IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.2604 OF 2006 1. NARSINGH PRASAD YADAV @ NARSINGH, SON OF LATE BIRANCHI YADAV 2. UPENDRA NARAYAN YADAV @ UPENDRA YADAV, SON OF LATE BIRANCHI YADAV BOTH RESIDENT OF VILLAGE CHAPAR, POLICE STATION GOPALPUR, DISTRICT BHAGALPUR ……………………………………………………………………………….PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. THE ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR, PATNA 3. THE COLLECTOR, KATIHAR 4. THE LAND REFORMS DEPUTY COLLECTOR, KATIHAR 5. SIPAHI MANDAL, SON OF LATE LUCHAI MANDAL, RESIDENT OF VILLAGE CHAI TOLA, POST OFFICE KATARIA, POLICE STATION KURSAILA, DISTRICT KATIHAR 6. DINESH PRASAD YADAV, SON OF LATE JAGDISH PRASAD YADAV 7. NIRANJAN YADAV, SON OF LATE RAGHUBANSH NARAYAN YADAV 8. BIRANJAN YADAV, SON OF LATE RAGHUBANSH NARAYAN YADAV 9. RAJESH YADAV, SON OF LATE RAGHUBANSH NARAYAN YADAV 10.MOSTT. SAVITRI DEVI, WIDOW OF LATE RAGHUBANSH NARAYAN YADAV 6 TO 10 ARE RESIDENT OF VILLAGE CHAPAR, POST OFFICE CHAPAR, POLICE STATION GOPALPUR, DISTRICT BHAGALPUR …………………………………………………………………………..RESPONDENTS ********* FOR THE PETITIONERS :- MR. HEMENDRA PRASAD SINGH, ADVOCATE MR. MRITYUNJAYA KR. GAUTAM, ADVOCATE FOR RESP. NO. 5 :- MR. P. K. JAIPURIYAR, ADVOCATE MR. A. JAIPURIYAR, ADVOCATE FOR THE S T A T E :- MR. R. C. THAKUR, S.C. (CEILING) IV MR. K. K. SINGH, JC TO SC (C) IV ************* 8 13 .01.2011 The petitioners are the pre-emptors who have challenged the order of the Additional Member, Board of Revenue dated 30.09.2005 passed in Case No. 94 of 2005. By the impugned order, the Additional Member, Board of Revenue has set aside the order of the Land Reforms Deputy Collector dated 05.08.2002 and the 2 order of the Collector dated 22.05.2005, which was in favour of the petitioners. The respondent no. 5 purchased lands appertaining to Khata No. 137, Plot No. 723, measuring 1 (one) acre by a registered sale deed dated 11.02.2002. The petitioners deposited the consideration amount along with statutory 10 per cent on 05.06.2002 and thereafter filed an application under Section 16 (3) of the Ceiling Act on 06.06.2002, claiming that he is the boundary raiyat and a co-sharer and as such he is entitled to get the lands transferred in his favour. The case of the purchaser, on the other hand, is that the purchaser is an adjoining raiyat having purchased Plot No. 724 by a registered sale deed on 25.06.2001, measuring 13 decimals and 2 acres of lands appertaining to Plot No. 650, and as such the pre- emption application was not maintainable. It is also specifically pleaded that there was partition between the sons of Jalim Yadav and each of the sons had got the lands mutated in their names, and as such it cannot be said that the petitioners who are from the branch of one of the sons, namely, Biranchi Yadav are co-sharers of the father/grandfather of the respondents, namely, Darogi Yadav. The respondents have also objected to the fact that the pre-emption application has been filed beyond 3 the period of three months prescribed under sub-section 3 (i) of Section 16 of the Ceiling Act. There is a specific pleading on behalf of the purchaser that after the purchase of the lands, the purchaser has constructed his house on a portion of the lands in question on which one flour mill and godown has been established and is running. The remaining land has been utilized for residential purposes and for the purpose of keeping their cattle, and as such the submission is that the purchaser has already made construction over Plot No. 723 and is utilizing it for running his business as well as he has got his residential house over the disputed land since the date of purchase i.e. for the past eight years. The Land Reforms Deputy Collector condoned the delay in filing the pre-emption application and thereafter allowed the pre-emption application on the ground that the petitioners are shown in the boundary of Plot No. 723 in the sale deed and as such, are entitled to file the pre-emption application. The Collector, Katihar similarly rejected the appeal of the respondents and upheld the order of the Land Reforms Deputy Collector, Katihar. The questions for consideration before this Court are as follows:- (i) Whether the Challan showing the deposit of 4 consideration amount was within the prescribed period? (ii) Whether the pre-emptors are co-sharers of the vendors? (iii) Whether the purchaser holds lands adjoining to the portion of the disputed land? (iv) Whether the nature of the disputed land is agricultural or homestead land as defined under Section 2 of the Ceiling Act? The first question is whether the Court below could have condoned the delay in filing the pre-emption application and whether the petitioners have adequately explained the delay in filing the pre-emption application. In this context, it would be proper to point out that there was an agreement between the vendors and the purchasers to transfer the lands on 10.03.1991. At that time, the respondent no. 5/purchaser had deposited Rs. 98,000/- as advance which was very much within the knowledge of the petitioners. The application has been filed for condoning the delay under Section 5 of the Limitation Act without giving adequate reasons for the delay. The fact that there was an agreement to sell the lands, has not been disputed or denied by the petitioners. The reason for not filing the pre-emption application within time is lack of knowledge of the sale deed is not believable, in view of the fact that the vendors after 5 coming into possession had begun construction on the lands in question. Counsel for the petitioners has referred to the judgments delivered in the case of Kula Nand Jha vs. The State of Bihar & Others [1998 (2) PLJR 693]. This case relates to an application filed under Sections 5 and 29 of the Limitation Act, read with Section 32 of the Ceiling Act. The question which was decided by the Court is whether the