Hem Narayan Yadav Vs. the State of Bihar and ors. - Court Judgment

Excerpt:
bihar land reforms (fixation of ceiling area and acquisition of surplus land) act 1961 — section 16(3) — premption — appellant/respondent no. 6, the pre-emptor, is an adjoining raiyat to the vended plots on strength of two sale deeds — respondent no. 5/petitioner neither an adjoining raiyat nor a co-sharer with respect to vended plots — appellant has unassailable position so far as primary requirement under section 16(3) of the ceiling act — petitioner converted vended plot into homestead before local inspection — vended plot is not homestead but purely agricultural land within the mischief of section 16(3) of ceiling act — findings obtained by petitioner in the proceedings under the consolidation act is of no avail to him in the present..... sudhir kumar katriar and kishore k. mandal, jj.1. respondent no. 6 of c.w.j.c. no. 4362 of 1990 (sahdeo prasad yadav v. the state of bihar and ors.), the pre-emptor, has preferred this appeal in terms of clause 10 of the letters patent of the patna high court. he is aggrieved by the judgment dated 22.4.1999, whereby the writ petition at the instance of the purchaser has been allowed, the order of the authorities under the bihar land reforms (fixation of ceiling area and acquisition of surplus land) act 1961 (hereinafter referred to as the 'ceiling act'), has been set aside, and the pre-emption application has been rejected. we shall go by the description of the parties occurring in the writ petition.2. respondent no. 6 of c.w.j.c. no. 4362 of 1990 (appellant herein) had purchased khesra.....

Judgment:

Sudhir Kumar Katriar and Kishore K. Mandal, JJ.

1. Respondent No. 6 of C.W.J.C. No. 4362 of 1990 (Sahdeo Prasad Yadav v. The State of Bihar and Ors.), the pre-emptor, has preferred this appeal in terms of Clause 10 of the Letters Patent of the Patna High Court. He is aggrieved by the judgment dated 22.4.1999, whereby the writ petition at the instance of the purchaser has been allowed, the order of the authorities under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961 (hereinafter referred to as the 'Ceiling Act'), has been set aside, and the pre-emption application has been rejected. We shall go by the description of the parties occurring in the writ petition.

2. Respondent No. 6 of C.W.J.C. No. 4362 of 1990 (appellant herein) had purchased Khesra No. 189, appertaining to Khata No. 32, by two registered deeds of absolute sale of 19.7.1974, one from Thakur Prasad Mandal, and the other one from Ram Narayan Mandal. He had purchased another piece of land by registered deed of absolute sale of 19.7.1974 from Sahdeo Prasad Yadav (the writ petitioner). The writ petitioner had from a different person purchased 1.19 acres of land of Khesra No. 189, appertaining to Khata No. 32, Mauja Tapka, District- Katihar, being the vended plot for the purpose of the proceedings under Section 16(3) of the Ceiling Act.

3. Respondent No. 6 filed an application under Section 16(3) of the Act before the learned Land Reforms Deputy Collector, Katihar, claiming pre-emption with respect to the vended plot. His case was that he was an adjoining raiyat of the vended plots on the strength of the aforesaid sale deeds of 19.7.1974. The claim for pre-emption was allowed by order dated 26.12.1980 (Annexure-3), passed by the learned Land Reforms Deputy Collector, Katihar (hereinafter referred to as the 'L.R.D.C.'), whereby he held that respondent No. 6 was an adjoining raiyat of the vended plots and the writ petitioner (the purchaser) was neither an adjoining raiyat nor a co-sharer with respect to the vended plots. Aggrieved by this order, the writ petitioner preferred appeal which was allowed by order dated 23.9.1983/3.11.1983 (Annexure-4), passed by the learned Collector of the district of Katihar, in Case No. 474 of 1980/203 of 1982-83/26A of 1983-84 Sahdeo Prasad Yadav v. Hem Narayan Yadav, whereby the order of the learned L.R.D.C. was set aside, and the matter was remitted back to the learned Additional Collector (Ceiling) for disposal in accordance with law and after holding a local inspection. The learned Additional Collector (Ceiling), Katihar, held a local inspection and dismissed the appeal by his order dated 30.5.1984 (Annexure-5), passed in Case No. 13 of 1984, and upheld the order of the learned L.R.D.C. The writ-petitioner (Sahdeo Prasad Yadav), therefore, preferred the aforesaid writ petition which has been allowed by the impugned judgment on the ground that the vended plot is homestead land, is beyond the purview of Section 16(3) of the Ceiling Act, and has rejected the pre-emption application. Hence this appeal at the instance of respondent No. 6, the pre-emptor, asserting his right of pre-emption.

