J.N. Bhatt, C.J.
1. An interesting question has surfaced in this writ petition under Articles 226 and 227 of the Constitution of India challenging the legality and validity of the order - resolution dated 8.4.1988 recorded by the Additional Member, Board of Revenue, who is respondent No. 2, in Case No. 170 of 1987, dismissing the revision application of the petitioner against the order dated 20.5.1987, recorded by the Collector, Bhagalpur, who is respondent No. 3, in Ceiling Appeal No. 177 of 1982-83, who dismissed the appeal of the petitioner against the order dated 7.2.1983 passed by the Land Reforms Deputy Collector ('LRDC'), in Land Ceiling Case No. 17 of 1982-83, by which the application for pre-emption came to be dismissed in respect of the questioned, property.
2. The petitioner is the pre-emptor who claimed pre-emption on the ground that the vendee got a registered sale deed with regard to the land adjoining to the transferred land on 23.12.1982, after filing of the pre-emption application. Respondent Nos. 5, 6 and 7 in respect of the questioned property, objected the claim of pre-emption of the petitioner on the ground that he was not adjoining owner or boundary - adjacent raiyat.
3. The disputed land, was sold by respondent No. 8 Bibi Sakina to respondent Nos. 5 to 7. The pre-emption application was filed by the petitioner Shobhit Mahto on 10.12.1982 in respect of the property sold by Bibi Sakina to respondent Nos. 5 to 7 being Land ceiling Case No. 17 of 1982-83 which was contested by the respondent Nos. 6 to 7. The Land Reforms Deputy Collector, Bhagalpur, who is respondent No. 4, dismissed the pre-emption application of the petitioner under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 (Act of 1961), on the premises that the respondent Nos. 5 to 7 - vendees got a registered sale deed with regard to the disputed land adjoining to the transferred land on 23.12.1982.
4. The petitioner being aggrieved by the order of rejection of pre-emption application by LRDC, Bhagalpur, preferred an appeal being Appeal Case No. 177 of 1982-83 unsuccessfully. This order of the LRDC came to be confirmed by the appellate authority recorded on 20.5.1987. The petitioner also lost in revision, decided by the Additional Member, Board of Revenue being Case No. 170 of 1987 on 8.4.1988. Thus, the claim for pre-emption of the disputed transferred, land in favour of respondent Nos. 5 to 7 raised by the petitioner was rejected, concurrently, by all the three revenue authorities under the Act of 1961. Hence, this writ petition under Article 226 of the Constitution of India.
5. Learned Counsels for the parties have offered their submissions. Factual scenario emerging from the record has been scanned and examined. Written arguments are also considered. Proposition of law and case law relied on have also been taken into consideration.
6. The petitioner sought to exercise the alleged claim of pre-emption in terms of the provisions of Clause (i) of Sub-section (3) of Section 16 of the Act of 1961. The right of pre-emption has deep rooted, historical background. In order to claim pre-emption, there must be a complete transaction of sale. In other words, in a right of pre-emption, three parties are important (i) is transferor, who is respondent No. 8 in this petition namely, Bibi Sakina, (ii) the transferee or vendee, who are respondent Nos. 5 to 7 here and (iii) pre-emptor, claiming pre-emption in respect of the transferred land, who is petitioner here.
7. There are also certain other pre-requisites for claiming the right of pre-emption under Section 16(3) of the Act of 1961.
8. It would, therefore, be expedient at this juncture to refer and re-produce the said provisions with profit:
16. Restriction on future acquisition by transfer etc. - (1) No person shall, after the commencement of this Act, either by himself or through any other person, acquire or possess by transfer, exchange, lease, mortgage, agreement or settlement any land which together with the land, if any, altered held by him exceeds in the aggregate of the ceiling area.
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(3) (i) When any transfer of land is made after the commencement of the 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 he 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 thereof 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.9. Section 16 of the Act of 1961 contained in Chapter V prescribes provisions for restriction on future acquisition by transfer etc. It could very well be visualized from the aforesaid provisions that Clause (i) of Section 16(3) of the Act of 1961 stipulates that on happening of any transfer of land made after the commencement of the Act of 1961 to any transferee, other than co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, is competent and entitled, within three months of the date of the registration of the document, of the transfer, to make an application before the Collector in prescribed manner for the transfer of the land to him on the terms and conditions in the said deed. Other pre-requisites are provided in the two provisoes.
10. The Act of 1961 has a laudable object. The Act is a piece of social legislation for agrarian reforms. The design and desideratum of the legislation is to break up the concentration of ownership of control of material resources of the community and to so distribute the land as best to subserve the common good as enshrined under Article 39(b) of the Constitution of India.
11. Let it be also mentioned that having regard to the scope of area and density agriculture available in the State of Bihar, once upon a time it had been one of the highest per capita density in the whole of the country before bifurcation. It is in these context, the ceiling law appears to be reasonable and fair. One of the objects has been to make the provision for equitable distribution of natural resources and, therefore, it was thought expedient, to enact such provision of making surplus land available for the distribution to landless peasantry. There is one view that such an Act is a commendable effort to make available land to the members of the family and persons living below the poverty line to ameliorate the poverty of the landless agriculturists.
