CIVIL WRIT JURISDICTION CASE No.10339 OF 1999 -------- In the matter of an application under Article 226 of the Constitution of India. ---------- KEDAR MISHRA, son of late Ram Kailash Mishra,resident of village – Kothara, P.S. Sasaram, District- Rohtas ……..Petitioner Versus 1.THE STATE OF BIHAR 2. The Additional Member, Board of Revenue, Bihar, Patna 3. The Additional Collector, Rohtas at Sasaram 4. The D.C.L.R., Rohtas at Sasaram …Respondents Ist Set. 5. Smt. Janak Dulari Devi, wife of Bir Bahadur Singh. 6. Rang Bahadur Singh, son of late Ganga Singh, 7. Munna Singh 8. Bajrangi Singh, 9. Sushil Singh, 10.Niraj Kumari. No. 7 to 10 are minors represented through their father and natural guardian, Rang Bahadur Singh. All are resident of village Nimia, P.S. Sasaram, District- Rohtas 11. Renu Devi, wife of Hanuman Singh, daughter of Rang Bahadur Singh, resident of Village- Muradabad, P.S. Sasaram, District- Rohtas …. Respondents 2nd Set. 12. Kalawati Devi, wife of Ram Kailash Tiwari, resident of village- Babhangawan (Khairi), P.S. Sasaram, District-Rohtas. 13. Dharamwati Devi, wife of Mukh Lal Pandey 14. Sunita Devi, wife of Mahendra Pandey. Both resident of village-Gorari,P.S. Karakat, District Rohtas. 15. Radhika Devi, wife of Brij Bihari Tiwari, resident of village-Indrath, P.S. Bikramganj, District- Rohtas. No. 12 to 15 are daughters of late Ramadhar Mishra, resident of Village- Kothara, P.S. Sasaram, District-Rohtas …….Respondents 3rd Set. 16. Kaushal Kishore Mishra, son of Ayodhya Mishra. 17. Bandana Mishra, wife of late Braj Kishore Mishra. Both resident of Village-Kothara, P.S. Sasaram, Dist- Rohtas ………Respondents 4th Set ……Respondents. CWJC No.10355 of 1999 KEDAR MISHRA son of late Ram Kailash Mishra,resident of village – Kothara, P.S. Sasaram, District- Rohtas ……..Petitioner 2 Versus 1. THE STATE OF BIHAR 2. The Additional Member, Board of Revenue, Bihar, Patna 3. The Additional Collector, Rohtas at Sasaram 4. The D.C.L.R, Rohtas at Sasaram …….Respondents Ist Set. 5. Bir Bahadur Singh, son of late Ganga Singh, resident of village- Nimia, P.S. –Sasaram District- Rohtas ……..Respondent 2nd Set. 6. Kalawati Devi, wife of Ram Kailash Tiwari, resident of village Babhamgawan (Khairi) P.S.Sasaram, District- Rohtas. 7. Dharmawati Devi wife of Mukh Lal Pandey. 8. Sunita Devi, wife of Mahendra Pandey. Both resident of village-Gorari, P.S.Karakat, District- Rohtas. 9. Radhika Devi, wife of Brij Bihari Tiwari, resident of village- Indrat, P.S.Bikramganj, District- Rohtas ….Respondents 3rd Set. 10. Kaushal Kishore Mishra, son of Ayodhya Mishra. 11. Bandana Mishra, wife of late- Braj Kioshore Mishra. Both resident of village-Kothra,P.S. Sasaram, District Rohtas … Respondents 4th Set………Respondents. CWJC No.10356 of 1999 KEDAR MISHRA , son of late Ram Kailash Mishra, resident of village- Kothara, P.S. Sasaram,District – Rohtas……….Petitioner Versus 1. THE STATE OF BIHAR 2. The Additional Member, Board of Revenue, Bihar, Patna. 3. The Additional Collector, Rohtas at Sasaram 4. The D.C.L.R., Rohtas at Sasaram ……Respondents Ist Set 5. Rang Bahadur Singh, son of late Ganga Singh,resident of Village- Nimia, P.S. Sasaram, District- Rohtas. 6. Kalawati Devi wife of Ram Kailash Tiwari, resident of village- Babhangawan(Khairi), P.S. Sasaram, District- Rohtas 7. Dharmawati Devi, wife of Mukh Lal Pandey. 8. Sunita Devi wife of Mahendra Pandey. Both resident of village-Gorari, P.S.Karakat, District- Rohtas. 9. Radhika Devi wife of Brij Bihari Tiwari, resident of village-Indrat, P.S. Bikramganj, District- Rohtas ……..Respondents 3rd Set 10. Kaushal Kishore Mishra, son of Ayodhya Mishra. 11. Bandana Mishra, wife of late Braj Kishore Mishra. Both resident of village-Kothara, P.S. Sasaram, District Rohtas ……Respondents 4th Set …..Respondents. 3 ------------- For the Petitioner (in all the cases): Mr. Y.V. Giri, Sr. Advocate. Mr. Raju Giri,Advocate Mr.Sanjeev Kumar Advocate For the Respondents State : Mr. K.P. Gupta, SC V ( in all the cases) Mr. Binod Kumar, A.C to SC- V Mr. Durendra Kumar, AC to SC –V Mr. Ashok Kumar Gupta, AC to SC-V For Respondents No. 5, 6 and 11: Mr. Kamal Nayan Choubey, Sr.Advocate Mr. Ambuj Narayan Choubey, Advocate Mr. Sidharth Harsh, Advocate Mrs. Ritu Priyadarshini, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON‟BLE MR. JUSTICE BIRENDRA PRASAD VERMA B.P. Verma,J. This batch of three writ petitions, at the instance of one and common writ petitioner, is the second round of litigation before this Court with respect to three pre-emption proceedings under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Land Ceiling Act). The petitioner herein is aggrieved by the order dated 31.8.1999, (Annexure-7) passed by the learned Additional member, Board of Revenue, Bihar, Patna analogously in Revision Case No. 174, 175 and 176 of 1996, whereby the claim of pre-emption made by the writ petitioner with respect to the lands in dispute has been dismissed and the impugned appellate orders dated 16.4.1996 (Annexure-4) passed in pre-emption Appeals No. 8/1995, 9/ 1995 and 10/1995 by the respondent Additional Collector, Rohtas at Sasaram, 4 have been affirmed. 