Surendra Kumar Nayak son of Bhuneshwar Nayak, vs The State of Jharkhand & Ors

Counsel for the petitioner is absent.

Heard Mr. Ayush Aditya, counsel appearing for intervener respondent nos. 18 & 19 who are interveners in this writ petition pursuant to order

dated 12.06.2013 passed in I.A No. 1275 of 2008.

Heard Mr. Sahil, J.C to S.C (L&C) appears on behalf of the respondent-State.

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

a) For quashing the order dated 16.03.2007 passed in Case No. 57/2006 passed by the respondent No.2 as contained in Annexure-4 hereof

whereby and whereunder the respondent no.2 though dismissed the revision application filed by the respondent no.5 but in the meantime also to

set aside the order passed by the Appellate Court i.e., respondent no.3 passed in Land Ceiling Appeal No. 21 of 2004 preferred by this writ

petitioner against the order of D.C.L.R., Ramgarh and further held that the entire proceeding U/s 16 (3) (1) void ab initio.

Counsel for the respondent no 18 and 19 submits that the intervener petitioners herein had purchased the property involved in this case and

were accordingly added as party respondents vide order dated 12.06.2013.

The counsel for the respondent by referring to the operative portion of the impugned order dated 16.03.2007 submits that prior to the date of

filing of the application for pre-emption by the writ petitioner, the property was sold ,but in spite of such transfer the subsequent purchaser was

never made party before the original authority. Accordingly, the application filed before the original authority under Section 16 (3) (1) of Bihar

Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 itself was not maintainable and, therefore , the entire

proceeding was void ab initio.

He submits that initial transfer of the property was made by registered deed dated 03.02.2003 which were subsequently transferred to another

person vide registered deed dated 15.02.2003 and the application for pre-emption was filed on 09.04.2003 without making the subsequent

purchaser a party, which was rejected on 28.10.2004. The counsel relied upon judgment reported in 1985 PLJR 397 and 1977 PLJR 371.

The counsel for the state submits that the impugned order has been passed in accordance with law and the same requires no interference by this

court.

After hearing the counsel for the respondent nos.18 & 19 and also counsel for the State, this court is not inclined to give any relief to the writ

petitioner and the writ petition is hereby dismissed on account of following facts and reasons:-

a) The facts of the case as mentioned in the impugned order dated 16.03.2007 clearly projects that the property being 20 decimals of

land in Khata No. 55, Plot No. 394 at Village Heramdaga P.S. Gola District-Hazaribagh were sold to Smt. Sunita Nayak

(respondent no.5 herein) vide registered sale deed no. 296 dated 03.02.2003, further 20 decimals of land in the same Khata and plot

located in the same place was also sold to Smt. Sunita Nayak (respondent no.5 herein) vide another registered sale deed no. 315

dated 03.02.2003.

b) Surendra Kumar Nayak (petitioner of this writ petition) filed application on 09.04.2003 under Section 16(3) (1) of Bihar Land

Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961 exercising his right of pre-emption before the

respondent no 4 on the ground that he was both Raiyat of adjoining land as well as co-sharer of the transferred land.

c) In course of hearing before the respondent no 4 it transpired that Smt. Sunita Nayak (respondent no.5 herein) had sold 20

decimals out of 40 decimals purchased by her to Raneshwar Nayak vide sale deed no. 415 dated 15.02.2003.

d) Admittedly on the date of filing the application for pre-emption i.e., on 09.04.2003 a part of the property was already sold to

Raneshwar Nayak vide Sale deed no. 415 dated 15.02.2003 and said Raneshwar Nayak was not made party.

e) The Respondent no 4 disposed of the application filed by the writ petitioner herein vide order dated 28.10.2004 with remarks that

since part of the land in dispute has already been sold, the second vendee should also be impleaded as a party and fresh application

be filed. Against this pre-emptor i.e., the writ petitioner herein moved an appeal before the Respondent no 3 , who allowed the

appeal on the ground that order of respondent no 4 was not in accordance with the provisions of Section 16(3) (1) of the said Act.

f) The revision application filed against the said appellate order was filed being case no 57 of 2006 and considering the factual

position the Member, Board of Revenue vide impugned order dated 16.03.2007 set aside the appellate order and held as follows:-

It is a settled law that if the whole or a portion of the land for which an application under Section 16(3) (1) of the Act has been flied

is sold or transferred before the date on which such application is filed then the second transferee/transferees also needs to be

impleaded. Not doing so, especially when the fact of the second transfer was known in course of the proceedings in the mother Court

itself, vitiates the entire proceedings and makes it void ab initio. In the instant case neither the current petitioner nor opposite parties

have bothered to implead the second vendees at any stage. What is more they have not done so in spite of orders of the DCLR,

Hazaribagh ordering them to implead the second purchaser.

I, therefore, hold that the entire proceedings under Section 16 (3) (1) are void ab initio. This revision petition is accordingly dismissed

and the impugned order of the Additional Collector, Hazaribagh, is set aside.

g) Considering the facts as narrated in the impugned order it appears that a portion of the land which was of subject matter of the

application filed by the pre-emptor i.e., the writ petitioner under Section 16 (3) (1) of Bihar Land Reforms (Fixation of Ceiling Area

and Acquisition of Surplus Land) Act 1961 was already sold to third party i.e., one Raneshwar Nayak vide sale deed no. 415 dated

15.02.2003 who was admittedly not made party before the respondent no 4.

h) In absence of the subsequent purchaser of the property no relief could have been granted to the pre-emptor (who is the petitioner

in this case) as no order to recover the property to the pre-emptor could have been passed in absence of the second purchaser of the

property namely Raneshwar Nayak. It is not a case of transfer after filing of an application for pre-emption under Section 16 (3) (1)

of the aforesaid act so as to apply the principles of lis pendens but it is a case where second transfer was affected prior to filing of the

application for pre-emption by the writ petitioner. The judgments relied upon by the counsel for respondent no 18 and 19 as reported

in 1985 PLJR 397 as well as 1977 PLJR 371 supports the case of the respondent no. 18 and 19 that in absence of the second

purchaser of the property who had purchased the property prior to filing of the application for pre-emption under Section 16 (3) (1)

of the aforesaid act no relief could have been granted to the pre-emptor and accordingly the petition under Section 16 (3) (1) of the

said Act as filed by the petitioner was itself was not maintainable.

Considering the facts and circumstances of this case, I find no merit in this writ petition. Accordingly, the writ petition is dismissed.