4. While assailing the validity of the impugned order, learned Counsel for respondent No. 6 (the appellant herein) submits that the unmistakable position is that the land in question has been described in the sale-deed as Bhit-II land, which has been so found by both the authorities under the Ceiling Act. He next submits that the finding recorded by the authorities under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act 1956 (hereinafter referred to as 'the Consolidation Act' ) cannot in any way affect the proceedings under the Ceiling Act in view of the non-obstante clause incorporated in Section-3 of the Ceiling Act. He next submits that the authorities under the Ceiling Act have the powers of Civil Court to decide the issues of facts in terms of Section 33 of the Act. In view of the position that Section 43 of the Ceiling Act bars the jurisdiction of the Civil Court, the finding under the Ceiling Act has become final. He next submits the finding of facts recorded by the learned appellate authority have been set aside by the learned writ court for invalid reasons. He did not prefer revision application in terms of Section-32 of the Ceiling Act, the last forum of facts. He also submits that the vendors were parties to the proceedings throughout till the stage of the writ proceedings and have chosen not to enter appearance at any stage. In any case, they are not necessary parties in view of the provisions contained in Section 16(3)(iii) of the Ceiling Act which, inter alia, provides that conveyance has to be done by the transferee. The learned appellate authority did not carry out the terms of the remand order in accordance with the direction in the order.

5. Learned Counsel for respondent No. 1 submits that the proceedings under the Ceiling Act and the Consolidation Act are independent proceedings, there is no conflict between the provisions thereunder, and the findings in one cannot affect the proceedings under the other Act. He relies on the following reported judgments:

(i) : [1980]3SCR1159 (Ambika Prasad Mishra v. State of U.P. and Ors.);

(ii) 1989 P.L.J.R. 1203 (Kalika Kuar alias Kalika Singh v. The State of Bihar and Ors.).

5.1 He next submits that Section-3 of the Ceiling Act contains non-obstante clause. He relies on the judgment of this Court, reported in : AIR1976Pat193 (Smt. Dil Kuer and Ors. v. Hari Chandar Prasad and Ors.). He next submits that the issues are concluded by findings of facts recorded by the two authorities under the Act and it was, subject to exceptional circumstances, not open to the learned writ court to reverse the findings of facts. He relies on the judgment of this Court, reported in 1990 (2) P.L.J.R. 330 (Randhir Choudhary v. The State of Bihar and Ors.). He also submits that the writ petitioner ought to have moved the learned revisional authority before approaching this Court. He also submits that, in view of the provisions of Section 16(3), read with Section 2(f) of the Ceiling Act, in order that a homestead may be beyond the purview of Section 16(3) of the Ceiling Act, it has to be homestead of a land-holder. In his submission, there is no material on record that it was homestead of the land-holder. He relies on the following reported judgments:

(i) 1971 B.L.J.R. 974 (Kamlakant Goswami v. Balgovind Sah and Ors.);

(ii) 1976 P.L.J.R. 134 (Mahabir Prasad and Ors. v. The State of Bihar and Ors.).

5.2 He next submits that the homestead must include a permanent structure which has on facts not been so found by the authorities under the Act. He relies on the judgment of the this Court in Mahabir Prasad and Ors. v. The State of Bihar and Ors. (supra).

