CIVIL WRIT JURISDICTION CASE No.3883 OF 1993 With CIVIL WRIT JURISDICTION CASE No.3884 OF 1993 With CIVIL WRIT JURISDICTION CASE No.3885 OF 1993 With CIVIL WRIT JURISDICTION CASE No.3886 OF 1993 With CIVIL WRIT JURISDICTION CASE No.3888 OF 1993 --------- In the matter of applications under Articles 226 and 227 of Constitution of India. ---------- 1. Bhudeo Choudhary 2. Brahmdeo Choudhary 3. Charitra Choudhary All sons of late Anandi Choudhary Residents of village- Chak Prayag Police Station- Parwatta, District Khagaria ---- Petitioners in all the five writ petitions VERSUS 1. The State of Bihar 2. The Additional Member, Board of Revenue, Bihar Patna 3. The Additional Collector, Khagaria 4. The L.R.D.C. Khagaria 5. Umesh Roy 6. Upendra Roy 7. Sadanand Roy 8. Ramanand Roy Sons of late Jamuna Roy, residents of village- Chak Prayag (Harinmar) police station- Parwata in the district of Khagaria 9. Ramdeo Choudhary son of late Anandi Choudhary, resident of village- Chak Prayag, P.S. Parwata, district- Khagaria . ----------- Respondents in all the five writ petitions ----------- For the Petitioners : Mr. Ram Suresh Roy, Sr. Advocate Mr. Ram Sevak Choudhary, Advocate For the State : Mr. O.P. Upadhyay, S.C. (2) Ceiling --------- 2 P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE C. M. PRASAD Shiva Kirti Singh,J. All the five writ petitions relate to same subject matter of preemption 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‟). They arise out of same facts and involve same questions of law. In fact if Ramdeo Choudhary, respondent No. 9 had sold the land in question in favour of the purchasers through single sale deed and not through five sale deeds dated 9-1-1987, there would have been only one preemption case and not five cases. The vendor Ramdeo Choudhary was one of the sons of Anandi Choudhary who had acquired the lands in question by a registered sale deed dated 20-6-1981. He claimed this property to be his self acquired and separate property and not a purchase on behalf of joint family consisting of his father and other brothers but his father Anandi Choudhary preferred preemption applications bearing Ceiling case Nos. 12/86-87 to 16/86-87 3 before the Land Reforms Deputy Collector (L.R.D.C), Khagaria claiming himself to be a co-sharer. 2. It is not necessary to go into merits of the issues involved because the case remains to be decided on merits. Since the preemptor, Anandi Choudhary died on 3-12-1990, a substitution petition was filed first by one of his sons, petitioner No.1 and thereafter by the other two petitioners for substitution of their names in place of their late father. Such step for substitution was taken after considerable delay of about 511 days. Objection was raised on behalf of purchasers on the ground that the case had abated and the substitution petitions were time barred and valuable rights had accrued to the purchasers in respect of the vended lands. The L.R.D.C. heard the parties and rejected the substitution petitions as time barred by his common order dated 25-6-1992 and held that all the preemption cases had stood abated. The writ petitioners preferred five Ceiling Appeals bearing Nos. 7/92-93 to 11/92-93 before the Additional Collector, Khagaria who allowed the appeals, set aside the order of abatement and allowed substitution. Against this common order of 4 Additional Collector dated 30-9-1992 the purchasers preferred Revision bearing case Nos. 224 to 228 of 1992 before the Board of Revenue, Bihar which were allowed by order of the learned Additional Member dated 22-3-1993. That common order is under challenge in these writ petitions. 3. By the impugned order the learned Additional Member, Board of Revenue, Bihar has noted the facts clearly and also the rival contentions on the main issue - whether Section 45 C of the Act read with Rule 55 of the Rules framed under the Act (hereinafter referred to as „the Rules‟) are applicable for the purpose of substitution in a case of preemption under Section 16 (3) of the Act. 4. On behalf of the purchasers who were the petitioners before the Board of Revenue it was contended, as finds mentioned in the impugned order, that preemption applications had been filed by Anandi Choudhary in his personal capacity and substitution was not possible for enforcing such personal privilege of the preemptor. It was also contented that substitution petition was required to be filed within 90 days as per Article 120 of the Limitation 5 Act, 1963 whereas substitution petitions were filed after delay of 511 days on 12-3-1992 and 28-4-1992 hence the case had abated after 90 days from the death of the preemptor. The purchasers had also contended that Section 45 C of the Act and Rule 55 of the Rules were not attracted in the case of preemption proceedings because they provide for substitution of the legal representatives of only a deceased “land holder”, a term defined in the Act and not in the case of death of a preemptor. The case of the purchasers was that substitution will be governed by Order XXII of the Code of Civil Procedure and Article 120 of the Limitation Act and, therefore, the order of the L.R.D.C. was justified. 