RAM CHANDRA SRIVASTAVA Vs. PARSIDH NARAIN SINGH

JUDGEMENT

(1.) THIS application under Articles 226 and 227 of the Constitution is directed against the order of the Collector of Patna (Respondent No. 7), in the first instance; that of the Commissioner, Patna Division, Patna (Respondant No. 6) on appeal, and finally that of the Member Board of Revenue (Respondent No. 5) in revision, concurrently rejecting a petition filed by the petitioners 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 referred to as 'the Act'). The relevant facts are not in dispute and may be briefly stated as follows:

(2.) ON the 23rd October, 1962, two sale deeds were executed and registered in favour of Prasidh Narain Singh (Respondent No. 1); one for Rs. 400/- by Swaroop Singh (Respondent No. 2, since deceased, and represented by his legal representatives) in respect of .03 acre of land comprised in plot No. 738 in village Sadabh, Pargana Masaurha police station Bikram, district Patna, and the other for Rs. 650/- by Shrimati Lalmati Devi (Respondent No. 3) in respect of .03 acre of land in plot No. 738 as well as .10 acre of land in plot No. 2661 situated in the same village. ON the 5th December, 1962, the petitioners made an application to the Collector under Section 16(3) of the Act for being put in possession of the lands covered by both the sale deeds and for a direction to Respondent No. 1 to execute a document of transfer in their favour-Along with the petition the petitioners filed a challan showing a deposit of Rs. 1050/- plus Rs. 105/- as required by the proviso to Clause (i) of Sub-section (3) of Section 16. In the original petition particulars as required in Schedule I of Form LC13, mentioned in Rule 19(1) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963, hereinafter referred to as 'the Rules', framed under Section 45 of the Act, had not been furnished. But subsequently they were furnished by the petitioners on the 29th December, 1962. Since, however, the Rules had not been published until then, the Collector rejected the petition as not maintainable by his order dated the 30th August. 1963. A copy of the Collector's order is Annexure '1' to the writ application.

(3.) ON remand, the Collector again rejected the petition by his order dated the 21st June, 19G6, holding that respondent No. 1 had interest in plot Nos. 2659 and 2660, both adjoining plot No. 2661, which is one of the plots in dispute, and as such the petitioners were not entitled to the right of pre-emption which they were claiming since "Law does not give superior right to co-sharers to that of the tenants of the adjoining lands. In fact, the right of pre-emption itself is a weak right and the settled law is that an attempt to defeat this right of pre-emption by legitimate means is justified". It appears, however, that the Collector did not record any clear findings as to whether the petitioners were or were not co-sharers of either of the two plots in dispute. A copy of the Collector's order Is Annexure '3' to the writ application.