IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1998 of 1991 UPENDRA TIWARY, son of Late Vidya Nr.Tiwary @ Bidya Narain Tripathy, resident of Village Kuari Kharg, P.S. Amnour, District Saran ----Petitioner Versus 1.Addl.Member, Board of Revenue, Bihar, Patna. 2.The Additional Collector, Saran. 3.The L.R.D.C., Chapra, Dist. Saran. 4.Narbadeshwer Tiwary son of Mahesh Tiwari 5.Kameshwar Tiwary 6.Hari Narain Tiwary Both sons of Nag Narain Tiwari 7.Nanhku Pandey son of Sheo Nandan Pandey All resident of Village Kuari Kharg, P.S. Amnour, District Saran. ----------- ------Respondents For the Petitioner : Mr Ram Suresh Rai, Senior Advocate For the S t a t e : Mr Ajay Kumar Sharma, J.C. to AAG III For Respondent no.4 : Mr. Jitendra Prasad Singh Advocate For Respondent no.7: Mr Sanjay Kumar Jha, Advocate For the S t a t e : Mr Ajay Kumar Sharma, J.C. to AAG III ******** 12. 20.1.2009 Heard the learned counsel for the petitioner, respondent no.4 and respondent no.7 as well as the State. The writ application is for quashing the order dated 13.2.1991 (Annexure 9) passed by the Additional Member, Board of Revenue, Bihar (respondent no.1) in Board Revision Case No.17 of 1989 affirming the order dated 19.12.1988 (Annexure 6) passed by the Additional Collector, Saran (respondent no.2), who set aside the order 2 dated 23.12.1987 (Annexure 5) passed by the L.R.D.C., Saran at Chapra allowing the application claiming pre-emption in Land Ceiling Case No.50/77-78 (Pre-emption). The petitioner claiming the right of pre-emption filed an application under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act before respondent no.3. Respondent no.4 filed objection claiming himself to be the Benamidar of respondent no.7, who had purchased the land from respondents no.5 and 6. The LRDC upon hearing the parties allowed the application by his order dated 23.12.1987 (Annexure 5). Respondent no.4 on being aggrieved filed an appeal, vide L.C. Appeal No.3 of 1988 before respondent no.2. The same was allowed by order dated 19.12.1988, vide Annexure 6, and the order dated 23.12.1987 (Annexure 5) allowing the pre-emption was set aside. The petitioner filed revision before respondent no.1, vide Revision Case No.17/1989, which has been dismissed by the impugned order dated 13.2.1991 (Annexure 9), and as such he filed the present writ application for quashing the order, contained in Annexures 5 and 6.. It is primarily submitted on behalf of the petitioner that the claim of his pre-emption was disallowed by the lower appellate court and affirmed by the revisional court, vide Annexures 6 and 9, on the ground that respondent no.4 claims to have purchased the land in the capacity of Benamidar of respondent no.7. Respondent no.7, however, on being noticed, appeared before the LRDC 3 (respondent no.3) and took the stand in a nutshell that he did not purchase the land in question in Benami name of respondent no.4. Respondent no.3 after considering the materials on record allowed the application of the petitioner for pre-emption. However, on appeal respondent no.2 taking into consideration the affidavit filed by respondent no.7, which supported the case of respondent no.4, did not lend credence to the affidavit of respondent no.7 that he did not purchase the land nor paid the consideration money to the concerned vendor. Respondent no.2 as such set aside the order passed by the LRDC by his order dated 19.12.1988, as contained in Annexure 6. The petitioner on filing the aforesaid revision before respondent no.1 reiterated his stand that respondent no.4 did not acquire any right and title in the face of clear assertion on behalf of respondent no.7, who was opposite party no.4 in revision before the Board of Revenue, that he did not purchase the land nor he paid the consideration money to the concerned vendor and he has absolutely no concern with the land in question. The learned counsel appearing on behalf of the petitioner submits that respondent no.1 rejected the revision application without due application of mind nor even taking or considering the assertion made by respondent no.7 that no such land in question was purchased by him in the name of respondent no.4, who claims himself to be the Benamidar of respondent no.7. It is further submitted that the statement made by respondent no.7 in his counter affidavit reiterating specifically to the effect that the land in question which is alleged to have been purchased by him in the Benami name of respondent no.4 is 4 absolutely incorrect and this was his stand even in the appeal filed before respondent no.2 and the revision before respondent no.1. In the above circumstances, the order dated 13.2.1991, as contained in Annexure 9, deserves to be quashed. The learned counsel appearing on behalf of respondent no.4, on the other hand, submits that respondent no.7 had filed affidavit, which supported his claim. Learned counsel further submits that during the pendency of Revision Case No.17 of 1989, the land purchased in the name of respondent no.4 was sold out to one Sheo Kumar Chaturvedi on 19.11.1990. However, the learned counsel is not in a position to say that under what authority he sold the land to said Sheo Kumar Chaturvedi. The learned counsel appearing on behalf of respondent no.7 in course of submission reiterates the stand in the light of the statements made in his counter affidavit that the land claimed by respondent no.4 as his Benamidar is absolutely incorrect and denied. The learned counsel appearing for the State submits that the parties have confused the whole proceedings by not properly bringing the correct facts and as such the authority had passed the order on the basis of the materials available on the record. Considering the submissions of the respective parties and their pleadings, it appears that the disputes between the petitioner and respondent no.4 primarily rest on the sale deed registered on 8.9.1977 through which it is said that respondent no.7 had purchased the land in Benami name of respondent no.4. The above fact is 5 seriously disputed by the petitioner as well as respondent no.7 himself by filing a counter affidavit in this court as well as the similar stands were taken before respondents no.1 and 2 in the appeal as well as the revision. Therefore, this serious disputed question of fact ought to have been thoroughly considered by the trial court in L.C. Appeal No.3 of 1988, whereby the appellate court has allowed the appeal and set aside the order dated 23.12.1987 passed by the LRDC allowing the pre-emption application. The said order was affirmed by respondent no.1 in Revision Case No.17 of 1989, vide order dated 13.2.1991 (Annexure. 9). This being the position, the order passed by respondent no.1, as contained in Annexure 9, and the order passed by respondent no.2, as contained in Annexure 6, both, cannot be sustained in law. Accordingly, the orders, as contained in Annexures 9 and 6, are quashed and the matter is remitted back to the Additional Collector, Saran (respondent no.2) for passing a fresh order in accordance with law, expeditiously, preferably within a period of six months on receipt/production of the certified copy of this order, after considering the case of each party and the documents on the record in support of their case. The writ application is accordingly disposed of with the above observations/directions. PNM (Shailesh Kumar Sinha, J.)