IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5916 of 2004 MANORMA DEVI, WIFE OF SRI SHEO DANI SINGH, RESIDENT OF VILLAGE TOYGARH, P.S. BARBIGHA, DISTRICT SHEIKHPURA (PURCHASER) ------ PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE COLLECTOR, SHEIKHPURA 2. THE MEMBER, BOARD OF REVENUE, BIHAR, PATNA 3. THE ADDITIONAL COLLECTOR, SHEIKHPURA 4. THE DEPUTY COLLECTOR, LAND REFORMS, SHEIKHPURA 5. RAJO SINGH 6. SURESH SINGH SONS OF LATE MUNDRIKA SINGH 7. NARESH SINGH, SON OF KAILASH SINGH, RESIDENT OF VILLAGE TOYGARH, P.S. BARBIGHA, DISTRICT SHEIKHPURA (VENDOR) ------ RESPONDENTS ----------- 3 13.9.2010 Petitioner is a purchaser and has challenged the order of the Additional Member, Board of Revenue confirming the order of the appellate authority Additional Collector. By the impugned order the pre- emption application filed on behalf of father of respondent nos. 5 and 6 was allowed. The facts are that the sale deed was executed by the respondent no. 7 in favour of the petitioner on 30.12.1996 which was registered on 15.2.1997. The pre-emption application was filed on 13.6.1997 beyond the statutory period of time. An explanation has been given with respect to the delay by the pre-emptor 2 respondent nos. 5 and 6 wherein it has been stated, that there was a strike of non gazetted employees on 18.2.1997 and as such the respondents could not get copy of the sale deed to make an application Form LC 13 before the D.C.L.R. It is submitted that they applied for the Chirkut of the sale deed on 12.3.1997, the strike ended on 20.5.1997 and thereafter they got the copy of sale deed on 24.5.1997. A registered notice was issued by the respondents on 28.5.1997 and the consideration amount was deposited in the treasury on 10.6.1997. It is thus submitted on behalf of the respondents that there is sufficient reason to condone the delay in filing of the pre- emption application. Apart from the aforesaid facts, it is submitted that the respondent Mundrika Singh is a co-sharer and boundary raiyat of the land in question. The case of the petitioner on the other hand is that the pre-emption application is hopelessly barred by limitation and there is no provision under the Ceiling Act which envisages that the Collector or the Additional Member, Board of 3 Revenue can condone the delay in filing of the said application. It has been specifically stated that there was a partition between Naresh Singh and Mundrika Singh in the year 1982 in which each of the coparceners were allocated 20 decimals of land. It has further been submitted on behalf of the petitioner that there was a partition between Mundrika Singh and Rajo Singh and as such the name of Rajo Singh appears in the boundary of the sale deed executed by Naresh Singh. The D.C.L.R. by order dated 2.8.1997 has dismissed the pre-emption application on the ground that during the period when there was a strike of non-gazetted employees, the offices were working and several pre-emption applications were filed. It has been observed by the D.C.L.R. that the petitioner could have filed an application and moved the Court for extension of time, by pleading that the strike of non-gazetted employees had prevented him in filing the application within time. The lax attitude of the pre- emptor indicates that he was not vigilant and did not take steps within time to file 4 the pre-emption application. The D.C.L.R. however, has held that the pre-emptor i.e. the father of respondent nos. 5 and 6 is a boundary raiyat and also a co-sharer, although there is no discussion in the order which would lead this Court to conclude that the D.C.L.R. had applied his mind while concluding that the pre-emptor was a boundary raiyat, as well as a co-sharer. Being aggrieved with the order of the D.C.L.R., Mundrika Singh filed an appeal before the Additional Collector. The Additional Collector without applying his mind by a cryptic order has held that the pre-emptor Mundrika Singh is a boundary raiyat and co-sharer and has also reversed the findings of the D.C.L.R. by condoning the delay in filing the pre-emption application. The Additional Member, Board of Revenue has affirmed the order of the D.C.L.R. on the basis of a judgment in the case of Krishna Kumar Choudhary Vs. Alliance Agro Industries (P) Ltd. & Ors. reported in 1991 (1) PLJR (SC) 3. One of the important aspects of this case is that Mundrika Singh died during the 5 pendency of the appeal. No steps were taken to substitute the heirs of Mundrika Singh and thus the Court finds that the order passed by the Additional Collector was in favour of a dead person which is not permissible. According to this Court the appeal would have abated. The fact that Mundrika Singh died on 29.1.1988 during the pendency of the appeal is not disputed by any of the parties. The most that the Additional Member, Board