JAWAHAR LAL Vs. ADDITIONAL MEMBER BOARD

JUDGEMENT

(1.) THE petitioners, by two sale deeds, dated the 21st of April, 1969. purchased 0.12 acre of land in Plot No. 1.707 and Plot No. 1708 (whole), appertaining to khata No. 1713 situate in village Chhotki Kako. from respondent No 5 for a total consideration of Rs. 3,000/-execution of the two sale deeds was admitted before the registering authority on the said date, but they were copied out in the prescribed register, in accordance with the provisions of the Indian Registration Act. on the 10th of May, 1969. Respondent No. 4, who owns plots Nos. 1709 and 1702 adjoining the land transferred made 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 referred to as "the Act" -- before the Subdivisional Officer, Jehanabad (respondent No. 3) on the 29th of April. 1969 Before making the application, he had deposited the purchase money under the two sale deeds, together with a sum equal to ten per centum thereof. Respondent No. 3 issued notices of the application to the petitioners and respondent No. 5 on the 1st of May. 1969. By his order, dated the 25th of August, 1969, a copy whereof is annexure "3" to the writ application, respondent No. 3 allowed the application. THE petitioners went up in appeal against the said order, and the Additional Collector. Gaya (respondent No. 2). who heard the appeal, by his order, dated the 14th of April. 1970, a copy of which is annexure "4" to the writ application, allowed the appeal and set aside the order of respondent No. 3 (Annexure "3"). Respondent No. 4 then filed an application in revision before the Board of Revenue, which was finally heard by the Additional Member, Board of Revenue (respondent No. 1) who, by his resolution dated the 1st October, 1970. & copy of which is Annexure "5" to the writ application, set aside the order of the Additional Collector (Annexure "4") and restored that of the Subdivisional Officer (Annexure "3"). THEreafter, the petitioners have filed the present application under Articles 226 and 227 of the Constitution of India for a writ of certiorari quashing the resolution of respondent No. l as contained in Annexure "5" to the writ petition.

(2.) THE only point urged by learned counsel for the petitioners is that respondent No. 3 acted without jurisdiction in passing the order dated the 1st of May. 196JL entertaining the application of respondent No. 4 before the sale deeds were copied out in the prescribed register in accordance with the provisions of the INdian Registration Act and consequently final order, dated at the 25th of August 1969 passed by him was also without jurisdiction.

(3.) IT has been contended by Mr. K. D. Chatterji. who has appeared for respondent No. 4. that, as the aforesaid point was not taken in any of the Courts below the petitioners should not be allowed to raise it for the first time before this Court. IT has been stated on affidavit in the writ petition filed before this Court that the point was raised before respondent No. 1. The resolution of respondent No. 1. however, does not show that the point was raised before him. and we will proceed on the assumption that it was not raised there. In our opinion, as a writ of certiorari is sought in this case on the ground of absence of jurisdiction, the point urged on behalf of the petitioners can be allowed to be raised for the first time even before this Court. In Halsbury's Laws of England, Third Edition Volume 11. at page 75. Article 138 it is stated: