NAND KUMAR SINGH Vs. MURAT NATH SINGH

JUDGEMENT

(1.) This application by Nand Kumar Singh under Articles 226 and 227 of the Constitution of India is directed against orders, dated the 6th of January 1969 (Annexure '1'), passed by respondent No. 10 and dated the 17th of November. 1969 (Annexure '2'), passed by respondent No. 11 and the resolution, dated the 22nd of October, 1970 (Annexure '3') passed by respondent No. 12, namely, the Member Board of Revenue.

(2.) In order to appreciate the points involved in this case, it will be necessary to state, briefly, the facts. Respondents 4 to 9 (third-set) were the owners of 25 1/2 decimals of land out of plot No. 49 under khata No. 115 of touzi No. 776 and 0-84 acre of land out of plot No. 1118 under khata No. 33 of touzi No. 775 of village Manikpur English within Koelwar Police Station in the district of Shahabad (now Bhoipur). On the 9th of June. 1966, out of the aforesaid lands, respondents (third set) sold 22 decimals of land out of plot No. 49 and 63 decimals of land out of plot No. 1118 to respondents 2 and 3 (second set) for a consideration of Rs. 1,500/- by a registered sale deed. On the 16th of June. 1966, the petitioner filed an application before respondent No. 10 (the Sub-Divisional Officer) under Section 16. Clause (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be referred as 'the Act'1 for pre-emption on the ground that the petitioner held adjoining lands on the North as well as on the West of plot No. 49 and also on the ground that he was a co-sharer of plot No. 49, being the owner of 25 1/2 decimals of land therein. Besides, as stated by the petitioner in paragraph 4 of the application, he held land on south of plot No. 1118. The application of the petitioner before respondent No. 10 was numbered as Bihar Ceiling Act case No. 9 of 1966-67. Subsequently on the 23rd of August, 1966. Murat Singh (respondent No. 1-first set) also filed an application for preemption under Section 16, Clause (3) of the Act of the aforesaid lands transferred to respondents (2nd set) chiefly on the ground that he was a co-sharer in respect of the lands in question. His application was numbered as Ceiling Act case No. 20 of 1966-67 before respondent No. 10. After hearing both the cases and after perusing the evidence on the record, by the impugned order, dated the 6th of January. 1969. (Annexure '1'), respondent No. 10 rejected the application of the petitioner, whereas, he allowed the prayer of respondent No. 1 chiefly on the ground that respondent No. 1 had larger area of land on the boundary of the lands covered in the said registered sale deed whereas the petitioner had a very small area on the boundary. Being aggrieved by the order, the petitioner preferred appeals before respondent No. 11 (the Collector of Shahabad) who also was pleased to dismiss the appeals of the petitioner by his order contained under Annexure '2'. Thereafter, the petitioner preferred revision application before respondent No. 12 who also, by his resolution, dated the 22nd of October, 1970 (Annexure '3'). was pleased to dismiss the revision application. It may be noticed that, apart from the ground for dismissal of the application by respondent Nos. 10 and 11, the Member Board of Revenue also observed in his resolution that the application of the petitioner under Section 16 (3) of the Act was not maintainable as it was premature and also because the cognizance was taken by the Sub-Divisional Magistrate prior to the date when the registration of the sale deed was completed; whereas, in the case of respondent No. 1. although his application was filed on the 23rd of August, 1966. cognizance was taken by the Sub-Divisional Magistrate on the 20th of November. 1966. on the application filed by respondent No.1.

(3.) On behalf of respondent No. 1, a counter-affidavit has been filed on the 13th of May, 1971. in support of the impugned order. Thereafter, reply has been filed by the petitioner on the 23rd of November, 1972. to the counter-affidavit of respondent No. 1. A supplementary affidavit has been filed on behalf of respondent No. 1 on the 22nd of December. 1972.