U.N.Sinha, J. - (1.) This application has been filed by three petitioners under Articles 226 and 227 of the Constitution of India, praying that an order passed by the Additional Member, Board of Revenue, Bihar, dated the 18th April, 1967 (Annexure G), in proceeding under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act XII of 1962) may be quashed. In order to appreciate the relevant facts, stated hereinafter. Section 16(3) of this Act is quoted below:-- "Section 16(3) (i) When any transfer of land is made after the commencement of this Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled within three months of the date of registration of the document of transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed; Provided that no such application shall be entertained by the Collector unless the purchase-money together with a sum equal to ten per cent, thereof is deposited in the prescribed manner within the said period. (ii) On such deposit being made the co-sharer or the raiyat shall be entitled to be put in possession of the land irrespective of the fact that the application under Clause (i) is pending for decision; Provided that where the application is rejected, the co-sharer or the raiyat as the case may be, shall be evicted from the land and possession thereof shall be restored to the transferee and the transferee shall be entitled to be paid a sum equal to ten per cent. of the purchase-money out of the deposit made under Clause (i). (iii) If the application is allowed, the Collector shall by an order direct the transferee to convey the land in favour of the applicant by executing and registering a document of transfer within a period to be specified in the order and if he neglects or refuses to comply with the direction, the procedure prescribed in Order 21, Rule 34 of the Code of Civil Procedure, 1908 (V of 1908) shall be so far as may be, followed."
(2.) The facts necessary for determination of this writ application are as follows: The petitioners had filed an application under Section 16(3) of this Act before the appropriate authority, mentioning that Srimati Urmila Devi, respondent No. 3 of this Court, had transferred 5 kathas 12 dhurs of land, described in schedule 1 of this application, by a sale deed registered on the 30th March, 1965, to three persons, namely, (1) Smt. Sarjug Kumari, wife of Jugal Potdar, (2) Smt. Nanheeyan Devi, wife of Ramcharitar Potdar, and (3) Smt. Parvati Devi, wife of Ram Agar Potdar. (The three ostensible vendees have been impleaded in this Court as respondents Nos. 4, 5 and 6 and their respective husbands have been impleaded as respondents Nos. 7, 8, and 9). The petitioners claimed that the vended properties may be transferred to them on the terms and conditions contained in the deed of sale. A copy of the registered deed was attached and it may be mentioned that the sale deed had been executed on the 25th March, 1965. A rejoinder to this application was filed by the three ladies and their husbands (Annexure B), substantially making out the following case. It was alleged in paragraph 5, quoted below, that, the three husbands of the three ladies had purchased the disputed properties by a sale deed dated the 25th March, 1965, for Rs. 1500/-, from Srimati Urmila Devi. The details of the lands sold were also mentioned. Paragraph 5 of the rejoinder runs thus:-- "That the applicants have filed this case and put their claim under Section 16(3) of the Act over the lands described below which the Opposite Party Nos. 4 to 6 have purchased by virtue of a registered sale deed dated 25-3-65 for Rs. 1500/- from Smt. Urmila Devi village Palidih T. No. 4148 thana No. 305. JUDGEMENT_253_AIR(PAT)_1970Html1.htm It was alleged, further, that on the eastern boundary of plot No. 148 Jangal Potdar, Ram Charitar Potdar and one Sukhdeo Potdar had land in plot No. 459 by settlement. It was contended, there fore, that plot No. 148 could not be the subject-matter of a proceeding under Section 16(3) of the Act. So far as plot No. 145 was concerned, it was alleged, that, 'the Opposite Party' had also lands adjoining this plot and so plot No. 145 also could not be the subject-matter of this proceeding. Similarly, It was alleged, that, 'the Opposite Party' had some land adjoining plot No. 197 also, and, therefore, this plot also could not be the subject-matter of a proceeding under this Act. It will be necessary to quote here paragraph 12 of the rejoinder, dealing with plot No. 197, for reasons to be clarified later on. That Paragraph runs thus:-- "12. That plot No. 197 is in the eastern and northern boundary of plot No. 195 Khata No. 222 which is the land of the opposite party. The name of the opposite party Jangal Potdar is recorded in the landlords' Sherista and also in the sherista of the Anchal the opposite party pays and and (sic) gets rent receipts from the State of Bihar having its jamabandi No. 2 in which land of plot No. 145 is also included." Various allegations were made as against the applicants under Section 16(3) of the Act with respect to their claim to be rai-yats of the adjoining lands. The prayer made in the rejoinder petition was to the effect that the parties filing the rejoinder may be restored to possession, after rejecting the application filed under Section 16(3) of the Act.
(3.) By order dated the 21st June, 1966, the Additional Collector of Monghyr allowed the application filed under Section 16(3) of the Act, directing that the disputed lands be conveyed to the applicants (Annexure C). This order was confirmed by the Commissioner of Bhagalpur Division by his order dated the 26th December, 1966 (Annexure E). Thereafter, the impugned order was passed by the Additional Member, Board of Revenue, on an application filed by the three ladies and their husbands jointly under Section 32 of the Act. The learned Additional Member has set aside the orders passed by the two authorities mentioned above.;