IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.1257 of 1994 =========================================================== Manager Singh, son of Raghuni Singh, resident of village Jigna Jagarnath Tola Takalpura, P.S.-Meerganj, District Gopalganj. .... .... Petitioner Versus 1. The State of Bihar. 2. The Additional Member, Board of Revenue. 3. The Additional Collector, Gopalganj. 4. Deputy Collector, Land Reforms, Hathwah, Gopalganj. 5. Sub-Divisional Magistrate, Hathwah, Gopalganj. 6. Baliram Rai, son of Late Rambilash Rai, resident of village Jigna Jagarnath Tola Takalpura, P.S.-Meerganj, District Gopalganj. 7. Raghunath Rai, son of Late Rambilash Rai, resident of village Jigna Jagarnath Tola Takalpura, P.S.-Meerganj, District Gopalganj. .... .... Respondents =========================================================== Appearance : For the Petitioner : Mr. Hemendra Prasad Singh, Advocate with Mr. Arbind Kumar, Advocate For the Respondents : Mrs. Kumari Amrita, G.P.-10 with Mr. Rajesh Kumar, A.C. to G.P.-10 Mr. Rajeev Kumar, A.C. to S.C.-11 =========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE ORAL JUDGMENT Date : 29th April 2011 (Per: HONOURABLE THE CHIEF JUSTICE) This petition filed under Articles 226 and 227 of the Constitution arises from the judgment and order dated 18th January 1994 passed by the Board of Revenue, Bihar in Case No.105 of 1993. The petitioner before this Court (hereinafter referred to as „the Transferee‟) is the purchaser of the land admeasuring 1 Bigha from the land Khata No.448, Khesra No.1636 of village Jigna Jagarnath, Tola Takalpura, P.S. Meerganj, District-Gopalganj from the respondent no.7 Raghunath Rai (hereinafter referred to as “the Transferor‟) under a registered sale deed dated 20th August 1991. Patna High Court CWJC No.1257 of 1994 dt. 29-04-2011 2 The lands of Khata No.448 belonged to one Rambilash Rai, the father of the respondent nos. 6 and 7. On demise of the said Rambilash Rai the lands of Khata No.448 devolved upon his four sons including the respondent nos. 6 and 7. One of the brothers, the respondent no.7-the Transferor, sold 1 Bigha of land in his occupation to the writ petitioner-the Transferee by registered sale deed dated 20th August 1991 for a sum of Rs.20,000/-. Feeling aggrieved, the respondent no.6, Baliram Rai (hereinafter referred to as „the Preemptor‟), one of the four brothers, filed Case No.55/1991-92 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 Act‟) before the Sub Divisional Officer asserting his right of preemption. According to the preemptor, the land Khata No.448 was the joint property of the four brothers. The preemptor had 1/4th share in the lands of Khata No.448. Without partitioning the lands by metes and bounds, as per the oral arrangement made between the four brothers, each brother was cultivating 1 Bigha of land. He being a co-sharer had a right to re-conveyance from the Transferee. The said application was made on 20th November 1991. The amount of purchase money and a sum equal to 10% of the purchase money was deposited in the Treasury on 2nd December 1991. The said application was contested by the Transferee. According to the Transferee the application was not maintainable as it was not filed within three months as envisaged by Section 16(3) of the Act and was not made in accordance with Rule 19(1) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Patna High Court CWJC No.1257 of 1994 dt. 29-04-2011 3 Rules, 1963 (hereinafter referred to as “the Rules”). The Sub Divisional Officer, Gopalganj by his order dated 28th September 1992 upheld the claim of the preemptor. He held that the preemptor was the co-sharer of the Transferor. The application was required to be made on 19th November 1991. However, on that date the offices were closed on account of a strike. The application was filed on the next working day i.e. on 20th November 1991. The amount of purchase price and 10% thereof was deposited by the preemptor on 2nd December 1991. Feeling aggrieved by the order of the Sub Divisional Officer the Transferee filed Appeal No. 2/1992-93 before the Additional Collector, Gopalganj. The Additional Collector, Gopalganj held that the application was not made within three months as required under Section 16(3) of the Act. The Additional Collector also recorded that the purchase price and sum equal to 10% of the purchase price was paid on 2nd December 1991. The application was not made in consonance with Rule 19(1) of the Rules, therefore, it was not maintainable. Accordingly, by order dated 22nd January 1993 the appeal was allowed. Under the impugned judgment and order dated 18th January 1994, the order made on appeal has been set aside by the Board of Revenue; the order of Sub Divisional Officer is restored. Therefore, the present