5. On the other hand the contentions raised on behalf of the writ petitioners were that Section 45 C as well as Rule 55 would be applicable in the case of death of a preemptor also and as per Section 45C, the legal heirs were required to file substitution petition within 30 days of the death of the preemptor failing which the Collector or the appropriate authority was required to act suo motu and substitute the legal representatives of the deceased preemptor. It was contended on behalf of the preemptors 6 that Order XXII of the Code of Civil Procedure had not been made applicable to proceedings under the Act and, therefore, Articles 120 and 121 of the Limitation Act, 1963 are also not applicable and, therefore, there could be no abatement of the preemption cases on account of delay in substitution. It was also their case that even if the Limitation Act is found to be applicable, the period of limitation would be governed by Article 137 which prescribes the period as three years from the date on which the right to apply accrued. 6. The learned Additional Member, Board of Revenue, has held that Section 45C of the Act is applicable only in case of death of a land holder as defined in clause “ g” of Section 2 which means a family as defined in clause “ee” holding land as a raiyat or under raiyat or a mortgagee of land in possession. Only in the event of death of a “land holder” during the pendency of a Ceiling proceeding, the legal representatives are required to pray for substitution within 30 days of the death of land holder or the Collector has been empowered to act suo motu to bring the legal heirs on record and then proceed with the Ceiling case. With the 7 aforesaid views the learned Additional Member, Board of Revenue, held that Section 45 C and Rule 55 do not have any application in a preemption proceeding under Section 16 (3) of the Act which does not refer to any land holder but only to “transferor”, “co-sharer” or “Raiyat of adjoining land” and “transferee”. He, however, further held that Order XXII of the Code of Civil Procedure and Article 120 of the Limitation Act will be applicable for the purpose of substituting the legal heirs of a deceased preemptor. For this purpose he placed reliance on a judgement of the Supreme Court in the case of Balram and others v. The IIIrd Additional Distt. Judge and another, reported in AIR 1983 SC 1137. In the final analysis he held that since no substitution application was filed within 90 days, the Ceiling proceedings had abated and order of the L.R.D.C rejecting the substitution petitions was correct because there was no application for condonation of delay. 7. On behalf of the petitioners it was submitted that findings of the learned Additional Member, Board of Revenue, in respect of legal issues noticed earlier are incorrect. According to learned counsel for the petitioners, 8 since Order XXII of the Code of Civil Procedure is not mentioned either under Section 33 under which authorities under the Act have been vested with some of the powers of the Civil Court or under Section 30 or 32 which prescribe provisions for appeal and revision, hence Order XXII of the Code of Civil Procedure and Articles 120 and 121 of the Limitation Act, 1963 are not applicable to a proceeding under the Act. On the basis of difference in the provisions under the Ceiling Act of Uttar Pradesh which was subject matter of judgement of the Supreme Court in the case of Balram and others (AIR 1983 SC 1137) (supra) and in the Bihar Land Ceiling Act it was submitted that the said judgement cannot have application to any proceeding under the Act. 8. In the case of Balram (supra), need for substitution had arisen at the appellate stage. On the basis of provisions in Section 38(1) of the U.P. Imposition of Ceiling on Land Holdings Act, it was held that Order XXII of the Code of Civil Procedure as well as Article 120 of First Schedule of the Limitation Act were applicable and the petition for substitution should have been filed within 90 9 days from the date of death. Of course, in appropriate case the legal representatives could pray for setting aside of abatement and condonation of delay by showing that there was sufficient cause for the delay to be condoned. Section 38(1) of the UP Act was extracted and it runs as follows :- “38 (i) In hearing and deciding an appeal under this Act, the appellate Court shall have all the powers and the privileges of a Civil Court and follow the procedure for the hearing and disposal of appeals laid down in the Code of Civil Procedure, 1908.” So far as the Act applicable to Bihar is concerned, it has been rightly pointed out that Section 30 containing provisions for hearing of appeals in sub-seciton (2) provides only to the effect that an appeal under this Section shall be heard and disposed of in the prescribed manner. Rule 49 prescribed the manner of hearing of the appeal but before referring to that Rule it is deemed necessary to clarify that the submission on behalf of the petitioners is correct that Section 33 of the Act, while specifying what powers of civil court would be available to the authorities under the Act, does not include Order XXII of the Code of Civil Procedure either expressly or even by necessary implication. Rule 49 of the Rules runs as follows : “49. Procedure for disposal of appeal under the 10 Act [sub-section (2) of Section 30].