Panchu Lal Mahato vs State Of Jharkhand And Ors

Heard Mr. S. K. Sharma, counsel appearing on behalf of the petitioner.

Heard Mr. Arun Kumar, counsel appearing on behalf of the respondent no. 5.

Heard Mr. Ashish Kumar Thakur, counsel appearing on behalf of the respondent nos. 1 to 4.

This writ petition has been filed for the following reliefs:-

(i) "For issuance of order, writ, direction or in the nature of Certiorari for quashing of order dated 23rd December, 2013 passed by Member, Board of Revenue, Jharkhand Ranchi (respondent no. 2) in Revision Case No. 01/2012; whereby and where under Hon'ble Member, Board of Revenue has allowed pre-emption partly in favour of respondent no. 5 & 6 for the area mentioned in the sale deed dated 11.05.2007 excluding 15 × 15 ft. in the corner excluding constructed area;

(ii) For issuance of order, writ, direction or in the nature of Certiorari for quashing of order dated 18th June, 2012 passed by Additional Collector, Dhanbad (respondent no. 3) in L.C. Appeal No. 23/2010; whereby and where under Learned Additional Collector, Dhanbad has allowed Appeal No. 23/2010 and set aside the order dated 27th August, 2010 passed by Land Reforms Deputy Collector, Dhanbad (respondent no. 4) in L.C. Case No. 13/2007-08 and has accepted the claims of the pre-emptors/respondent no. 5 & 6 with respondent to land in question.

(iii) For issuance of appropriate writ, order, direction to stay the operation of order dated 23rd December, 2013 passed by Hon'ble Member, Board of Revenue, Jharkhand, Ranchi in Board Revision Case No. 01/2012 during the pendency of the writ application;

And/or

For issuance of such other writ(s), rule(s), direction(s), order(s) as your Lordships may deem fit and proper under the facts and circumstances of the instant case."

Counsel for the petitioner by assailing the impugned order dated 23.12.2013 passed by Member, Board of Revenue, Jharkhand has submitted that the authority has allowed the application for pre-emption filed by the private respondent except to the extent excluding 15 × 15 ft. in the corner of the property covered by the sale deed involved in this case. He further submits that the authority has treated the land partly residential and partly agricultural.

Counsel for the petitioner submits that as per the sale deed 11.05.2007, the property involved in this case was fully for homestead purposes and the house was already constructed over the property. He further submits that by the impugned order , a partial pre-emption has been allowed and accordingly, this writ petition can be disposed of on a short point i.e.

Whether partial pre-emption under the provisions of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 is permissible in law?

He counsel for the petitioner has relied upon a judgment passed by this Court reported in 1973 PLJR 534 and has referred to Para 8 of the said judgment. He submits that the law is well settled that partial pre-emption in connection with properties involved in a particular sale deed is not permissible in law. He submits that in this judgment, the view of the High Court in earlier judgements have been referred which includes judgement reported in 1969 BLJR 542. He submits that one of the reasons for denying partial pre-emption is that it is not possible to apportion the consideration money involved in the sale transaction and grant right of pre-emption accordingly.

Counsel appearing on behalf of the private respondents on the other hand submits that the impugned order has been passed only to the extent the land was treated as agricultural and the residential portion of the land was excluded. He further submits that there is no illegality in the impugned order.

Counsel appearing on behalf of the respondents-State has also supported the submissions made by the private respondents and as per the report available on record the property was agricultural land. However, the counsel submits that the private respondents has not challenged the impugned order dated 23.12.2013 passed by Member, Board of Revenue, Jharkhand and no cross objection has also been filed in this writ petition.

After hearing both the parties and after considering the materials on record this Court finds that in the impugned order dated 23.12.2013 the authority has treated the property involved in this case as partly residential and partly agricultural and has allowed pre-emption to the extent the said authority has treated the land as agricultural. Meaning thereby, that the authority has allowed partial pre-emption by the impugned order.

This court further finds that it has been decided by this Court in the Judgment reported in 1969 BLJR 542 which has been followed in 1973 PLJR 534 that partial pre-emption in connection with one sale deed is not permissible in law. In the judgement reported in 1969 BLJR 542, the authority had taken a view that the partial pre-emption is not possible as the consideration of the sale deed cannot be apportioned and this view was approved by the High court in the said judgement. From the perusal of the impugned order dated 23.12.2013, this Court finds that the authority has allowed partial pre-emption and this order has not been challenged by the private respondents.

In view of the aforesaid judgment relied upon by the petitioner, this Court is of the considered view that the partial pre-emption is not permissible in law. From the perusal of the impugned order dated 23.12.2013, it appears that only a part of property has been held to be agricultural land and partial pre-emption has been allowed . In such circumstances, this Court is of the considered view that the impugned order dated 23.12.2013 allowing partial pre-emption is not sustainable in the eyes of law.

Therefore, this Court finds that the private respondents herein are not entitled for any claim of pre-emption under Section 16 (3) of the aforesaid Act of 1961.

Accordingly, this writ petition is hereby allowed.