was recognised by the statute, had been lodged in accordance with
the statute and within the time prescribed by the statute and in the manner
provided by the statute.
In the view of above proposition by the Apex court, this court is of
opinion that the right of pre-emption is recognized by the Bihar Land
Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act in
the State of Jharkhand. The pre-emption claim has been filed within the
time and manner prescribed by the Act and cannot be rejected on mere 15
years has been elapsed or pre-emption being a weak right. Accordingly, the
issue raised hereby negated. Accordingly, this Court in not inclined to
interfere with the impugned orders and the writ petition is hereby
dismissed."
6. At the outset, we may record that the learned counsel appearing
for the respondent nos. 2 and 3 has made a statement, on instructions,
that sale-deed in favor of the respondent nos. 2 and 3 has not been
executed and, in fact, no further step in this regard has been taken by
them.
7. In L.C. Case No.5 of 2006, the father of the appellant set up a plea
that the subject land was transferred through registered sale-deed dated
31st July 2006 in his favor and, therefore, the pre-emption application
challenging 1st sale-deed was not maintainable. The pre-emptors resisted
the said plea on the ground that the sale-deed dated 11th October 2006
executed in favor of the appellant by his father was sham and farzi
document and that a claim for pre-emption cannot be avoided on such
manufactured document. The Land Reforms Deputy Collector formed an
opinion that the pre-emptors are co-sharers and the sale-deed dated 11th
October 2006 executed in favor of the appellant by his father was a farzi
document. However, no evidence was produced by the pre-emptors to
corroborate their stand and such a finding has been recorded by the Land
Reforms Deputy Collector on the basis of the pleadings of the pre-
emptors. As noticed above, the order passed in L.C. Case No. 5 of 2006
was affirmed by the appellate and revisional authorities.
8. As we gathered from the materials on record, the pre-emptors
claimed themselves as co-sharers only on the ground that Faudar Mistry
who is the father of Yadunandan Mistry was the brother of late Jogi
Vishwakarma, the father of the vendor. Quite apparently, Bigan Mistry
who was the pre-emptor no.2 cannot claim to be a co-sharer. This is also
not brought on record that Faudar Mistry and late Jogi Vishwakarma
were constituting and members of the joint Hindu family and, therefore,
Yadunandan Mistry and Ramchandar Vishwakarma were co-sharer. The
Land Reforms Deputy Collector allowed the pre-emption application
primarily on the ground that the purchasers did not indicate in what
manner they were claiming to be the adjoining raiyats. The learned writ
Court observed that even if partition did not taken place the pre-emptors
are the adjoining raiyats but this finding is not based on any evidence
produced by the respondent nos. 2 and 3 before the writ Court. And then,
in an application under section 16(3) of the Land Ceiling Act it is for the
applicant to demonstrate that he is a co-sharer or an adjoining raiyat.
9. This is too well-settled that the statutory authorities exercising
powers under Land Ceiling Act cannot decide the validity of the sale-
deed. The Land Reforms Deputy Collector could not have held that the
sale-deed executed by the father of the appellant in his favor was a sham
and farzi document and, that too, without taking any evidence in that
regard. The appellate and revisional authorities also failed to address
this fundamental issue arising in the case and thereby committed a
serious error in law inasmuch as they failed to exercise a jurisdiction
which is legally vested in them.
10. For the foregoing reasons, the writ Court's order dated 14th
February 2022 is set-aside. The writ petition is allowed and,
consequently, order dated 29th September 2008 passed by the Land
Reforms Deputy Collector, Chhattarpur, Palamau in L.C. Case No. 05 of
2006, order dated 8th May 2010 passed by the Additional Collector,
Palamau in Land Ceiling Appeal No. XV/22/2008-09 and order dated
10th September 2011 passed in Revision Case No. 26 of 2010 by the
Member, Board of Revenue, Jharkhand are set aside and the matter is
remitted back to the Land Reforms Deputy Commissioner, who shall
afford opportunity to the parties to lead evidence and deal with L.C.
Case No.5 of 2006 in accordance with law.
11. LPA No. 259 of 2022 is allowed to the aforesaid extent.
(Shree Chandrashekhar, A.C.J.)
(Navneet Kumar, J.)
A.Mohanty/R.Kumar