6. Learned Counsel for the writ petitioner (respondent No. 5 herein) has supported the impugned judgment. He submits that the Assistant Consolidation Officer passed orders under Section 10(3) of the Consolidation Act after hearing the parties including respondent No. 6. The same was upheld in appeal in terms of Section-10(6) of the Consolidation Act. The three authorities under the Consolidation Act, in his submission, have consistently found ^^vkeckx edkue; lgu^^. He also submits that the appeal preferred by respondent No. 6 in terms of Section 10(6) of the Consolidation Act was also dismissed and has, therefore, attained finality. The same could have been challenged only in a suit. He next submits that law is well settled that homestead including orchard is beyond the scope of Section 16(3) of the Ceiling Act. He also submits that, after the authorities under the Consolidation Act had passed the orders, the Chak comprising the vended plot has been recorded as ^^vkeckx edkue; lgu^^, as evidenced by the Chak Khatiyan (Annexure-2). The same was prepared prior to the appellate order under the Ceiling Act and, therefore, binds the parties. He next submits that Section 39 of the Consolidation Act contains non-obstante clause and adds to the finality of the order under the Consolidation Act. He lastly submits that the learned appellate authority conducted a perfunctory local inspection and is, therefore, not fit to be relied upon.

7. We have perused the materials on record and considered the submissions of learned Counsel for the parties under the Ceiling Act. The factual position is that respondent No. 6 (the appellant herein), the pre-emptor, is an adjoining raiyat with respect to the vended plots on the strength of his sale-deeds of 1974. It is equally manifest that the writ petitioner (respondent No. 5 herein) is neither an adjoining raiyat nor a co-sharer with respect to the vended plots. Respondent No. 6 has, therefore, established his unassailable position so far as the primary requirement under Section 16(3) of the Ceiling Act is concerned.

8. The writ petitioner had not, and indeed could not have, at the commencement of the proceedings, set up his case based on the Chak which describes the vended plot as ^^vkeckx edkue; lgu^^. The land got the description under the Consolidation Act, during the pendency of the appeal under the Ceiling Act. The learned Collector of the district of Katihar had, while remitting the matter by order dated 23.9.1983/3.11.1983 (Annexure-4), directed the Additional Collector (Ceiling), inter alia, to examine the matter afresh with the two-fold directions in his order, namely, whether or not the application under Section 16(3) of the Ceiling Act had been filed in the appropriate form and, secondly, to determine the question whether or not the vended plot is 'homestead' after holding a local inspection.

9. It appears on a perusal of the order of the learned appellate authority that he held a local inspection in presence of the parties. The relevant portion of the order is reproduced hereinbelow for the facility of quick reference:

lekgrkZ egksn; ds funs'kkuqlkj fooknh tehu ds LFkkuh; tkWap nksuks i{kks ds vykos mifLFkr vU; O;fDr;ksa ds le{k fnukad 11&7&87 ds vijkg~u lEiUu fd;k rFkk izfroknh }kjk fd;s x;s fofgr jkf'k ls lEcfU/kr izi= dks ns[kk @ tkWp ds dze esa ;g fufoZokn ik;k fd fooknh tehu ds lsV mRrj ,oa nf{k.k rjQ izfroknh dh tehu gS tks fucaf/kr dsokyk }kjk cgqr igys gh [kjhnh xbZ Fkh rFkk [kfr;ku ds vuqlkj ;g tehu [ksrh ;ksX; gS ;|fi vihydrkZ }kjk ,d >ksiM+h mdr tehu ij cuk;k x;k gS A ijUrq mldks ns[kus ls irk pyrk gS fd mlesa u rks dksbZ fuokl djrk gS vkSj u fuokl ;ksX; ?kj cuk gqvk gS ek= gkseLVhM dh tehu fn[kkus ds fu;r ls mDr tehu ij ,d pkydk ?kj cuk;k x;k gS ftl ?kj ds vUnj u rks vihydrkZ dk dksbZ ifjokj Fkk vkSj u ml ?kj esa dksbZ ?kjsyw lkeku gh miyC/k Fkk A Hkwfe iw.kZr;k [ksfrgj gS vkSj ml ij [ksrh gksrh gS A vihydrkZ us LFky fujh{k.k esa gkseLVhM fn[kkus dh fu;r ls u;k&u;k Qwl dk rhu rjQ ls ?ksj dj bls ?kj dk LVDpj dk :i ns fn;k gS A

