- (1.) With the consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality.
(2.) The instant intra-Court appeal is directed against the order/judgment dated 14.02.2018 passed by learned Single Judge of this Court in W.P.(C) No.6303 of 2003 whereby and whereunder the writ petition has been dismissed as the learned Single Judge has declined to interfere with the order dated 12.12.1998 passed by the Land Reforms Deputy Collector, Palamau in L.C. Case No. 14/1991-92 whereby the claim of pre-emption made by the Respondent No.5 under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Hereinafter to be referred as "the Act of 1961") has been allowed, the order dated 26.11.2002 passed by the Deputy Commissioner, Palamau in L.C. Appeal No. 15/78/98-99 as also the order dated 11.10.2003 passed by the Member, Board of Revenue, Jharkhand in Board Case No.55 of 2002.
(3.) The brief facts of the case which need to be enumerated herein, read as under :- The petitioner before the Writ Court, namely Radhika Devi, is the purchaser of the property being Plot No.557 under Khata No.285 measuring an area of 0.21 acres of Village Turuk-Taleya Purubdiha, P.S.-Chainpur, District-Palamau from the respondent no.6 by virtue of registered sale-deed no.6553 dated 04.07.1991. The respondent no.5 claiming herself to be adjoining Raiyat of the said cultivated land filed an application under Section 16(3) of the Act of 1961 before the Land Reform Deputy Collector, Palamau claiming her right of pre-emption which was registered as L.C. Case No. 14/91-92. The writ petitioner filed her response to the said application for pre-emption filed by respondent no.5 before the original authority taking point that the property in question is homestead land and further that a portion of the property was gifted to her daughter by virtue of registered gift-deed dated 30.08.1991. According to the writ petitioner, the formalities in connection with the gift, including handing over the possession of the property to the daughter took place prior to the filing of application under Section 16(3) of the Act of 1961 but was registered on 30.08.1991 i.e., after filing of the application for pre-emption by the respondent no.-5. The said application was rejected by Land Reforms Deputy Collector, Palamau by order dated 02.01.1992 passed in L.C. Case No. 14/91-92 against which, the appeal was filed before the Deputy Commissioner, Palamau, registered as Land Ceiling Appeal Case No. 15/10/92-93, which was also dismissed vide order dated 24.09.1993. Against the appellate order, the respondent no.5 filed a revision case before the Member, Board of Revenue, Bihar at Patna which was registered as Revision Case No.484 of 1993 wherein vide order dated 26.12.1996 the order passed by the lower authority was quashed and the matter was remanded for fresh consideration by recording a finding that the gift-deed involved in this case would be governed by the doctrine of Us pendens and accordingly, the said gift-deed could not thwart pre-emption. Further the Member, Board of Revenue also recorded that there is no finding in connection with the fact that whether the pre-emptor was an adjoining Raiyat or not. An issue was raised on behalf of the writ petitioner that the order dated 26.12.1996 did not prevent the authorities below to enter into the dispute as to whether the gift-deed would be governed by the doctrine of Us pendens or not and it was open to them to contend that the provision of Section 16 would not apply to the gift-deeds at all. So far as the point regarding the adjoining Raiyat is concerned, submission has been advanced that pursuant to the order of remand dated 26.12.1996 passed by the Member, Board of Revenue, the matter was examined afresh by the authorities below and the original authority i.e. Land Reforms Deputy Collector vide fresh order dated 12.12.1998, has decided the issues in favour of the pre-emptor, however, by recording a finding that the pre-emptor is the adjoining Raiyat. So far as the gift-deed is concerned, the said authority has refused to enter into the dispute in view of the categorical finding in earlier Revision Case No.484 of 1993.So far as the claim that the land in question is homestead land and accordingly Section 16(3) of the aforesaid Act would not apply is concerned, the aforesaid plea was rejected. Against the aforesaid order, an appeal was filed which was also rejected vide order dated 26.11.2002 wherein the non-applicability of the provisions to the homestead land was rejected and on the point of gift-deed the said authority refused to entertain the plea. Against the order passed by the appellate authority, the writ petitioner filed revision being Revision Case No.55 of 2002 which was also dismissed vide order dated 11.10.2003. The order passed by the revisional authority dated 11.10.2003 in Revision Case No. 55 of 2002 was assailed before the writ court inter alia on the ground that in refusing to enter into the merits so far as the plea regarding gift-deed is concerned, on the ground that the earlier revisional order passed in Revision Case No.484 of 1993 has already decided the issue but the aforesaid finding is absolutely incorrect in view of the fact that the applicability of Section 16 of the aforesaid Act to the gift is concerned, was still open for consideration and having not considered the same, gross illegality has been committed. Further submission has been made before the writ court regarding homestead land which has also wrongly been decided by the revisional authority. Learned counsel for the writ petitioner has relied upon a judgment reported in 1985 PLJR 662 in the case of Smt. Priyambada Devi V. The Addl. Member, Board of Revenue, Bihar, Patna and Ors. to submit that Section 16(3) of the Act does not apply to gift-deed. Further reliance has been placed upon the judgment passed by this Court on 31.10.2014 in C.W.J.C. No.72 of 1999(R) with C.W.J.C. No.74 of 1999(R) by referring to para-5 of the said judgment which refers to the judgment reported in 1985 PLJR 662. On the point of claim of the property being homestead land, submission has been made on behalf of the petitioner that by virtue of specific amendment in Section 4 of the Act of 1961, reference to homestead was deleted vide amendment carried out in the year, 1973 and accordingly, when Section 4 is to be read with Section 3 then it can be construed that Section 16(3) of the Act will not be applicable to homestead land. While on the other hand, learned counsel appearing for Respondent No.5 has defended the order passed by the authorities by raising an issue that the gift deed having been executed only on 30.08.1991 by way of registered document and the application for pre-emption having been filed on 21.08.1991 the doctrine of Us pendens will apply and no transfer of immovable property can be acknowledged unless it is done so by a registered document. It has further been submitted that by recording the finding to the effect that any alleged oral gift of a date prior to filing of pre-emption has no standing in the eyes of law. A document transferred into writing after the date of filing of a pre-emption is hit by doctrine of Us pendens under the Transfer of Property Act and such alleged gift would not cover pre-emption. It has further been submitted that the finding to the effect that principle of Us pendens was not challenged by the writ petitioner and as such it was not open to the authorities to enter into the issue as to whether the application under Section 16(3) of the Act of 1961 was maintainable due to the alleged gift and accordingly, the authorities below have rightly not entered into the above issue. So far as the issue regarding adjoining Raiyat is concerned, the original authority after remand as well as the appellate authority after remand, have given categorical finding that the respondent no.5 was the adjoining Raiyat and from the order dated 11.10.2003 passed by the Member, Board of Revenue it appears that the same was not an issue before the revisional court. So far as the applicability of the provision of section 16(3) of the Act of 1961 is concerned, it was submitted on behalf of respondent no. 5 that the issue is covered by the Judgment passed by this Court in the case of Saikun Bibi v. State of Jharkhand reported in 2005(4) JLJR 3 wherein the definition of "land" has been considered and has been held that land includes "homestead" property also. The writ court, after taking into consideration the aforesaid rival submissions advanced on behalf of the parties, has come to a conclusive finding to the effect that the writ petitioner has failed to make out a case and accordingly the writ petition was dismissed. The aforesaid order is the subject matter of the instant intra-court appeal. ;