IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5500 of 2005 Noorul Hoda son of Sk. Habibur Rahman R/o vill-Satvita Tola Bhagwanpur, P.S. Jokihat, Dist. Araria. --- Petitioner Versus 1. The State of Bihar 2. The Collector, Dist-Araria 3. The Deputy Collector Land Reforms, Dist. Araria --- Respondent First Set 4. Bibi Soghra wife of Khalil 5. Khalil Son of Injar Ali Both R/o vill-Bhagwanpur, Tola Satvita P.S. Jokihat Dist. Araria --- Respondent 2nd Set. 6. Abdul Salam son of Idris R/o vill. Bhagwanpur, Tola Satvita, P.S. Jokihat Dist. Araria ---Respondent 3rd set. For the petitioner : Mr. A.B.Ojha, Advocate. For respondent no. 4 & 5 :Mr. Sarangdhar. Jha, Advocate For respondent no. 6 : Mr. Bijoykant Mishra, Advocate. ----------- 07 23.03.2011 Heard the parties. Petitioner by filing the present application under Article 226 of the Constitution of India has prayed for quashing of resolution dated 28.03.2005, passed by the Additional Member, Board of Revenue (Annexure-1), whereby the revision application preferred by the vendors( respondent nos. 4 and 5) was allowed and the appellate order dated 14.07.2004 was quashed. Claim of pre-emption was negated. Before proceeding further it is noted that during the pendency of this application respondent no.5, namely, Khalil, died leaving behind the sole heir (his widow) who is already on record as respondent no.4. Background facts leading to the present case may briefly be stated as under:- On 14.10.2000. respondent nos. 4 and 5 sold piece(s) 2 of land in favour of respondent no.6 admeasuring a total area of 0.67 decimals appertaining to khata no. 80/237, plot no. 1092, thana no. 218, Touzi no. 8/1 situated at mouza Bhagwanpur, in the District of Araria. As stated above the sale deed was registered on 14.10.2000. Within the time prescribed under the provision of Bihar Land Reforms ( Fixation of Ceiling Area and Acquisition of Surplus Land) Act ( For short „Act‟) an application was filed by the writ petitioner under Section 16(3) of the Act claiming right of pre-emption in respect of the vended land(s). Such claim was raised on the ground that writ petitioner is adjoining raiyat of the vended land. Respondent no.4 appeared in the said proceeding and filed a petition stating therein that the said sale deed was cancelled by executing a deed of cancellation on 15.01.2001. It was, thus, the claim of the vendor that there was no sale in the eye of law and as such the right of pre-emption raised by the writ petitioner would fail. In spite of notice the purchaser of the land under subject sale deed did not appear and file any reply/show cause. The respondent D.C.L.R., by order dated 10.09.2001 (Annexure-5 to the supplementary affidavit), rejected the claim of pre-emption concluding therein that there has been non compliance with Rule 19(3) of the Rules framed under the Act and that since there was no sale in the eye of law, there was no question of allowing claim of pre-emption. Aggrieved by the aforesaid order, the writ petitioner preferred appeal being appeal no. 14 of 2001-02. The appellate Court by proceeding dated 14.07.2004 3 (Annexure-2) allowed the appeal preferred by the writ petitioner whereby claim of pre-emption was upheld. Respondent appellate authority found that provision contained in Rule 19(3), violation whereof were alleged by the respondents, were directory in nature. It was also held that the sale was complete on 14.10.2000 and deed of cancellation executed on 15.01.2001, cannot defeat the claim of pre-emption. Aggrieved by the aforesaid order, respondent nos. 4 and 5 preferred revision before Board of Revenue which gave rise to case no. 181 of 2004. Respondent Additional Member Board of Revenue by impugned resolution date 28.03.2005, allowed the revision application preferred by the respondents on the ground that the right of pre-emption is a weak right. By virtue of the deed of cancellation executed on 15.01.2001 there was no sale in the eye of law as such claim of pre-emption would fail. Aggrieved by the said order, the pre- emptor/writ petitioner has filed the present writ petition. Mr. Ojha, learned counsel for the petitioner, submitted that the following issues fall for consideration in the present application:- (i)Whether sale deed can be ignored by executing deed of cancellation and that too during pendency of the proceedings. (ii) Whether there has been any violation of Rule 19(3) and if so whether the same would be fatal. This Court proposes to take up the second issue first. It is admitted position that the vendor and the vendee were made parties to the proceedings initiated under Section 16(3) of the 4 Act. Rule 19(3) of the Rules framed under the Act states as under:- “(3) A copy of the said application shall also be sent simultaneously by the applicant to the transferor and the transferee by