2. We shall take the facts from the pleadings of the parties in C.W.J.C. No. 10339 of 1999, unless otherwise specifically referred to in relation to other two connected writ petitions. 3. The facts relevant for determination of the issues involved in the present litigation are portrayed herein below: On 6.2.1988 one Ramadhar Mishra (now deceased), father of respondent nos. 12 to 15, executed three sale deeds transferring his share of lands for valid consideration amount. First sale deed was executed in favour of one Bir Bahdur Singh with respect to land of chak khata No. 55, chak plot No. 128, area being 47 decimals only, out of total area of 2.82 acres. Second sale deed was executed in favour of Rang Bahadur Singh (respondent no.-6) with respect to 47 decimals of land of aforesaid chak plot No. 128 appertaining to chak khata No. 55. Third sale deed dated 6.2.1988 was executed in favour of Smt. Janak Dulari Devi (Respondent No.-5), wife of aforesaid Bir Bahadur Singh, and Smt. Kamla Devi (since deceased), wife of aforesaid Rang Bahadur Singh, with respect to chak khata No. 55 , chak plot No. 105, area 40 decimals, out of total area of 1.20 acres. All the aforesaid plots of land are situate at Mauza Nimia P.S. Sasaram, District-Rohtas (hereinafter referred to as the lands in dispute). All the aforesaid three sale deeds dated 6.2.1988 were duly registered on 27.4.1991. 4. The petitioner filed three separate applications with respect to aforesaid three registered sale deeds under section 16(3) of the Land Ceiling Act before respondent D.C.L.R., Sasaram, claiming 5 his right of pre-emption with respect to vended plots on the ground of being co-sharer as also the boundary raiyat of the vendor Ramadhar Mishra. On the basis of aforesaid petitions of the petitioner Case Nos. 12 of 1991-92, 13 of 1991-92 and 14 of 1991-92 were registered with respect to aforesaid three sale deeds as referred to above respectively. The petitioner claimed there in his applications that all the lands were originally belonging to Ram Kailash Mishra, who had three sons namely (a) Ramadhar Mishra (vendor) (b) Kedar Mishra (Pre-emptor) (c) Ayodhaya Mishra. It was further pleaded that partition has not taken place amongst co-sharers by metes and bounds and they are governed by Mitakshara School of Hindu law, as such he is not only the co-sharer, being the full brother of the vendor, rather he is also a adjoining raiyat of the vended plots. 5. On service of notice purchasers appeared in the aforesaid pre-emption cases and filed their respective show cause resisting the claim of pre-emption of the petitioner primarily on two following grounds; (a) The pre-emptor has not complied with the requirement of section 16(3) of the Land Ceiling Act read with Rule 19 of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules 1963 (hereinafter referred to as the „Rules‟ in short) and therefore, all the three pre-emption applications are fit to be rejected. (b) They are not only the purchasers of the vended plots, but they are also the boundary raiyat of the same on the ground that their family members are the owners of the adjacent plots. According to them one Radhe Singh had four sons namely (a) Ramchalitra Singh 6 (b) Dalip Singh(c) Ganga Singh and (d) Ramadhar Singh. Purchasers Bir Bahadur Singh and Rang Bahadur Singh are sons of aforesaid Ganga Singh and they are full brothers. Other purchasers viz. Smt. Janak Dulari Devi is the wife of aforesaid Bir Bahadur Singh and Smt. Kamla Davi is the wife of aforesaid Rang Bahadur Singh. Uncle/aunt of aforesaid Bir Bahadur Singh and Rang Bahadur Singh are the adjoining raiyats of the vended plots. According to them also partition has not taken place by metes and bounds amongst the sons of aforesaid Radhe Singh and they are also governed by Mitakshara School of Hindu Law. On that strength purchasers also claimed to be boundary raiyats. 