writ petition. Learned advocate Mr. Hemendra Prasad Singh has appeared for the writ petitioner, the Transferee. He has assailed the impugned judgment and order of the Board of Revenue. He has submitted that the preemptor did not prove that he was the co-sharer of the land in question. He has relied Patna High Court CWJC No.1257 of 1994 dt. 29-04-2011 4 upon the sale deed to submit that the preemptor was not a raiyat of the contiguous or adjoining land either. The condition precedent under Section 16(3) of the Act was not satisfied. The application made under Section 16(3) of the Act was, therefore, not maintainable. He has next submitted that the provisions contained under Rule 19 of the Rules are mandatory in nature. The preemptor having failed to file the application within three months of the date of registration of the sale deed; having not deposited the purchase price and sum equal to 10% thereof on the date of filing of the application, the application was not maintainable. It was rightly rejected by the Additional Collector by his order dated 22nd January 1993 made on Appeal No.2/1992-93. In support of his submissions, he has relied upon the judgment of the Hon‟ble Supreme Court in the matter of Krishna Kumar Choudhary vs. Alliance Agro. Industries [1991 (1) PLJR (S.C.) 3]; of this Court in the matter of Mohammad Shafique Ahmad v. State of Bihar [1995 (1) PLJR 851] and in the matter of Krishna Kumari Choudhary Vs. Alliance Agro Ind. (P) Ltd. [1986 PLJR 832]. It may be noted that before the Sub Divisional Officer the Transferee did not dispute nor did the respondent no.7-the Transferor dispute the contention that the preemptor was a co-sharer in the land; that the land belonged to his father and that he had a 1/4th undivided share in the said land. All the authorities below have recorded a concurrent finding that the preemptor was a co-sharer in the disputed land. Section 16(3) of the Act empowers a co-sharer or a raiyat of adjoining land of the Transferor to apply to the Collector within three months of the date of the registration of the document to transfer the land to him on the terms and Patna High Court CWJC No.1257 of 1994 dt. 29-04-2011 5 conditions contained in the deed. The proviso thereof provides that the Collector shall not entertain such application unless the purchase money together with the sum equal to 10% thereof is deposited in the prescribed manner within the said period. Meaning thereby, not only the application is required to be made within three months, the purchase money and the 10% of the purchase money is also required to be deposited within three months. Rule 19(1) of the Rules provides for procedure for filing the application under Section 16(3) of the Act. Sub-rule (2) thereof provides that the challan showing deposit of the amount under sub-rule (1) together with the copy of the registered deed should be filed along with the application in which a statement to that effect shall also be made. Indisputably, in the present case the application was not made within three months nor the purchase price was deposited within the said period. The question, therefore, arises is whether the aforesaid requirements under Rule 19 of the Rules are mandatory so that a little deviation would be fatal to the claim for the re-conveyance made by a co-sharer or a raiyat of the adjoining land. The Hon‟ble Supreme Court has, as early as in the year 1969, in the matter of Hiralal Agrawal v. Rampadarath Singh [AIR 1969 SC 244] held the aforesaid Rule 19 directory insofar as the requirement of furnishing the sale deed is concerned. In paragraph 15 of the judgment the Hon‟ble Court held, “The object of R.19 ….. is clearly to enable the Collector before he exercises his power thereunder to ascertain the purchase price, the terms and conditions of the sale, the readiness of the applicant to have the land in question reconveyed to him Patna High Court CWJC No.1257 of 1994 dt. 29-04-2011 6 on the same terms and conditions as in the sale deed and the fact of the applicant having deposited the relevant amount in the treasury. … … … To hold that if the formality prescribed by Rule 19 is not satisfied the application would be bad would be to nullify the object of the statute. That surely cannot be the intention of the draftsmen who framed Rule 19 and Form L.C. 13.” In respect of deposit of purchase money and 10% thereof the Hon‟ble Supreme Court in paragraph 17 of the judgment held, “ In our view, whereas the deposit in the relevant treasury, the applicant being either a co-sharer or a raiyat of the adjoining land, his readiness and willingness to have the land in question re-conveyed to him on the same terms and conditions as in the sale deed and the transfer of the land to the Transferee are conditions precedent to