- The procedure to be followed by the appellate authority in disposing of appeals under the Act, shall, so far as may be practicable, be the same as provided for civil appeals under Order XLI of the Code of Civil Procedure, 1908 (Act V of 1908)”. Even on the basis of this Rule it cannot be held that appellate authority has been given same power as the civil court in the manner of hearing of appeals under the Act. To the contrary, by making only the procedure under Order XLI of the Code of Civil Procedure applicable, the other provisions such as provisions under Order XXII or provisions relating to review etc. have been excluded. There are catena of judgments that there is no provision in the Act or in the Rules vesting an authority under the Act to review its orders on the lines of provisions of Section 114 and Order XLVII of the Code of Civil Procedure. Thus, even from provisions in Rule 49 of the Rules, it is clear that unlike Section 38(1) of the U. P. Act, in Bihar the authorities under the Act have not been vested with all the powers and the privileges of a civil court in the matter of hearing and disposal of appeals but only those under Order XLI of the Code of Civil Procedure. 9. On analyzing the relevant provisions of the 11 Act noticed above the aforesaid submission advanced on behalf of the petitioners is found to have merit and it must be held, as a consequence, that provisions contained in Order XXII of the Code of Civil Procedure and Articles 120 and 121 of the Limitation Act, 1963 are not applicable to a proceeding under the Act. 10. The next submission advanced on behalf of the petitioners is that learned D.C.L.R should have allowed the prayer for substitution in view of provisions under Section 45C of the Act and Rule 55 of the Rules. It has been urged that this court should either hold that the D.C.L.R being Collector under the Act, was obliged to exercise his powers suo motu to bring on record the legal heirs, who had already applied for substitution or direct the D.C.L.R to proceed afresh with the preemption cases after allowing the substitution. 11. On the aforesaid issue the rival contentions as noted by the learned Additional Member, Board of Revenue as well as the findings require a deeper consideration. For that purpose , it will be useful to extract the relevant provisions of the Act and the Rules for quick 12 and easy reference:- 2 (ee) “family” means and includes a person, his or her spouse and minor children; Explanation I- In this clause the word person includes any company, institution, trust, association or body of individuals whether incorporated or not; Explanation II- The personal law shall not be relevant or be taken into, consideration in determining the composition of the family for the purposes of the Act; 2(f) “land” means land which is used or capable of being used for agriculture or horticulture and includes land which is an orchard, kharhur or pasturage or forest land or even land perennially submerged under water or the homestead of a land-holder; Explanation l.- “Homestead” means a dwelling house for the purpose of living or for the purpose of letting out on rent together with any courtyard, compound, attached garden, orchard and out-building and includes any out building for the purpose connected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house. Explanation ll.- Land perennially submerged under water shall not include submerged in the bed of a river. 2 (g) “Land holder” means a family as defined in clause (ee) holding land as raiyat or as under-raiyat or a mortgagee of land in possession or holding land permanently settled by Government or lessee of land not resumable by Government; 16 (3) (i) When any transfer of land is made after the commencement of this 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 13 months of the date of registration of the document of the 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 land and possession thereof shall be restored to the transferor 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. “45C. Substitution of legal representative in case of death of land-holder.- if the land- holder dies during the pendency of a proceeding, appeal or revision under this Act, the Collector or the appropriate authority, as the case may be, shall on an application made in this behalf or on his own motion substitute the name of the legal representatives in the 14 manner prescribed in the rules, and the proceeding, appeal or revision shall thereon continue to proceed against the substituted land-holder or holders. Rule 55. Procedure for substitution of legal representative in case of death of the land- holder.- (1) The application for the substitution of legal representatives under- Section 45-C shall be filed in Form L.C. 29 within thirty days of death of the land-holder by the legal representative of the deceased land-holder. (2) On receipt of the application under sub-rule (1), the Collector or the appropriate authority shall substitute the name of the legal representative and proceed with the case (3) Where no application is received within the period prescribed under sub-rule (1), Collector or the appropriate authority shall proceed to substitute the name of the legal representative on his own motion. (4) Where a question arises as to whether any person is or is not the legal representative of the deceased land-holder, such question shall be determined by the Collector or the appropriate authority. 