DEO NANDAN MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The prayer of the petitioner in this application is that the order of the Additional Member, Board of Revenue, dated the 1st, June, 1968, a copy of which is Annexure "4" to the application, should be called up and quashed by issue of an appropriate writ under Articles 226 and 227 of the Constitution. The relevant facts are as follows :--

(2.) On the 29th December, 1964, Ram Deo Pandit (Respondent No- 2) took two sale deeds from Gaya Thakur, Ram Ekbal Thakur and Rup Narain Thakur (Respondents 3 to 5); one for Rs. 1500/- in respect of 7 kathas 16 dhurs of land in village Sisai comprised in plot No. 975 (3 kathas 15 dhurs), and plot No. 976 (4 kathas, 1 dhur), and the other for Rs. 300/- in respect of 1 khata, 3 dhurs forming the northern portion of plot No. 770 in the same village. Plots Nos. 975 and 976 lie on the northern boundary of plot No. 977 which is recorded in the name of the petitioner's father, Pandit Suchit Mishra. The petitioner had also obtained on the 3rd Tune, 1958, a Zarpeshgi for Rs. 1550/- from Gaya Thakur (Respondent No. 3) in respect of 4 kathas, 10 dhurs in plot No. 976, besides portions of two other plots, namely plot Nos. 660 and 965, redeeming thereby an earlier Zarpeshgi of the year 1953 in respect of the same area in plot No. 976 and a portion of plot No. 660. This Zarpeshgi was subsisting at the time of the purchase made by Ram Deo Pandit (Respondent No. 2) on the 29th December 1964. The petitioner had also purchased on the 6th July, 1959, 1 katha out of the southern portion of plot No. 770 from Respondents Nos. 3 to 5 for a consideration of Rs. 300/-in the name of his son Umeshanand Mishra. On the 11th March, 1965, the petitioner filed an application under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus land) Act, 1961 (Bihar Act 12 of 1962), hereinafter to be referred to as the "Act", for being put in possession of the land covered by the two sale deeds of the 29th December, 1964, in favour of Ramdeo Pandit (Respondent No. 2), and for an order directing him (Respondent No. 2) to convey the said land in his favour. This petition was allowed by the Sub Divisional Officer Chapra, by his order dated the 13th July, 1966, a copy of which is Annexure "1" to the writ application, and that was also upheld by the Additional Collector by his order the 2nd February, 1968, a copy of which is Annexure "3" to the writ application. On an application under Section 32 of the Act, however, the Additional Member, Board of Revenue, (Respondent No. 6) set aside the orders of the Subordinate Revenue authorities and rejected the application under Section 16 (3) of the Act on the ground that it was not entertainable at all, since, the purchase money as contemplated by the proviso to Clause (i) of Section 16 (3) of the Act was not deposited by the petitioner.

(3.) Section 16 (3) of the Act is in the following terms;-- (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 months of the date of the registration of the document of 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 per cent, 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 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 per cent, 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." It will be seen that the application envisaged by Clause (i) of the sub-section has to be filed in the prescribed manner for transfer of the land to the applicant on the same terms and conditions as are contained in the deed o transfer which forms the cause of action for the application. It is also requisite that the application must bo accom-pained by a chalan showing the deposit as prescribed in Rule 19 of the Bihar Land Re-forms (Fixation of Ceiling Area and Acqui-'sition of Surplus Land) Rules, 1963, in the Government Treasury, of the purchase money together with a sum equivalent to ten per cent, thereof, and it is only on such deposit having been made by a competent person that he becomes entitled to be put iu possession of the land, irrespective of the fact that his application under Clause (i) is pending for decision.