Additional Member, Board of Revenue had the power to condone the delay in a land acquisition proceeding. The Additional Member, Board of Revenue relied on a case of this Court in the case of Bhuneshwar Bhagat vs. The State of Bihar & Others [1988 PLJR 721], wherein this Court had held that although the authorities under the Ceiling Act were not the Court „within the meaning of the Limitation Act‟ and therefore, cannot exercise the powers under Sections 5 or 29 of the Limitation Act. Contrary to it, this Court in an unreported case being CWJC No. 4848 of 1987 [Ramjee Singh & Others vs. the State of Bihar & Others], disposed of on 10.11.1987, has held that Member, Board of Revenue had erred in condoning the delay in filing of the revision application. This Court relied on the judgment of the Supreme Court in the case of Krishna Kumar Choudhary vs. Alliance Agro Industries (P) Ltd. & Ors. 6 {1991 (1) PLJR (SC) 3, wherein the following orders were passed. “We are of the opinion that Section 29 of the Limitation Act applies to the facts and circumstances of this case and that it is now for the Deputy Collector, Land Reforms and the Collector under the Act to consider whether the delay in filing the proceeding should be condoned. Thereafter, the Deputy Collector Land Reforms and the Collector under the Act will dispose of the case on the remaining points in accordance with law.” Referring to the aforesaid judgment, this Court held that the authorities had the power to condone the delay. On the other hand, Counsel for the respondents referred to the judgment in the case of Gopal Sardar vs. karuna Sardar [2004 SAR (Civil) 382 SC]. The matter related to an application filed for pre-emption under the West Bengal Land Reforms Act. The application filed was time barred under Section 8 of the aforesaid Act. The Supreme Court has held that Section 8 of the West Bengal Land Reforms Act provides a period of limitation for initiating a proceeding for enforcement of a right of pre-emption. There is no provision made in the Act for application of Section 5 of the Limitation Act and as such it would amount to an express exclusion of satisfying the 7 requirement under Section 5, 7, 29 (2) of the Limitation Act. It was next pointed out that there is a contradiction between the decision as rendered in the case of Kula Nand Jha and the decision in the case of Gopal Sardar. I find, that in fact, there is no contradiction, for the reason that where an application is filed for condoning the delay as provided under Section 30 or 32 of the Ceiling Act, it is in a continuing proceeding which had already been initiated and as such the authorities can consider the question of delay in appropriate cases; whereas under Section 16 (3) of the Ceiling Act, a specific period of three months has been prescribed for initiation of a proceeding under Section 16 (3) of the Act which goes to the very root of the rights which govern parties with respect to a weaker statutory right of the pre-emptor, as compared to the right of a citizen to purchase a piece of land, as such, the authorities under the Ceiling Act could have condoned the delay only if there was an adequate reason. In the facts of the present case, adequate reasons have not been established by the pre-emptor. The next question raised on behalf of the petitioners is that the Additional Member, Board of Revenue has wrongly held that the petitioners are not co- 8 sharers of the vendors. In the present case, this Court finds that the purchasers had produced rent receipts showing that the lands were separately recorded in the names of the different members of the family of Jalim Yadav, which indicates that in fact they are no longer members of the joint family and are dealing with the lands independently. The petitioners have vehemently challenged the findings of the Additional Member, Board of Revenue that the purchasers are adjoining raiyats. It is not disputed that respondent no. 5-purchaser and the petitioners had purchased a portion of Plot No. 724. Respondents had purchased 13 decimals of a portion adjacent not to Plot No. 723. Thus, the case of the petitioners that in fact 13 decimals of lands is not in the boundary of the disputed Plot No. 723. The Additional Member, Board of Revenue relied on the findings of the Amin and after relying on the sketch map, which indicates that some portion of 13 decimals of land falls in the boundary of Plot No. 723 held in favour of the purchaser. This is a finding of fact which has not been controverted by the petitioners except to say that the purchasers are not shown in the boundary in the sale deed; whereas the petitioners are in the boundary of the sale deed. There can be no doubt about the fact that the petitioners are boundary raiyats, but this right would be 9 defeated by the fact that their application under Section 16 (3) of the Ceiling Act was filed after a delay and the report of the Amin, which is the actual spot verification of the land in dispute. Regarding the findings of the Additional Member, Board of Revenue in favour of the purchaser that the land purchased is not agricultural in nature and is being utilized by the respondent no. 5 for the purpose of running a flour mill (carrying out business) and for residential purposes has, in fact not been raised and challenged in this writ application by the petitioners. Similarly, the petitioners have not challenged the fact that the respondent no. 5 had built the house and is running his flour mill since the time of purchase. This Court also holds that it would not be equitable to dispossess the purchaser after such a long period of time. I, therefore, hold that there is no scope of interference in the present writ application and accordingly upheld the order of the Additional Member, Board of Revenue dated 30.09.2005. This application is accordingly dismissed. AFR/Anand ( Sheema Ali Khan, J. )