12. From the submissions advanced on behalf of the parties noticed earlier and from relevant provisions of the Act and the Rules, it is obvious that the only relevant issue which remains to be answered is whether provisions in Section 45C of the Act will apply to a proceeding under Section 16 (3) of the Act or not and if so whether the period 15 of limitation of an application for substitution by a concerned party will be 30 days or it will be 3 years under Article 137 of the Limitation Act or there shall be no limitation at all in view of suo motu power of substitution vested in the Collector or appropriate authority under the Act. 13. As noticed earlier learned Additional Member Board of Revenue has given detailed reasons for holding that Section 45C is not applicable to a proceeding under Section 16 (3) of the Act because Section 16 (3) does not refer to any land holder but only to “transferor”, “co-sharer” or “raiyat of an adjoining land” and “transferee”. Earlier we have already differed with his views on applicability of Order XXII of the Code of Civil Procedure and Article 120 of the Limitation Act to a proceeding under the Act. For the reasons indicated hereinafter, we are of the view that learned Additional Member, Board of Revenue was not correct in holding that Section 45C and Rule 55 were not attracted in a preemption proceeding under Section 16 (3) of the Act. 14. No doubt, Section 16 (3) of the Act uses 16 different expressions and not the term “land holder” but it uses the expression “land” which is defined in very wide terms so as to include almost all kinds of lands and goes on to provide that whenever any transfer of land takes place in favour of any person other than a co-sharer or a raiyats of adjoining land then the co-sharer of the transferor or any raiyat holding the adjoining land shall have right to prefer application for preemption within three months of the date of registration of the document of the transfer. In order to answer the issue noticed above, it is necessary to keep in mind the purpose of aforesaid provision. On its face, the provisions exhibit the concern of the Legislature against unnecessary fragmentation of land covered by the Act. A preferential right to claim the transferred land has, therefore, been given to a co-sharer of the transferor or to a raiyat holding the adjacent land. In order to protect the transferee so that he may not have the fear of a preemption application for an indefinite period, a fixed period of three months has been prescribed for preferring the preemption application. The period starts running from the date of registration of the document of transfer because registration implies public 17 notice of the transaction. A careful perusal of the term “land” shows that it is related to the term land holder and can include even the homestead of a land holder including any out building for the purpose connected with agriculture or horticulture. Clearly, whosoever owns and possesses such a land including a co-sharer of such an owner, would be a land holder under the Act. Whosoever, even in violation of the restriction under Section 16 of the Act, purchases such a land would also be covered by the expression “land holder” and whosoever applies for preemption, claiming to be a co- sharer of the transferor or a raiyat holding the adjacent land will also fall in the category of “land holder”. Hence, simply because the word “land holder” does not find place in Section 16 (3) of the Act, it does not and cannot mean that the transferor, the transferee or the applicant are not “land holder” as defined under the Act. 15. There may arise some confusion if the vendor sells all his land and claims not to be a land holder. But while he was a land holder, it was his obligation to offer the vended land for sale to a co-sharer or the adjoining raiyat. Hence, for the purpose of a claim for preemption he is being 18 sued as a land holder so that he may reconvey the land to the preemptor if the claim for preemption succeeds. Hence, the transferor would always be a land holder for the purpose of a proceeding under Section 16 (3) of the Act. Subsequently, when a preemption application is filed, the purchaser has also acquired the status of a land holder and an applicant in a proceeding under Section 16 (3) of the Act is always praying for accepting his claim in the capacity of owner of the transferred land in part being its co-sharer or as a raiyats of adjoining land. In either of the two situations, the applicant must be treated to be a land holder. 16. In view of aforesaid discussion, as indicated earlier we are of the view that in a preemption case under Section 16 (3) of the Act, Section 45C would apply at any stage of the proceeding in case of death of any of the parties- the transferor, the transferee or the applicant. Even in a case where the defence is that the land is not one covered under the Act, till such defence is finally accepted by the authorities, for the purpose of substitution during the pendency of the proceeding at any stage, Section 45C and Rule 55 of the Rules would be attracted. 19 17. Since Section 45C prescribes that the application for substitution shall be dealt in the manner prescribed in the Rules, the period of limitation under Rule 55 has to be treated as 30 days from the death of the land holder. This period being fixed under the statutory Rules, will exclude the application of Article 137 of the First Schedule of the Limitation