IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13916 of 2003 UPENDRA NARAYAN OJHA son of late Mukh Narain Ojha, resident of village Baidrabad Tola- Ojha Bigha P. S. and Anchal-Arwal District Jehanabad. ..Pre-emptor-respondent-opposite party.. Petitioner Versus 1. THE STATE OF BIHAR through the member Board of Revenue, Government of Bihar, Patna. 2. The District Magistrate-cum- Collector, Jehanabad District Jehanabad. 3. The S.D.O., Arwal District Jehanabad. … Respondent Ist Set. 4. Muneshwar Kuer widow of late Ram Naresh Ojha, resident of village- Baidrabad Tola Ojha Bigha P. S. Arwal District Jahanabad vendor-respondent .. Opposite party… Respondent 2nd Set. 5. Naresh Singh 6. Umesh Singh 7. Sanjay Singh Serial 5 to 7 are sons of late Sita Ram Singh and all are residents of village- Nisarpur Sarwar P. S. Arwal District Jahanabad. …Purchaser-appellants-petitioners. respondent 3rd set ----------- 6. 05.10.2009. Heard counsel for the parties. The petitioner has assailed the order dated 23.10.2003 passed by Additional Member, Board of Revenue in Revision 148 of 2001 whereby and whereunder he has set aside three orders namely 10.1.2001 and 28.8.2001 passed by S.D.O. Arwal and the appellate order dated 9.7.2001 passed by Collector of Jehanabad District. Mr. Durga Nand Jha, learned counsel appearing on behalf of petitioner has submitted that Additional Member, Board of Revenue has traveled beyond his jurisdiction in even interfering with an order against 2 which no appeal/ revision was preferred by the respondent-purchasers inasmuch as Revision no. 148 of 2001 was directed against an order of Sub divisional Officer dated 10.1.2001 and its confirmatory order dated 9.7.2001 passed by SDO and Collector respectively. He has further submitted that the nature of these orders dated 10.1.2001 and 9.7.2001 was purely interim in nature inasmuch as the same were only passed in exercise of power under Section 16 (3) (ii) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the „Act‟) and the Additional Member, Board of Revenue had no jurisdiction to even consider much less set aside the final order dated 28.8.2001 which was passed under Section 16(3)(i) of the Act. Mr. Jha therefore would also submit that once the aforementioned revision was already dismissed by the Additional Member of Board of Revenue on 17.8.2002, by taking into account the emergence of subsequent event namely passing of the final order dated 28.8.2001, the Additional Member, Board of 3 Revenue ought not to have recalled the said order and proceeded to pass the impugned order which in his submission amounts to reviewing his own earlier order without there being any such provision in the Act. Counsel for respondents- purchaser on the other hand would submit that true it is impugned dated 23.10.2003 cannot be sustained because there was no appeal or revision preferred against the final order dated 28.8.2001 but then if the order dated 10.1.2001 was itself illegal and had sought to convey a right to the writ petitioner which was wholly impermissible in law, the petitioner could not have been allowed to take advantage of such lapse on the part of Additional Member, Board of Revenue. He has further proceeded to place reliance on the scope of Rule 19(5) of the Bihar Land Ceiling Rules to contend that as a matter of fact nature of order dated 10.1.2001 and 28.8.2001 was one and same and therefore even the order dated 28.8.2001 cannot be said to be a final order. This court would find difficult to accept the submission of counsel for the 4 respondents on a simple proposition that whatever order was passed by the Sub divisional Officer, Arwal on 10.1.2001 was only for giving delivery of possession pending final disposal of the application for pre-emption filed by petitioner. Such exercise of power was well within the powers of the Collector under the Act in terms of Section 16(3)(ii) which reads as follows;- “16.(3)(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 the land and possession thereof shall be restored to the transferee 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).” Order dated 10.1.2001 therefore for effecting delivery of possession in favour of petitioner admittedly on depositing the amount equal to consideration amount along with its ten percent additional amount as per the sale deed in question, cannot be said to be a final order because the final order in terms of section 16(3)(i) has to be passed by 5 either allowing or rejecting the prayer of preemptor in this regard Section 16(3)(i) of the Act reads as follows;- “16(3)(i) 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 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 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.” It is, therefore, clear that when the petitioner had got an order in his favour for