12. It could also very well be appreciated from the entire purpose of the said legislation that the ceiling on agricultural holdings once fixed cannot be allowed to remain static and unalterable for all times to come. It is in these context as could be seen from the legislative history that the provisions have been made to make suitable changes in view of the changing social needs and circumstances.
13. The right of pre-emption as such is historical as has been recognised since ancient times not only in this country but also in various countries of the world. There is also definite and specific philosophy of the 'doctrine of PRE-EMPTION'. No doubt, at times it has been held to be a very weak tight. A person who claims right of pre-emption has to successfully answer the eligibility criteria prescribed in Section 16(3) of the Act of 1961 within three months of the date of registration of the document and the transfer.
14. Coming to the main point so vehemently advanced by the petitioner by reiterating that his right of pre-emption in respect of the transferred land to respondents. 5 to 7 cannot be defeated on the premise that the transferee, respondent Nos. 5 to 7 were not, as such, adjoining owners or raiyat of adjoining land, the application for pre-emption came to be made on 10.12.1982 which plea is concurrently and consistently not accepted by three revenue authorities under the Act of 1961. The challenge against the alleged claim of pre-emption is made by the transferee i.e. respondents 5 to 7, on the ground that they became adjoining owner or adjacent by purchase of the adjoining property on 24.9.1982 when the land was transferred along with possession to them. The contention which has been reiterated before this Court on behalf of the petitioner is that since the document was registered after the date of filing of an application in terms of Section 16(3) of the Act of 1961, mere execution of the agreement of sale, or execution of the sale deed is not sufficient to pass the title of adjoining raiyat in favour of respondent Nos. 5 to 7.
15. This submissions may appear, 'prima facie', very alluring but is not acceptably, if one gets down to factual background and the relevant proposition of law.
16. Let there be narration of few material facts in relation to the purchase or sale transaction of adjoining land by respondent No. 8 to respondent Nos. 5 to 7. The sale transaction was initiated by an agreement of sale in favour of respondent, Nos. 5 to 7 by the owner on 27.8.1982. Thereafter a sale deed in respect of the same land came to be executed by the original owner of the adjoining land on 24.9.1982 with possession and consideration. The registration of the sale deed came to be made on 23.12.1982 in respect of the adjoining land on the basis of which the adjacent riayatship is raised by respondent Nos. 5 to 7.
17. The contention raised on behalf of the respondent Nos. 5 to 7 is that once the document is executed on passing of consideration of taking possession along with its execution, the title would pass in favour of them not on the date of the registration of the document but from the date of the execution of the sale deed as such.
18. This submission is accepted by three authorities below which appears to be very weighty. Under Section 34 of the Transfer of Property Act, 1882 ('Act of 1982') 'Sale' is defined - 'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. So registration is required under Section 54 of Act of 1982 only when the value of the property is more than one hundred rupees and upward. Suppose the property is sold for Rs. 99/-, registration is not required but the ownership, title, right would vest on the vendee or purchaser even on delivery of possession.
19. It is in these context, it will be proper to have a look into the provisions of Section 47 of the Registration Act, 1908 ('the Act of 1908'). Section 47 of the Act of 1908 prescribes a time from which the registered document would operate. It is clearly and legislatively laid down that a registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.
20. Section 47 of the Act of 1908 makes no doubt in the mind of the Court that the impact, effect and all legal consequences would begin from the date of the execution of the sale deed though the registration is at a later date.
21. Let it be recalled that in the present case, the agreement to sell was executed in respect of the adjoining property on 27.8.1982 and the claim is not based on mere execution of agreement to sell. The right of pre-emption is sought to be defeated on the strength of the execution of the sale deed dated 24.9.1982 which came to be later registered on 23.12.1982. There is no dispute about the fact that an application came to be made after the execution of the sale deed with delivery of possession with consideration on 10.12.1982. Merely, because registration is beyond the date of the making an application for pre-emption does not necessarily mean that the right to be an adjoining raiyat or adjacent owner is lost against the right of the pre-emptor which is very weak.
22. The view which this Court is inclined to take is also re-informed by a Division Bench decision of this Court in the case of Dhanik Lal Mahto and Ors. v. The Additional Member, Board of Revenue and Ors. 1985 BBCJ 597.
23. After having taken into consideration the overall picture emerging from the record in the backdrop of the relevant proposition of law, as aforesaid, as well as, submissions, concurrent findings recorded by the three revenue courts against the petitioner rejecting the right of pre-emption could not be said to be unjust, unreasonable, illegal or perverse requiring interference of this Court in exercise of power of this Court under writ jurisdiction which is prerogative, equitable, and discretionary. Therefore, this petition deserves to be dismissed but without costs. Rule stands discharged.