registered post with acknowledgement due.” It is thus seen that the copy of the said application was required to be sent simultaneously by the applicant to the transferor and the transferee by registered post with acknowledgement due. Learned counsel appearing on behalf of the respondents in view of the provision of Rule and interpretations thereof conceded that non furnishing of the application by the applicant to the transferor and the transferee in the manner stated therein would not prove fatal in view of the fact that they were already made parties to the proceeding and heard. This issue, therefore, does not require to be dealt with any further in view of the agreement at bar that the same, in the facts and circumstances of the case, can be said to be directory in nature and non compliance therewith will not render the proceeding invalid. Adverting to the first issue, learned counsel for the petitioner submitted that in view of the provisions contained in the Transfer of Property Act, such deed of cancellation (Annexure-4), executed during the pendency of the proceeding before the respondent D.C.L.R. shall have no effect in the eye of law. Reliance in this regard has been placed on judgment of this Court rendered in Tiwari Rai versus State of Bihar & Ors. 5 2008(1) PLJR 702 (D.B.) and 1999(3) SCC 573 Vidhyadhar vs. Manikrao & Anr. Per contra, learned counsel for the respondents submits that by reason of execution of deed of cancellation (Annexure- 4), no sale in the eye of law had taken effect, and as such, there was no question of allowing claim of pre-emption raised by the writ petitioner. He relies on a judgment of this Court since reported in 1979 BBCJ 179 ( Kamaldhari Rai vs. The State of Bihar & Ors.) and 1989 PLJR 103 (Ram Chandra Singh & Ors. vs. The Subdivisional Officer, Hajipur & Ors.). Said question/issue fell for consideration before the Division Bench of this Court in the case of Tiwari Rai (Supra). While dealing with the said issue Division Bench took notice of judgment of a learned Single Judge of this Court in the case of Ramchandra Singh and ors (AIR 1989 Patna 50 = 1989 PLJR 103) as also the earlier judgment of Division Bench of this Court rendered in Kamaldhari Rai (supra) as would appear from para 6 of the report (at page 704) . This Court in the said judgment found that in Kamaldhari Rai (Supra) the sale was effected without permission under Section 5 of Bihar Consolidation of Holdings and Prevention of Fragmentation Act 1956 and was void. Relying on the aforesaid fact it was further contended by the vendor before the Division Bench that no consideration money was paid to him by the purchaser. The purchaser also stated that no consideration was paid to the vendor. The Division Bench in Kamaldhari Rai (Supra), thus, 6 found that there was no valid transfer as no consideration money had passed between the vendor and the vendee. The Division Bench dealing with Kamaldhari Rai (supra), however, did not take into consideration the implication of Section 54 of the Transfer of Property Act. Dealing with judgment of learned Single Judge in the case of Ramchandra Singh and others (supra), it has been held that learned Single Judge rightly considered the question whether the title from the vendor to the vendee passed on execution and registration of the sale deed despite non payment of consideration money would entirely depends upon the intention of the parties to be gathered from the recitals made in the sale deed. However, since there was already a judgment of a Division Bench of this Court in Kamaldhari Rai (supra) it was held that non payment of consideration would make the transfer void. Learned Judges dealing with case of Tiwari Rai ( supra) in para 7 and 10 set out the provision contained in Section 54 and 55 respectively of the Transfer of Property Act. Having noticed the relevant provision of the said Act the Division Bench in para 11, 12, 13 and 14 held as under:- “11. Clause (b) of sub-section (4) of Section 55 of the Transfer of Property Act makes it clear that the unpaid purchase money forms a charge upon the property in the hands of the buyer as well as a transferee without consideration or any transferee with notice of non-payment for the amount of the unpaid purchase money and, accordingly, the right of the vendor is recognized by the Transfer of Property Act in case of non- payment of the purchase consideration is to sue for the same and to recover the sum by 7 enforcing the charge upon the property sole. 12. In law there is no concept of a deed of cancellation. Cancellation of an instrument can be effected only by a Civil Court under the provisions of Section 31 of the Specific Relief Act, 1963. However, it is doubtful whether even under Section 31 of the Specific relief Act, 1963 an unpaid vendor can seek to have a sale deed cancelled