Khokhari Devi and Others vs The Addl. Member, Board of Revenue and Others

Ashwini Kumar Sinha, J.—This Letters Patent Appeal is by the purchasers and is directed against the judgment and order dated 9.3.1984, passed by the learned Single Judge of this Court in C. W. J. C. No. 897 of 1975. To be more exact appellants no. 1 to 3 are the heirs and legal representatives of one purchaser Khusi Lal Mahto (who was respondent no. 4 in the writ case) and appellant no. 4 is the other purchaser (who was respondent no. 5 in the writ case).

The sole significant question involved in this appeal is as to what is the effect of non-mention of "description of the land" whether held for agricultural, horticultural or homestead as provided in Schedule-I of Form LC 13. Under rule 19 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963 (tor brevity sake known as ''the Bihar Land Ceiling Rules, 1963) (hereinafter referred to as the Rules).

Admittedly, the description of land as to whether it was agricultural, horticultural or homestead was not given in the application filed u/s 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act XII of of 1962) (hereinafter referred to as "the Act"): Admittedly also the district or the subdivision where the land in question was located was not mentioned in the application. Also admittedly, the classification of each plot was not mentioned in the application. This application had to be in Form L. C. 13. This Form L. C 13 contains two Schedules and Schedule-I refers to "description of land transferred" and Sche-dule-II refers to "description of adjoining land or the land held by the co-sharer".

The writ petitioner (Abdul Gafoor) filed an application u/s 16(3) of the Act before the Deputly Collector, Land Reforms, Begusarai, on the ground that he held land adjacent to the land sold in favour of the aforesaid two purchasers (who were respondents no. 4 and 5 of the writ case). This application was contested by the purchasers. The Deputy Collector, Land Reforms, Begusarai, by his order dated 18th January, 1968, allowed the prayer for pre-emption. The purchasers then went in appeal and the appellate court set aside the order and remanded the case back to the D. C. L. R. for fresh decision in accordance with law. On remand, the D. C. L. R., by his order dated 27.12.71, upheld the claim of preemption made by the writ petitioner (Abdul Gafoor). Thereafter the vendees went in appeal before the Collector but the appeal was dismissed and then the vendees preferred a revision before the Member, Board of Revenue. The learned Addl. Member, Board of Revenue, by his order dated 21.11.74, allowed the re-visional application and held that the claim for preemption could not be allowed on the ground that the application u/s 16(3) of the Act bad to be in Form L. C. 13 but the petitioner (Abdul Gafoor) did not furnish information required under that Form and also on the ground that the pre-emptor, though held land adjacent to three of. the plots (plot nos. 424, and 239), he did not hold any land adjacent to plot no. 436. On these two grounds the learned Additional Member, Board of Revenue, allowed the revisional application and the claim for preemption by the petitioner (Abdul Gafoor) u/s 16(3)of the Act was disallowed

Thereafter, the petitioner (Abdul Gafoor) claiming pre-emption filed the writ case (No. 897/75) praying to quash the order of the Addl. Member, Board of Revenue, dated 21st November, 1974.

The learned Single Judge held (i) that the non-mentioning of the description of the land, as provided in Schedule-1 of Form L. C. 13 of the Rules, was not fatal, as the informations furnished in Schedule-I of Form L. C. 13 were substantial and (ii) no prejudice was caused to the purchasers (vendees) by non-mentioning of classification of the plots in question. Having held as such, the learned Single Judge held that the application u/s 16(3) could not be thrown out and thus the writ case was allowed and the order of the learned Additional Member, Board of Revenue dated 21.11.1974 (Annexure-4 to the writ case) was quashed.

Thus the present L. P. A.

The Learned Counsel for the appellants contended that the conditions laid down in Rule 19 were mandatory and unless they were complied with, the application u/s 16(3) of the Act for enforcing the right must fail.

The Learned Counsel for the appellants relied upon the case of Ganesh Prasad v. Yageahwar Tiwari and ors. (1969 P J (sic) 284). It is true that a Bench of this Co (sic) occasion to consider the effect of non-mention of "description of the land" as provided in Schedule-I of Form L.C. 13 and the Bench took the view that this was fatal to the maintainability of the application.

However, the Significant question involved in this appeal is already answered in the Supreme Court case of Hiralal Agrawal. v. Ram Padarath Singh and ors. reported in 1968 P. L. J. R. 68A. This case of Hiralal Agrawal (supra), though decided on 15th July, 1968, was, it seems obvious, not brought to the notice of this Court in the case of Ganesh Prasad v. Yugeshwar Tiwary & ors. (supra), which was decided later on 26th March, 1969. To me, it appears, that if the case of Hiralal Agrawal (supra) would have been brought to the notice of this Court while deciding the case of Ganesh Prasad v. Yugeshwar Tiwary & ors. (supra) the view taken by this Court in Ganesh Prasad''s case (supra) would have been otherwise on the point involved in this appeal. The Supreme Court in the aforesaid case held that the object of Rule 19 in prescribing that the application u/s 16(3) (in Fonn L. C. 13 of Schedule-1) of the Act must be accompanied by a copy of the registered deed, was, to enable the Collector, before he exercises his power, to ascertain the purchase price, the terms and conditions of the sale, the readiness of the applicant to have the land in question reconveyed to him on the same terms and conditions in the sale-deed and the fact of the applicant having deposited the relevant amount in the treasury...