his acquiring the right of reconveyance and to the Collector’s jurisdiction to try such an application, the prescription as to annexing a copy of the registered deed is only directory and is laid down to furnish necessary information to the Collector to enable him to proceed with it. Annexing a certified copy of the sale deed where a copy of the registered deed is not yet available on account of the process of registration not having been completed would, in our view, be sufficient compliance of the directory prescription so long as it furnishes information necessary for the Collector to proceed with the application. The fact that a copy of the registered deed was not furnished along with the application was, therefore, not fatal to the application nor did such omission deprive the Collector of his jurisdiction to entertain it nor did it vitiate the Patna High Court CWJC No.1257 of 1994 dt. 29-04-2011 7 proceedings before him or the order thereon made by him.” The same view has been expressed by this Court in the matter of Krishna Kumari Choudhary (supra). In respect of the limitation prescribed under section 16(3)(i) of the Act, the Court held, “The provision is mandatory and emphatic by depriving the Collector of jurisdiction to entertain the application if the deposit is not made within the prescribed period. It completely negatives the extensibility.” The Court further held, “The language of the relevant provision in section 16(3)(i) is unambiguous and I do not think it is permissible to import the words which are not there. It has to be remembered that the right of pre-emption is a weak right and the one which the petitioner is attempting to enforce has been created by the Statute. If the Legislature while conferring such a right has subjected it with certain limitations, the beneficiary must accept it in that form. The provision has to be distinguished from one curtailing an existing right.” Thus, as held by the Hon‟ble Supreme Court and this Court, the deposit of the purchase money and 10% thereof in the treasury is a condition precedent unless the deposit is made within time specified under Section 16(3) of the Act. The Collector will have no jurisdiction to consider or try the claim for reconveyance made under Section 16(3) of the Act. In the present case, as recorded hereinabove, the last date of filing the application was 19th November 1991. On that date offices being closed the application was made on the next working day i.e. on 20th November 1991. In my view, therefore, as envisaged by Section 12 of the Bihar and Orissa Patna High Court CWJC No.1257 of 1994 dt. 29-04-2011 8 General Clauses Act, 1917, the application was made within the specified period of three months. But that was not enough. The preemptor was also under an obligation to deposit the purchase money and 10% thereof within the time i.e. by 20th November 1991. In the present case, admittedly, the preemptor did not deposit the purchase price and 10% thereof until 2nd December 1991. He, thus, failed to deposit the amount in treasury within the specified time. The Sub Divisional Officer, therefore, did not acquire the jurisdiction to consider or try the application for reconveyance made by the preemptor under Section 16(3) of the Act. The Sub Divisional Officer erred in exercising the jurisdiction not acquired by him and in allowing the application for reconveyance made by the preemptor. The Additional Collector, Gopalganj had rightly allowed the appeal preferred before him. However, the Board of Revenue committed the same mistake as Sub Divisional Officer. The Board of Revenue failed to appreciate that the filing of the application for reconveyance and deposit of the purchase money and 10% thereof in the treasury within three months from the date of registered sale deed was a sine qua non for the Collector to comply the jurisdiction. In the present case, one of the said conditions, namely, deposit of the purchase money and 10% thereof in the treasury within three months from the date of registered sale deed was, admittedly, not complied with. The application for reconveyance made by the preemptor was, therefore, liable to be rejected. For the aforesaid reasons, this petition is allowed. The impugned order dated 18th January 1994 passed by the Board of Revenue, Bihar in Case No.105 of 1993 is set aside. The order dated 22nd January 1993 made by the Additional Patna High Court CWJC No.1257 of 1994 dt. 29-04-2011 9 Collector, Gopalganj in Appeal No.2/1992-93 is restored. The Application No.55/1991-92 made by the respondent no.6, Baliram Rai, for reconveyance under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area And Acquisition of Surplus Land) Act, 1961 is rejected. The parties will bear their own cost. Pawan/- NAFR (R.M. Doshit, CJ)