on the ground of non payment of the consideration money, inasmuch as remedy in such case has been specifically provided in the Transfer of Property Act. 13. In a recent judgment of the Hon‟ble Supreme Court in the case of Vidyadhar vs. Manik Rao & Another; reported in 1999(3) SCC 573, the Hon‟ble Supreme Court has made it absolutely clear that a sale effected on promise to pay consideration in future cannot be put to an end for non-payment of consideration money. The thing that is required to be seen is whether the transfer has taken effect or it stand postponed till the payment of the consideration money. If the sale has taken effect in consideration of promise to pay the consideration money in future, the sale cannot be avoided for non- payment of the consideration money as was agreed. In such situation, the remedy of the unpaid seller would be to take recourse to law for enforcement of the charge created in the property sold by the Transfer of Property Act itself and that is by initiating a suit in a Civil Court. 14. In those circumstances, the conclusion would be that the transfers took place on execution and registration of the subject sale deeds, but the vendors are unpaid sellers and the consideration money due to them is charged to the lands sold thereunder.” Mr. Ojha, referring to the recitals made in the impugned sale made on 14.10.2000 (Annexure-3), submitted that there was no such contemplation therein that consideration money or part thereof would be paid subsequently. It is submitted from the recitals made in the said sale deed (Annexure-3), it would appear 8 that the intention of both the parties was to transfer the title on the date of execution/registration of the sale document. It is submitted that once an application raising claim of pre-emption was filed on 14.12.2000 the vendors executed a deed of cancellation on 15.01.2001 in order to nullify the pending proceeding. It is submitted with reference to the deed of cancellation (annexure-4), that the same was maliciously brought into existence reciting therein that part of the consideration money was not paid to the vendor. Learned counsel for the petitioner also highlighted that in the present proceeding the purchaser has not taken any interest inasmuch as no show cause was filed on his behalf before the respondent D.C.L.R.. It is thus submitted that the case law on which respondents/vendors are relying upon have been differentiated in the subsequent Division Bench judgment of this Court rendered in the case of Tiwari Rai (supra). Learned counsel for the respondents has not been able to controvert the aforesaid submission of the petitioner that the Division Bench judgment of this Court rendered in Kamaldhari Rai (supra) was distinguished and not relied upon by the learned Judges constituting Division Bench who dealt with case of Tiwari Rai (Supra) Having heard the parties and after going through the materials on record, this Court finds that there is no recital in the subject sale deed (Annexure-3) that consideration money or part thereof was/were paid or was promised to be made. On the 9 contrary, the vendor acknowledge receipt of consideration money. It further appears therefrom that the intention of the parties were very clear and that is to transfer the title and interest in respect of the land on the execution/registration of the sale- deed. This Court further finds that the deed of cancellation was executed during the pendency of the proceeding before the respondent D.C.L.R. reciting therein that part of the consideration money was not paid. This was a ploy on behalf of the vendors to defeat the lawful claim of pre-emption raised by the writ petitioner. True it is that pre-emption is a weak right. It can be defeated by bonafide means. Nonetheless the Court is required to keep in mind that this is mandate of the legislature. It can be defeated only by adopting a procedure having sanction of law. This Court, thus, is of the view that deed of cancellation (Annexure-4) executed during pendency of the pre-emption application was not a bonafide means to defeat the legal right of the pre-emptor. If the case of the respondents (vendors) is to be accepted then there may be a situation where in all cases of pre-emption the vendors by executing such deed not having the sanction of law would defeat the lawful claim of pre-emption. The legislature did not contemplate such situation. In view of my discussions made above, this Court is persuaded to allow the present writ application. Accordingly the application is allowed. Impugned resolution dated 28.03.2005, passed by the Additional Member, Board of Revenue (Annexure-1), is quashed and set aside and the order dated 10 14.07.2004(Annexure-2), passed on appeal no. 14 of 2001-02 is restored. There shall be no order as to costs. Sym/ ( Kishore K. Mandal, J.)