6. The respondent D.C.L.R., Sasaram heard all the three pre-emption applications filed by the petitioner together and by a common order dated 10.7.1995 (Annexure-3) allowed the same on the ground that the petitioner was a co-sharer of the vendor. 7. Purchasers, being aggrieved by the aforesaid order dated 10.7.1995, filed three separate Pre-emption Appeal Nos. 8/ 1995, 9/1995 and 10/1995, which all were heard together and were allowed by a common order dated 16.4.1996 (Annexure-4), impugned herein, by the respondent Additional Collector, Rohtas, Sasaram, holding therein that the purchasers and their co-sharers are descendants of their common ancestor Radhe Singh and there has been no family partition by metes and bounds. Therefore, the purchasers are also the adjoining raiyats of the vended plots, and they, being the purchasers as also the boundary raiyats, have got better right than that of the pre-emptor. The learned Appellate Authority has 7 further held that the requisite amount for filing pre-emption case was not deposited by the pre-emptor in favour of the Collector under the Act i.e. the D.C.L.R., Sasaram. On that ground also the pre-emption applications filed by the petitioner were held to be not maintainable. 8. Petitioner, being aggrieved by the aforesaid impugned appellate order, preferred Revision Case Nos. 174 of 1996, 175 of 1996 and 176 of 1996, which were heard together and were allowed by a common order dated 19.3.1997 (Annexure-5) by the learned Additional member, Board of Revenue, Bihar, Patna and impugned appellate order was set aside. 9. Thereafter three writ petitions, bearing C.W.J.C. No. 8217 of 1997 (Bir Bahadur Singh V. State of Bihar & ors), C.W.J.C. No. 8237 of 1997 (Rang Bahadur Singh V State of Bihar & ors) and C.W.J.C. No. 7039 of 1997 (Janak Dulari Devi and others Vs. State of Bihar & ors), challenging the validity and legality of the revisional order dated 19.3.1997 (Annexure-5) were preferred by the purchasers of the lands in dispute. All the aforesaid three writ petitions were heard together by a learned Single Judge of this Court and were disposed of by a common order dated 24.9.1998 (Annexure-6) setting aside the revisional order dated 19.3.1997 (Annexure-5) and remitting the aforesaid three revision applications to the Board of Revenue, for a fresh decision in the light of the observations and directions issued by this Court, relevant portion of which is reproduced hereinbelow: “................. For the reasons aforesaid, I set aside the similar revisional order dated 19.3.1997 and remit the case Nos. 173 of 1996, 174 of 1996 and 175 of 1996 to the Board of Revenue for decision afresh after notice and hearing the parties. The revisional authority will determine the issue as to 8 whether the pre-emptor-respondents had deposited the consideration money along with 10% amount in favour of the Collector under the Act, in accordance with law or not. If the issue is decided against the pre-emptor respondents then he will dismiss the revision application. If the said issue is decided in favour of the pre-emptor then he will determine the claim of the parties on merit. Before deciding the claim on merit. The revisional authority is bound to discuss the legality and propriety of the appellate order. If any illegality, irregularity or impropriety is found in the appellate order and/or/the said order is found to be perverse then only the revisional authority will interfare with the matter and give its finding in one or other way which may be based on evidence and led by one or other parties. The petitioners and contesting-respondents will appear before the Board of Revenue personally or through their counsel on or before 31.10.1998, when the said authority will fix a date of hearing and after hearing the parties the cases be disposed of at an early date preferably within a period of four months from the date of appearance of the parties.” (Emphasis added) 10. On remand, matter was heard afresh by the Additional Member, Board of Revenue, and by a common resolution dated 31.8.1999 (Annexure-7), impugned herein, all the three revision cases have been dismissed by recording a finding of fact that the Pre- emptor had not deposited the requisite amount of money in favour of the collector under the Land Ceiling Act of the area concerned. Therefore, in terms of the order dated 24.9.1998 (Annexure-6) passed by a learned Single Judge of this Court claim of pre-emptor was rejected. 