IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 14925 of 2009 1. MD.ARSHAD HUSSAIN S/O LATE OF MD.ABDUL VILL- RAMAAI TOLA MURGIACHAK, P.O. SANAHULA , VIA- GHAGHA, P.S- SANAHULA DISTT- BHAGALPUR Versus 1. THE STATE OF BIHAR THROUGH REGISTRAR, JUDGESHIP DISTT- BHAGALPUR COURT 2. MD. AIYUB HASAN S/O LATE MAULVI LEAQUAT HUSSAIN VILL- DEOKUNDA, P.O CHAKNATHOO, P.S SANHOULA,DISTT- BHAGALPUR (PURCHASER) 3. MD. SAKARIA S/O IRAFAN GHANI VILL- DEOKUNDA, P.O CHAKNATHOO, P.S SANHOULA,DISTT- BHAGALPUR (HOLDER OF POWER OF ATTRANEY) 4. MD. ABDUL S/O LATE S.K BHAGLI VILL- RAMAAI TOLA MURGIACHAK, P.O. SANAHULA , VIA- GHAGHA, P.S- SANAHULA DISTT- BHAGALPUR AT PRESENT RESIDING AT/P.O./P.S/- SENHA ,DISTT- LOHARDAGA(JHARKHAND) ----------- 2 06.01.2010 The petitioner has filed this application under Article 226 of the Constitution challenging the order dated 07.02.2009 passed by Sub Judge III, Bhagalpur in Pre-emption Case No 248 of 2004. I have heard the learned counsel for the petitioner at length. In my view, no case has been made for interference. The reasons are thus: Petitioner’s father (respondent No 4) had executed a Power of Attorney in favour of respondent No 3, inter alia, in respect of certain agricultural lands which were located in village – Sanhaulla under Sub Registry Office, Kahalgaon in the district of Bhagalpur. The said Power of Attorney Holder (respondent No 3) sold some of those agricultural lands to respondent No 2 Md Aiyub Hasan. Petitioner filed the present suit for pre-emption on the ground that the agricultural land being ancestral land, petitioner was co-owner –cum- co-sharer therein as per established Muslim Law and, thus, as per established Muslim Law, he had a 2 right to pre-empt the said sale. The suit was contested by the vendee. The vendee filed an application before the learned Sub Judge III, Bhagalpur wherein suit was pending for deciding the question of maintainability as a preliminary issue. The trial Court declined. The vendee then filed a review application which was also rejected. Against the two orders aforesaid, two civil revision applications were filed before this Court. The civil revision application against rejection of review application was taken up first. It was dismissed with clear observation that it would not affect any remedy against the substantive order. When the second revision application was taken up, which was against the substantive order of the learned Sub Judge rejecting to consider and try the preliminary issue of maintainability of the suit, the civil revision application was allowed and learned Sub Judge was directed to decide the preliminary issue of maintainability of the suit. Thus, on remand, the learned Sub Judge has held that in terms of Section 43 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961, the suit is barred. This is the finding that is under challenge. Learned counsel for the petitioner submits that the right of pre-emption in Muslim is a right separate from the right of pre- emption as granted under Section 16 of the Ceiling Act aforesaid. It is his submission that Section 43 of the Ceiling Act would not bar a Muslim from filing a Civil Suit exercising his right of pre- emption. Having considered the matter, in my view, the stand 3 taken by the petitioner is not correct. Section 3 of the Ceiling Act reads thus: 3. Provision of the Act to prevail over other laws.- The provisions of this Act shall have effect, notwithstanding anything to the contrary contained in any other law, custom, usage or agreement, for the time being in force or in any decree or order of any Court: Provided that nothing contained in this Act shall be deemed to have any effect on the provisions of the Bihar Bhoodan Yagna Act, 1954 (Bihar Act XXII of 1954). From this, it would be seen that the provisions of the Ceiling Act would prevail over any other law, custom, usage. Muslim Law is a customary Law and to the extent it is in conflict with the provisions of the Ceiling Act, this Section overrides but the question is is there a conflict between the provisions of this Act or the Muslim Law for that matter in so far as the facts of the present case relating to pre-emption is concerned. In my view, there is no such conflict. The reason is Section 16 (3) (i) of the Ceiling Act which runs as follows: 16. Restriction on future acquisition by transfer etc … … … … … … … … … … … … … … … … (3) (i) When any transfer of land is made after the commencement of this 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 the said deed: Provided that no such application shall be 4 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. … … … Thus, Section 16 (3) (i) of the Ceiling Act clearly provides that if any co-sharer transfers land to a third party then the other co-sharer, apart from others, would have a right of pre- emption. This is what Muslim Law also is. Thus, Section 16 (3) being a law of general application consistent even with Muslim Law, one has to follow the provisions of Section 16 (3) which is a special provision in respect of agricultural lands to which the Ceiling Act applies. This provision further lays down as to how the right of pre-emption has to be exercised by any person to whom this provision applies. If this Court is correct in holding that Section 16 (3) (i) would apply to Muslims as well then the procedure is prescribed therein as well. Muslim Law by itself does not provide the procedure. It only recognizes the right. Once we have an enactment of general application which prescribes the procedure then it is that procedure that has to be resorted to. If that be so then it is an application that has to be made to the Collector under the Act for exercising the right of pre-emption even by a Muslim. If that be so then we come to Section 43 of the Ceiling Act which is quoted here: 43. Bar of jurisdiction of Civil Court.- Save and except as provided in this Act, no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Board of Revenue, the appellate authority or the Collector. 5 (2) No order of the Board of Revenue, the appellate authority or the Collector made under this Act, shall be questioned in any Court. This provision clearly indicates that if under this Ceiling Act, anything is to be decided by or dealt with by, inter alia, the Collector then the jurisdiction of the Civil Court would be barred and a Civil Suit would, thus, not be maintainable. As noted above, the Collector has been conferred the jurisdiction to decide the pre- emption applications and if that be so then in terms of Section 43 of the Ceiling Act, the jurisdiction of the Civil Court is ousted. Thus, reading Section 3 alongwith 16 (3) (i) with Section 43 of the Ceiling Act, it cannot be said that the decision of the learned Sub Judge III, Bhagalpur in holding that the suit was not maintainable is wrong or vitiated in any manner. The writ petition, thus, merits no consideration and is dismissed accordingly. M.E.H./ (Navaniti Prasad Singh)