In that case of the Supreme Court, a copy of the registered deed was not furnished along with the application and the Supreme Court, on a consideration of the object of Rule 19 read with section 16(3) of the Act, held that so lone as the application furnishes information necessary for the Collector to proceed with the application, it was a sufficient compliance of the directory prescriptions and the Supreme Court held, in the Tact of that case (i. e. non-furnishing of the copy of registered-deed,) that it was not fatal to the application nor did such an omission deprive the Collector of his jurisdiction to entetain the same nor did it vitiate the proceedings before him or the order thereon made by him. Thus, the argument to the contrary that the conditions laid down in Rule 19 was mandatory was rejected by the Supreme Court. The Supreme Court further held that to hold that if the formality prescribed by Rule 19 was not satisfied, the application would be bad, would be to nullify the object of the statute and it further held that it could not be the intention of the draftsman who framed Rule 19 and Form L. C. 13. The Supreme Court further held that the omission (as was done in the Supreme Court case) to comply with the requirement was not fatal to the application as the instructions in Form L. C. 13 under Rule 19 read with section 16(3) of the Act were only directory and if there was sufficient compliance thereof, the application could be validly entertained by the Collector.

A perusal of the judgment in the case of Ganesh Prasad v. Yugeshwar Tiwary

(supra) shows that the attention of the learned judges in that case was not drawn to the decision in the case of Hiralal Agrawal (supra).

In the present case then what has to be seen is whether, in the application u/s 16(3) of the Act in Form L.C. 13 of Schedule-I (under Rule 19), substantial/sufficient informations were furnished by the applicant or not? It is true that the description of the land whether it was agricultural, horticultural or homestead was not given but the map attached to the application u/s 16(3)showed that the land was agricultural in character. It is also true that the petitioners did not mention the name of the District or subdivision but the applicant did mention the number of the police station and the name of the village. I hold that on the basis of these informations, there could absolutely be no difficulty in finding as to in which district and in which subdivision the land was located.

I further hold that no prejudice has been caused to the purchaser by the non-mention of the classification of the plots in question. For these reasons I hold that substantial/sufficient informations were furnished in Form L. C. 13 of Schedule-1 (under Rule 19) and hence, on the basis of the ratio laid down in the Supreme Court case of Hiralal Agrawal (supra), the application filed u/s 16(3)could not be thrown out.

As I have a heady stated above that this Court in a Bench decision in the case of Ganesh Prasad (supra) took a contrary view, yet on the light of the decision of the Supreme Court in the case of Hiralal Agrawal (supra), the ratio decided by the Supreme Court has to be followed. And in my opinion, the ratio decided in the case of Ganesh Prasad (supra) with regard to the effect of non-mention of "description of the land" as provided in Schedule-1 of Form L. C 13, must be deemed to be impliedly overruled by the Supreme Court in the case of Hiralal Agrawal (supra). The Learned Counsel for the appellants tried to distinguish the decision in the Supreme Court case of Hiralal Agrawal (supra) in the sense that though in that case it was held to be sufficient compliance yet in the present case it could not be held to be as such. The distinction sought to he made is unwarranted and proceeds upon on inherent fallacy. I have already held above that the informations already supplied by the applicant in the application u/s 16(3) of the Act in Form L. C. 13 of Schedule-I (under Rule 19) were in sufficient/substantial compliance of Form L. C. 13 of Schedule-I under Rule 19.

The Learned Counsel for the appellants also sought to contend that the pre-emptor had got lands more than the ceiling area prescribed under the Act and hence the pre-emptor was debarred from pre-empting the lands in question.

To this objection, the pre-emptor had, at the earliest occasion, filed a rejoinder, affidavit and had also adduced evidence in support of his case that he did not have lands in excess of the ceiling area.

On a perusal of the order passed by the learned Additional Member, Board of Revenue, it appears that unfortunately neither party carried this issue to its logical conclusion and there does not seem to have been any finding on this issue either way by the lower courts. Thus, this question is a disputed question of fact and cannot be gone into at this stage of Letters Patent Appeal.

Thus, I hold that there is no substance in this submission also advanced by the Learned Counsel for the appellants. In the result, this appeal fails and is dismisesed.

However, there will be no order as to costs. (The lines have been underlined by me for emphasis).

S. S. Sandhawalia, C.J.

I agree.