11. Mr. Y.V. Giri, learned senior counsel, appearing on behalf of the petitioner, while assailing the impugned order, has submitted that petitioner, admittedly being the full brother of the 9 vendor Ramadhar Mishra, is the co-sharer as also boundary raiyat of the vended plots, therefore, the revisional authority has committed an error in law in rejecting his claim of pre-emption. By referring to Treasury Challans (Annexure-2 series), it was submitted that the requisite amount of money for filing the pre-emption case was deposited under head 0029 LR, therefore, this should be treated to be sufficient compliance of the requirements of Rule 19 and Form L.C. 13 of the Rules, as the money deposited by the petitioner could be withdrawn by the District Collector in terms of order passed in the pre-emption proceeding. He has placed his reliance on a Division Bench Judgment of this Court in Ram Paras Choudhary V State of Bihar, reported in 1993(2) PLJR 260, in support of his contention that the requirements of Rule 19 and Form L.C. 13 of the Rules are, directory in nature and even if, there has been no strict compliance of the said Rules, the claim of pre-emptor cannot be rejected. He also brought to our notice Rule 543 and Appendix 7 of Bihar Treasury Code, with which we shall deal at an appropriate place. 12. Mr. K.N. Choubey, learned senior counsel, appearing on behalf of the purchasers, while supporting the impugned order, has submitted that by long lines of judgment, right of pre-emption has been held to be a weak right and that can be defeated by any legitimate means. In his submission vendees are also adjoining raiyats of the vended plots, as their family members/co-sharers are undisputedly having the lands in the vicinity of the vended plots and, therefore, equity is in their favour and against the pre-emptor (petitioner). He further submitted that by a common order dated 10 24.9.1998 (Annexure-6) passed by a learned Single Judge of this Court, the matter was remanded to the Board of Revenue for afresh decision on limited issue. The petitioner had not objected to the aforesaid remand order and further the petitioner did not challenge the aforesaid remand order in appeal before any appropriate forum, therefore, any decision taken by the revisional authority, on remand, will operate as res-judicata or constructive res judicata and the petitioner cannot be permitted to challenge the same on any other ground. He has submitted that petitioner has not deposited the requisite amount of money for filing pre-emption cases in favour of the Collector under the Land Ceiling Act of the area concerned and, therefore, there has not been sufficient compliance of Rule 19 and Form L.C. 13 of the Rules. Thus the Pre-emption applications have rightly been held to be not maintainable and have been accordingly rejected. In support of his contention he has placed reliance on the following judgments: 1.Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another, A I R 1960 SC 941( Pr 7 + 8). 2. State of West Bengal v Hemant Kumar Bhattacharjee and others, AIR 1966 SC 1061 (Pr 14) 3. Punydeo Sharma & ors v. The Additional member, Board of Revenue, 2004(3) PLJR 838 4. Nazir Ahmad v King Emperor, A I R 1936 Privy Council 253(2) 13. In order to appreciate the issues involved in the present proceedings, it is relevant to quote section 16(3) of the Land Ceiling Act, which is reproduced hereinbelow: 11 “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, already held by him exceeds in the aggregate the ceiling area. xxx xxx xxx xxx xxx xxx (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 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 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 there of 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.” (Emphasis added) 13. (1) Rule 19 and Form L.C. 13 of the Rules are also relevant for the said purpose and are reproduced herein below:- 12 “19. Application by co-sharer or a raiyat of adjoining land for transfer of land under Section 16(3).