KUTESHWAR CHOUBEY Vs. STATE OF BIBAR

JUDGEMENT

(1.) This writ petition has been filed for issuance of a writ of certiorari quashing the order passed by the Member Board of Revenue in case No. 264 of 1972 on 3.9.1974 a case under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and acquisition of Surplus Land) Act, 1961 (hereinafter called "the Act").

(2.) The land in question having an area of 30 and odd acres is situate in village Majhigawan. Admittedly the petitioner Kuteshwar Choubey and respondents 6 and 7. Rama Choubev and Khushi Chouhey respectively, were co-sharers of the land, the share of the petitioner therein being half, and the other half belonging to the two respondents named above. On 26 3 1966 respondents 6 and 7 (Rama Choubev and Khushi Choubev) sold their half share in the aforesaid plots to respondents 8 and 9 (Sumitra Devi and Kaushalya Devi respectively) for a sum of Rs. 16000. The sale deed though executed on 26.3.1966 was actually registered under sections 60 and 61 of the Registration Act on 20.6.1966. Before the actual registration, however, respondents 8 and 9 sold the land to one Ganesh Choubev son of respondent no. 9 for a sum of Rs. 25000 on 25.4.1966. This sale deed was actually registered on 23.7 1965 under the provision of sections 60 and 61 of the Registration Act Possession is also said to have been delivered to Ganesh Choubev on the basis of the sale-deed. Ganesh Choubey, however, is notia party to this writ petition. Admittedly, Sumitra Devi is issuless.

(3.) The petitioner Kuleslwar Choubey being a co-sharer of the land wanted to purchase the land himself and so on 28.4.1966 i.e. a little more than a month after the land had been sold to respondent nos. 8 and 9, and three days after the sale by respondents 8 and 9, to Ganesh Choubey, filed a petition under section 16(3) of the Act. Cognizance of that petition was taken by the Subdivisional Officer, Garhwa on 1,7.1966. In the sale deed Ganesh Choubey is also shown as a tenant of the adjoining land. The proceeding was contested in the court of the Subdivisional Officer in the ground that the sale deed in favour of Ganesh Choubey was a sham and farzi transaction. As I have said above Ganesh Choubey had not been made a party to the proceeding, and so the learned Subdivisional Officer dismissed the application. The order of the learned Subdivisional Officer is Annexure 3 to the writ petition. An appeal was preferred by Kuteshwar Choubey against the above order before the Additional Collector under section 30 of the Act. The Additional Collector found the sale deed in favour of Ganesh Choubey to be a sham transaction and hence he held that Ganesh Choubey was not a necessary party to the proceeding. He, therefore, set aside the order of the Subdivisional Officer and allowed the prayer for pre-emption to Kuteshwar Choubey. He also fixed a date for execution of a sale deed in favour of the petitioner by Sumitra Devi and Kaushalya Devi. The order of Additional Collector is Annexure 2 to the writ petition. Sumitra Devi and Kaushalya Devi preferred a revision against the above order before the Commissioner which was rejected on 11.7.1972 because he had no revisional powers. Thereupon a revision was filed by Sumitra Devi and Kaushalava Devi before the Board of Revenue which was disposed of on 3.9.1974. The learned Additional Member found that Ganesh Choubey had become the owner of the disputed land prior to the filing of the pre-emption application before the Collector and so there could be no question of allowing the claim of pre-emption against the petitioners there (Sumitra Devi and Kaushalya Devi), the learned Additional Member, Board of Revenue, thus, allowed the revision and set aside the order of the Additional Collector. The resolution of the Board of Revenue is Annexure 1 to the writ petition and against that order Kuteshwar Choubey has preferred this writ petition.