It is thus evident that, after the writ petitioner found the vended plot threatened by the claim of pre-emption, he took steps to convert it into a homestead and made hurried arrangements for the same for presentation during the course of local inspection but unfortunately failed to impress the authorities. We feel unhappy that the writ petitioner made an unholy attempt to interfere with the judicial process and to deflect the course of justice. We are of the view that the vended plot is not a homestead, and is purely agricultural land within the mischief of Section 16(3) of the Ceiling Act.

10. If the writ petitioner was, as he indeed is, aggrieved by this finding, he ought to have approached the revisional authority in terms of Section 32 of the Ceiling Act, being the last forum of facts. Law is well settled by a long line of cases that the forum of revision in terms of Section 32 of the Ceiling Act is of the widest amplitude and the Board of revenue is bound in law to examine all issues of facts and law arising in the revision application. We are not finding fault with the writ petitioner in approaching this Court directly without exhausting the alternative remedy. We are only of the view that had he approached the revisional authority, he had in law every opportunity of assailing the findings of facts recorded by the authorities of the learned first authority and the learned appellate authority, which is not available to him within the scope of writ proceedings. It is normally not permissible in writ jurisdiction, subject to exceptional circumstances, to upset the findings of facts recorded by the authorities under the Act.

11. We do not wish to entertain the contention advanced by the learned Counsel for the State of Bihar as well as respondent No. 6, that the writ petition is fit to be dismissed on the ground that the writ petitioner has approached this Court without exhausting the forum of revision for the reason that such an objection could have been entertained soon after the writ petition was filed. Not only was such an objection not raised at the earliest opportunity, the same does not seem to have been raised at all before the learned Single Judge. The writ petition was lodged in this Court on 18.7.1990, was disposed of on 22.4.1999, the present appeal was lodged in this Court on 6.2.1999, and is being disposed of today. Allowing the objection at this stage would be a travesty of justice. The contention as to maintainability of the writ petition is rejected.

12. Learned Counsel for the petitioner submits that the authorities under the Consolidation Act have recorded a clear finding of fact that the vended plot is homestead. We are not impressed by the submission, inter alia, for the reason that such a plea was not available to him at the time when the application under Section 16(3) of the Ceiling Act was filed. Secondly, as has been found by the learned appellate authority, the writ petitioner made attempts to save the land from the operation of Section-16(3) of the Ceiling Act by engineering a device which has been disapproved of. Thirdly, both the Acts incorporate non-obstante clause. Law is well settled that the proceedings under the two Acts are independent proceedings, the scope of both are different and distinct, and one does not affect the other. In view of the position that we are dealing with an application under Section 16(3) of the Ceiling Act, the non-obstante clause to be found therein will prevail. We are, therefore, of the view that the findings, if any, obtained by the writ petitioner in the proceedings under the Consolidation Act is of no avail to him in the present proceedings, apart from the unethical action on his part.

13. In view of the foregoing discussion, we do not feel the necessity of examining the other submissions advanced by learned Counsel for the parties.

14. In conclusion, we respectfully disagree with the order of the learned writ court. The order dated 30.5.1984 (Annexure-5), passed by the learned Additional Collector (Ceiling), Katihar, in Case No. 13 of 1984 is hereby restored.

In the result, this appeal is allowed. In the circumstances of the case, there shall be no order as to costs.