KAULESHWAR SINGH Vs. PARMANAND

JUDGEMENT

(1.) Respondents 3 and 4 in this writ application transferred some land in certain villages by means of a sale deed executed on 16-11-1967. The transfer was in favour of Respondents 1 and 2. The sale deed was registered and the registration was complete on 11-12-1967. I may mention one more fact which, of course, is not of much consequence in this writ application, that Respondents 1 and 2 in their turn had transferred the land by another sale deed executed on 21-11-1967. The registration of this sale deed was completed sometime in February, 1968. The petitioner claiming to be the co-sharer and an adjoining raiyat of the land transferred filed an application on 22-11-1967 under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1962 (Bihar Act 12 of 1962) (hereinafter to be referred to as "the Act'). This application was allowed by the Deputy Collector, Land Reforms, by his order dated 2-2-1963-A copy of this order is Annexure '1' to this writ application. Respondents 3 and 4 were directed to reconvey the land to the petitioner. They went up in appeal. The appellate authority allowed the appeal and remanded the case. After remand, the Deputy Collector, Land Reforms, dismissed the application on 24-8-1968- A copy of this order is Annexure '2' to this writ application. On objection by the transferees that the case was hit by a decision of this Court in Hiralal Agrawal v. Rampadarath Singh, 1968 Pat LJR 384 inasmuch as copy of the deed filed by the applicant was not a copy of the registered deed as contemplated under Section 16 (3) of the Act, it was held by the Deputy Collector that the application filed by the applicant was not in order in view of the said decision of this Court. Hence the application was disallowed. The petitioner went up in appeal. The appellate authority allowed the appeal by its order dated 24-6-1969. A copy of this order is Annexure '3' to this writ application. Before the appellate authority, a point seems to have been taken that Respondents 3 and 4 in the meantime had transferred the land to Other persons but this point was overruled and it was held that the petitioner was entitled to an order of pre-emption against the original transferees, namely, Respondents 3 and 4. The decision of the High Court in 1968 Pat LJR 384 had been upset by the Supreme Court in Hiralal Agrawal v. Rampadarath Singh, AIR 1969 SC 244. Therefore, the point on which the application for pre-emption had been dismissed by the first authority on 24-8-1968 was no longer available to the transferee. But the decision was sought to be supported on his behalf before the appellate authority on the ground that the application filed by the petitioner on 22-11-1967 was premature as it was filed before time. The registration was complete on 11-12-1967. This argument was repelled by the appellate authority saying that the date of execution of the sale deed is the relevant date for the filing of the application under Section 16 (3) of the Act. The matter thereafter went up in revision before the Board of Revenue. The learned Additional Member, Board of Revenue, in his order dated 3-2-1970, a copy of which is Annexure '4' to this writ application, has said that the transfer was by a deed executed on 16-11-1967, the registration of which was completed on 11-12-1987. On the application filed by the petitioner for preemption on 22-11-1967, cognizance was taken by the Deputy Collector on the same date who by his order dated 22-11-1967 not only took cognizance but ordered the applicant to be put in possession of the land in question. The view of the Board is that no final order of pre-emption could be passed in the proceeding initiated on the basis of the application filed on 22-11-1967, cognizance of which application was taken on that date. The applicant under Section 16 (3) bf the Act has obtained a rule from this Court to quash the order of the Board of Revenue contained in Annexure '4'.

(2.) The view taken by the learned Member, Board of Revenue, is directly covered by three Bench decisions of this Court. In Budhnandan Ram v. State, C.W.J.C. 133 of 1969 decided on 30-1-1970 (Pat.) I discussed the point with reference to Hiralal's case decided by the Supreme Court and held that if action is taken on an application filed for pre-emption before registration is complete under Section 61 of the Registration Act, then such action is void. Cognizance of the proceeding being void ab initio is not validated subsequently on the completion of the registration. No effective order under the proviso to Sub-clause (ii) of Section 16 (3) of the Act or under Sub-clause (iii) can be made in such a proceeding. S. N. P. Singh, J. agreed with my view. This case was followed by S. N. P. Singh, J. in Chulhai Mian and Abdul Rahim v. Nabijan Ansari, C.W.J.C. Nos. 339 and 340 of 1969 decided on 8-10-1971 (Pat.) Kanhai-yaji, J. agreed with him. An identical point again succeeded on behalf of the petitioner in Jageshwar Jha v. Addl. Member, Board of Revenue, Bihar, Patna, C.W. J.C. No. 226 of 1969 decided on 13-3-1972 (Pat.) by a Bench of this Court consisting of S. N. P. Singh, J. and my learned Brother.

(3.) Mr. S.C. Misra, appearing for tile petitioner, submitted that the view expressed in the three Bench decisions of this Court is not correct and requires reconsideration. His plank for this submission rested on two grounds: (i) that with reference to the provisions of the Bihar Privileged Persons Homestead Tenancy Act, 1947 (Bihar Act 4 of 1948) which according to his submission more or less are identical with the provisions of Section 16 (3) of the Act, it was held by a Bench of this Court consisting of Ramaswami, C. J. and Raj Kishore Prasad, J. in Ragho Singh v. State of Bihar, 1957 BLJR 445 = (AIR 1957 Pat 163) that the relevant date for making effective order is not the date of the filing of the application but the date of the order with reference to which facts have got to be adjudged. Learned counsel, therefore, submitted that the Bench decisions of this Court in C.W.J.C. 133 of 1969 and others are directly in conflict with the earlier Bench decision of this Court in Ragho Singh's case which decision was not noticed in either of the three Bench decisions and (ii) that there was no inherent lack of jurisdiction in the authority to entertain the application filed before time; at best, it was an irregular assumption of jurisdiction. Therefore, on the principles of Section 21 of the Code of Civil Procedure, as no objection was raised at the earliest possible opportunity, objection as to jurisdiction could not be raised either before the appellate authority or the revisional authority. In my opinion, on scrutiny neither of the two grounds of attack on the earlier Bench decisions of this Court is sustainable.