-(1) Application by co-sharer of adjoining land for transfer of land under Section 16 (3) shall be in Form L.C.13 and the purchase money together with a sum equal to ten percent thereof shall be deposited in the Treasury/Sub-treasury of the district within which the land transferred is situated. (2) A copy of Challan, showing deposit of the amount under sub-rule (1) together with a copy of the registered deed, shall be filed along with the application in which also a statement to his effect shall be made. (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. (4) The Collector shall issue a notice to the transferor, the transferee and the applicant to appear before him on a date to be specified in the notice and after giving the parties concerned a reasonable opportunity of showing cause, if any, and of being heard, shall by an order in writing, either allow the application in accordance with clause (iii) of sub- section 3 of Section 16, or reject it. (5) If the application is allowed under item (iii) of sub-section (3) of Section 16 and the transferee is directed by the collector by any order to convey the land in favour of the applicant by executing and registering a document of transfer, the applicant shall be required to pay the registration fee. (6) Where the application is allowed and the transferee conveys the land in favour of the applicant under Section 16(3) (iii), the transferee shall be allowed to withdraw the money deposited by the applicant. FORM L C. 13 Form of application by a co-sharer or a riayat of adjoining land for transfer of land to him under Section 16 (3)(i) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961 (Bihar Act XII of 1962) To The Collector (Appointed under Bihar Act XII 13 of 1962) ………………………………………………………. ……………………………………………………… Sir, I, the under mentioned co-sharer raiyat /raiyat of the land adjoining the land of the raiyat, named………………….of village/town …………….P.S……………..Sub- division……………….District……………. beg to state that transfer of……………. Acre/acres of the land as described in the Schedule I attached hereto has been made by the aforesaid raiyat to a person/persons other than the co-sharer or a raiyat of adjoining land through a document registered on the…day of …. 20…. Under the Indian Registration Act, 1908. 2. I beg to enclose the following documents:- (i) A copy of District/Sub-Treasury/Treasury Challan bearing No. … dated the …… day of …… 200 ………. In token of having deposited a sum of Rs….. equal to ten percent thereof to the credit of the Collector under the Act of the area concerned, namely (ii) A copy of the registered deed by which the land has been transferred by the raiyat transferor: 3. As I am a co-sharer of the transferor/a raiyat, holding land as described in Schedule II attached hereto, adjoining the land specified in Schedule I, I hereby make this application that the land transferred by the aforesaid transferor raiyat be transferred to me on the terms and conditions contained in the said deed. 4. I request that pending decision of this application, I may be declared to be entitled to be put in possession of the land with immediate effect. Yours faithfully Signature of the applicant (name in Block letters) Place of filing Application……….. Address………………… Date……………… Village………………… Police-Station Post Office Sub-division……………. 14 (Emphasis added) 14. We have perused the materials available on record and considered the elaborate submissions made by the learned counsels appearing on behalf of the parties. From the pleading of the parties, it is apparent that the petitioner had deposited the required amount of money i.e. the consideration amount of sale deed plus 10% extra for the purpose of filing preemption cases and deposit was made in the treasury in favour of the District Collector under head 0029 LR. Admittedly the requisite amount of money was not deposited in favour of the respondent D.C.L.R., Sasaram, who was the Collector under the Land Ceiling Act in the present case. Learned counsel appearing on behalf of the petitioner has submitted that even after the requisite money was not deposited in favour of respondent D.C.L.R, Sasaram and instead it was deposited in favour of the District Collector, it should be treated as sufficient compliance of Rule 19 and Form L.C. 13 of the Rules. According to him, learned Revisional Authority has committed an illegality by dismissing the preemption claim of the petitioner on the ground that requisite money was not deposited in favour of Collector under the Land Ceiling Act. He has heavily placed reliance on a Division Bench judgment of this Court in the case of Ram Paras Choudhary V. State of Bihar (Supra), wherein it was observed that Rule 19 of the Rules and form L.C. 13 are directory instructions and if there is sufficient compliance thereof