of Revenue could have done, was to remand the matter back to the Additional Collector for re- consideration of the matter. In any event, since the Additional Member, Board of Revenue has decided all the issues, this Court will consider whether the order passed by the Member, Board of Revenue is in accordance with law. I shall first take up the question of limitation. Section 16(3)(i) of the Bihar Land Ceiling Act reads as follows: “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 the 6 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.” Section 16(3) envisages that the “period within which the application has to be filed is three months from the date of registration of the document.” In this case it is obvious that it was filed beyond three months. The explanation given on behalf of the pre-emptor is that the pre-emption application could not have been filed as the pre-emptor was not in a position to annex a copy of the treasury Chalan and the sale deed which is essential, according to Form LC 13 issued under Rule 19 of the Bihar Land Ceiling Rules. In this case, the dates are in the first part of the order indicate that although the sale deed was supplied to the petitioner on 24.5.1997, he was not able to file the application till 13.6.1997. Nor did the petitioner take steps to file an application for extension of time before the office or to file an application without the Chirkut and the sale deed giving an 7 explanation for the delay for not depositing the 10% consideration amount under rule 19 of the Bihar Land Ceiling Act. The right to sell and purchase is a superior right and, therefore, the legislature has laid down certain conditions which have to be followed in order to take advantage of the provisions of Section 16(3) of the Bihar Land Ceiling Act. Referring to the order of the Supreme Court in the case of Krishna Kumar Choudhary Vs. Alliance Agro Industries (P) Ltd. & Ors., this Court finds that the foundational fats have not been stated in the order and thus, this Court has no way of knowing as to why the Apex Court had referred the matter back to the Deputy Collector Land Reforms to consider the questions of delay. It appears from the tenor of the order that the limitation related to filing the appeal/revision. Undoubtedly the Apex Court or for that matter, the High Court can condone the delay in particular facts of the case. For this purpose, I would refer to the case of Bhagwan Das & Ors. Vs. State of U.P. & Ors. 8 reported in 2010 (2) PLJR (SC) 120 wherein the Supreme Court has held that Section 5 of the Limitation Act cannot be invoked for extending the period of limitation as the Collector is not a Court, when it discharges its function as statutory authority. However, in this case the Supreme Court condoned the limitation in view of the facts of the case and remanded the matter to the Collector and directed that the Collector should refer the matter under Section 18(1) of the Land Acquisition Act to the Civil Court for deciding the disputes that had arisen in this case. In the present case as already discussed, this Court finds that although there is an explanation for delay, but the subsequent actions of the pre-emptor indicates that he did not file the application under Section 16(3) till 10.6.1997 although the strike had ended on 20.5.1997. There is no explanation for the delay in filing the application after one month, from 20.5.1997. While discussing the second aspect as to whether the respondent pre-emptor was 9 a boundary raiyat and co-sharer of the vended lands, this Court relies on the sale deed, which is a registered document, from it appears that Rajo Singh, son of Mundrika Singh has been shown to be a boundary raiyat to the lands in question. It has been argued on behalf of the pre-emptor that the document i.e. the sale deed is the purchaser’s document and is not binding on the pre-emptor however, I find oral and documentary evidence has not been produced either before the Board of Revenue or the Additional Collector to indicate that the lands stands in the name of Mundrika Singh, therefore, this Court has to rely on the sale deed which indicates that Rajo Singh is a boundary raiyat of the land in question. This aspect also supports the petitioner’s claim that there was a partition between father and son and, therefore, Rajo Singh was shown to be a boundary raiyat. The claim of being co-sharer has also not been established in course of the discussion of the order of the Additional Member, Board of Revenue. This Court cannot rely on the order of the Additional Collector for the 10 reasons indicated in the earlier part of the order. For the reason aforesaid, I quash the order dated 24.3.2004, passed by the Additional Member, Board of Revenue. This writ application is thus, allowed. Sanjay ( Sheema Ali Khan, J.)