delivery of possession that was only an interim order pending disposal of his application for preemption whereas the order dated 28.8.2001 allowing such prayer of the petitioner for preemption is a final order. This Court has also found that before passing of the aforesaid final order dated 28.8.2001, the parties were heard on 30th July 2001 and only thereafter SDO being the Collector under 6 the Act had passed a final order on 28.8.2001 in the following terms:- ^^ blds iwoZ Hkh 22&12&2000@10&1&2001 dks n[ky&dCtk ds fcUnw ij nksuksa i{kksa dks lquk Fkk rFkk vU; dkxtkrksa dk voyksdu ds i'pkr~ eSaus viuk vkns'k ikfjr dj oknh dks n[ky&dCtk fn;k Fkk A bl vkns'k ds f[kykQ] izfroknh la[;k & 2]3]4 us ,d vihy okn la[;k 41@Mh0,e0@2000&2001 lekgrkZ] tgkukckn ds U;k;ky; esa nkf[ky fd;k A mDr vihy okn dks fo}ku lekgRrkZ] tgkukckn us nksuksa i{kksa dks lquus ds ckn fnukad 9&7&2001 dks vLohd`r dj fn;k rFkk vfHkys[k iqu% esjs U;k;ky; esa Hkstk x;k A lHkh fcUnqvksa ij fopkj dj eSa bl fu"d"kZ ij igwWapk gwWa fd oknh us iz'uxr Hkwfe dk dqy tjlEeu jkf'k nks olhdk dk 45]500 $ 45]500@& = 91]000@& rFkk bldk 10% vfrfjDr jkf'k 9]100@&] lgh :Ik esa pkyku }kjk tek fd;k gS A izfroknh la[;k&1] equs'oj dqaoj] oknh misUnz ukjk;.k vks>k ds Co-sharer gSa vkSj iz'uxr~ Hkwfe ds mRrj vkSj nf{k.k oknh dh tehu gS] tcfd izfroknh la[;k& 2]3]4 dh mDr Hkwfe ds fdlh Hkh pkSgnh esa viuh tehu ugha gS A iz'uxr~ dsokyk ua0 7667 ,oa 7668 ds voyksdu ls Li’V gS fd dz; tjlEeu 91]000@& gh gS tks izfroknh la[;k&1 ,oa nks ,oa vU; es r; gqvk Fkk A dksVZ Qhl] LVkEi M~;wVh ,oa jftLVªs'ku Qh] tjleu dh jkf”k ugha ekuk tk ldrk A izfroknhx.k ds rjQ ls dk'kh ukFk vks>k ls lacaf/kr iz'uxr~ Hkwfe ds mRrj rjQ Hkh tehu dk dksbZ dkxtkr izLrqr ugha fd;k x;k A izfroknhx.k dk ;g dFku Hkh Lohdkj ugha fd;k tk ldrk fd iz'uxr~ Hkwfe vkoklh; gS D;ksafd iz'uxr~ olhdk esa iz'uxr~ tehu dk fdLe ^^/kugj** fn;k x;k gS A ekuuh; mPp U;k;ky;] iVuk us Li’V :Ik ls izfrikfnr fd;k gS fd /kkjk 19¼3½ dk Hkwy&pwd /kkjk 16¼3½ ,oa 16¼4½ dks izHkkfor ugha djsxk A vr% izfroknhx.k dk ;g dFku Hkh Lohdkj djus ;ksX; ugha gS fd bl okn esa /kkjk 16¼3½ ,oa 19¼3½ dk fu;e dk mYya?ku fd;k x;k gS A vr% lHkh foUnqvksa ij fopkj djus ds mijkUr esSa oknh ds nkok dks mfpr ekurk gwWa vkSj eSa okn dk QSlyk oknh ds i{k esa nsrk gwWa A vr% izfroknhx.k ua0 & 2]3]4 dks vkns'k fn;k tkrk gS fd os iz'uxr~ Hkwfe IykWV ua0 1116 ¼u;k½] [kkrk ua0 669]672¼iqjkuk½ 155 ¼u;k½ ,jkth 0-35 fMlfey tehu xzke&cSnjkckn] 39 ¼iqjkuk½ Vksyk&vks>k foxgk] Fkkuk ua0&01] Fkkuk&vjoy] ftyk& tgkukckn dks oknh misUnz ukjk;.k vks>k ds i{k esa gLrkUrj.k¼transfer) bl vkns'k ds 20 fnuksa ds vUnj dj nsa vU;Fkk U;k;ky; }kjk mDr iz'uxr~ tehu dk gLrkUrj.k ¼transfer) oknh ds i{k esa dj fn;k tk;sxk A ;g vkns'k 7 fcgkj Hkwfe lq/kkj vf/kfu;e dh /kkjk -------- Land Ceiling ds rgr dh tkrh gS A ** It is thus, clear that order dated 28.8.2001 as contained in Annexure-4 was a final order and merely because the Collector under the Act has used the provision of Rule 19(5) of the Rules for executing the order for the purpose of transfer/conveyance of the land in favour of petitioner that would not make such order an interlocutory order or in the nature of one covered by Section 16(3)(ii) of the Act. As a matter of fact Rule 19(5) is only an extension of Section 16(3)(i) of the Act and merely lays down the procedure for reconveyance of the land after an application for pre-emption is allowed. It is thus, manifest that there was no appeal against the final order dated 28.8.2001 which in terms of section 30 of the Act was to be presented before the Collector of the District. Additional Member, Board of Revenue therefore in absence of appeal against the final order had no jurisdiction to entertain much less set aside the final order passed in favour 8 of petitioner. The scope of Sections 30 and 32 of the Act are quite distinct and in that view of the matter this court must hold that the power exercised by Additional Member, Board of Revenue in setting aside the final order was bad. As a matter of fact, the approach of Additional Member, Board of Revenue in setting aside the interim order 10.1.2001 and its confirmation in appeal on 9.7.2001 was also wholly meaningless because by that time final order had already been passed and in fact without noticing the same authority Additional Member, Board of Revenue had already rejected the same review application on 17.8.2002. The Additional Member, Board of Revenue therefore ought to have refrained himself from exercising power of substantive review. Having thus held that the 9 impugned order dated 23.10.2003 is wholly without jurisdiction, this court must quash the same and leave the parties to avail their statutory remedy as is available to them in law. With the aforementioned observations and directions, this writ application stands allowed. kanchan (Mihir Kumar Jha, J.)