KEDAR MISHRA Vs. STATE OF BIHAR & ORS.
Supreme Court of India (Full Bench (FB)- Three Judge)
Appeal (Civil), 3778-3780 of 2016, Judgment Date: Apr 12, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3778-3780 OF 2016
(Arising out of SLP(C) Nos. 8038-8040 of 2011)
KEDAR MISHRA …Appellant
VERSUS
THE STATE OF BIHAR & ORS. ….Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. These appeals arise out of a common judgment and order dated
15.12.2010 passed by the High Court of Judicature at Patna dismissing Writ
Petitions being C.W.J.C. Nos.10339, 10355 and 10356 of 1999 on the ground
that there has been no sufficient compliance of the requirement of Rule 19
of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus
Land) Rules 1963 and Form L.C. 13 of the Rules and declining to interfere
with the order passed by the Additional Member, Board of Revenue dated
31.08.1999 and thereby negativing the appellant’s claim of right of pre-
emption.
3. Lands involved in all the three cases belonged to one Ram Kailash
Mishra, who died leaving behind his three sons, namely, Ramadhar Mishra
(Vendor), Kedar Mishra (appellant) and Ayodhya. The genealogical table of
Ram Kailash Mishra is as under:-
Ram Kailash Mishra
Ramadhar Mishra Kedar Mishra
Ayodhya Mishra
(Vendor) (Appellant)
Kalawati Devi Dharamwati Devi Sunita Devi Radhika
Devi Kaushal Kishore Mishra Brij Krishore Mishra
R-12 R-13 R-14
R-15 (R-16) = Bandana Mishra
(R-17)
4. Ramadhar Mishra was the vendor and Kedar Mishra the appellant/pre-
emptor claimed right of pre-emption both as adjoining land owner as well as
co-sharer of the land sold. On 06.02.1988, three sale deeds were executed
by late Ramadhar Mishra out of which sale deed with respect to 40 decimal
of land out of Chak Plot No.105 having a total area of 1.20 acres was
executed in favour of Kamala Devi wife of Rang Bahadur Singh and Janak
Dulari Devi wife of Bir Bahadur Singh. With respect to 1/3rd share out of
Chak Plot No.128, 94 decimal of land out of total area of 2.82 acres sold
by late Ramadhar Mishra in favour of Bir Bahadur Singh and Rang Bahadur
Singh by two different sale deeds respectively 47 decimal each. Claiming
right of pre- emption and impugning the above three sale deeds, appellant
filed three pre-emption cases in Pre-emption Case Nos. 14 of 1992, 12 of
1992 and 13 of 1992 respectively. The Deputy Collector Land Reforms (DCLR)
by common order dated 10.07.1995 allowed all the three pre-emption cases
observing that the pre-emptor/appellant is an adjoining raiyat and also a
co-sharer of the disputed land. The said order of DCLR dated 10.07.1995 was
challenged in pre-emption Appeal Nos. 8 of 1995, 9 of 1995 and 10 of 1995.
The aforesaid three appeals were allowed by the Additional Collector,
Rohtas at Sasaram by a common order dated 16.04.1996 setting aside the
order of DCLR. Being aggrieved by the order dated 16.04.1996 passed by the
Additional Collector, Rohtas at Sasaram, the appellant filed revision in
Revision Case Nos.174, 175 and 176 of 1996 before the Board of Revenue and
all the three revision cases were allowed by a common order dated
19.03.1997 setting aside the order of the appellate authority. The
abovesaid common order of the Board of Revenue was challenged by the
vendees before the High Court in C.W.J.C. Nos. 8217 of 1997, 8237 of 1997
and 7039 of 1997. All the three writ petitions were disposed of by a
common order dated 24.09.1998 and the matter was remitted back to the Board
of Revenue for deciding the matter afresh. While so remitting the matter,
the High Court by its order dated 24.09.1998 directed that the revisional
authority shall determine the issue as to whether appellant/pre-emptor had
deposited the consideration money along with ten percent amount in favour
of the Collector in accordance with law or not.
5. Pursuant to the direction of the High Court, Revenue Case Nos.174,
175 and 176 of 1996 were taken up and heard afresh by the Board of Revenue,
Bihar. The Additional Member, Board of Revenue vide order dated 31.08.1999
dismissed the revision petitions filed by the appellant holding that the
requisite money was not deposited in favour of the Collector in compliance
with Rule 19 Form L.C.13 and consequently, pre-emption applications of the
appellant stood dismissed. Being aggrieved, the appellant filed writ
petitions before the High Court in C.W.J.C. Nos.10339, 10355 and 10356 of
1999. All the three writ petitions came to be dismissed by the impugned
order holding that the deposit for filing of pre-emption cases was made in
favour of the District Collector under the head '0029 L.R.' and the
prescribed head is '2029 Land Revenue' and there was no sufficient
compliance of Rule 19 and Form L.C. 13 of the rules. Being aggrieved, the
appellant has preferred these appeals.
6. We have heard learned counsel for the parties at considerable
length. Learned counsel for the appellant contended that the requisite
amount of money for filing the pre-emption cases was deposited under head
'0029 L.R.' through treasury and there has been sufficient compliance of
Rule 19 Form L.C. 13 and hence the findings of the High Court that there
was no sufficient compliance of Rule 19 and Form L.C. 13 is not
sustainable. It was submitted that the requirements of Rule 19 and Form
L.C.13 of the rules are directory in nature and even assuming that if there
was no compliance of the said rules, appellant’s substantive right of pre-
emption cannot be defeated.
7. Per contra, learned counsel for the respondents submitted that the
treasury challan under head '0029 L.R.' could not be withdrawn by the
Collector under the Act in the pre-emption proceedings to make it over to
the concerned person and the error in the challan goes at the root of the
matter and the Board of Revenue and the High Court rightly dismissed the
pre-emption cases of the appellant.
8. We have carefully considered the rival contentions, perused the
impugned order as well as the order of the Board of Revenue dated
31.08.1999 and other material on record.
9. It is relevant to quote Section 16(3) of Bihar Land Reforms
(Fixation of Ceiling Area and Acquisition of Surplus land) Act, 1961 (Bihar
Act No.12 of 1962) which reads as under:-
Section 16: Restriction on future acquisition by transfer etc:-
xxx xxx xxx
xxx xxx xxx
“(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
transfered, 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 percent 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 percent 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 XXI, Rule 34 of the Code of
Civil Procedure, 1908 (V of 1908), shall be, so far as may be followed.
The revision against the order passed by the Collector or Additional
Collector under Section 16(3) of the Act will be before the Divisional
Commissioner who after hearing the parties shall pass orders in the case
filed before him. (Inserted by Act 10 of 2006)”
The object of Section 16(3) of the Act is to secure consolidation by giving
the right of re-conveyance to a co-sharer or a raiyat of an adjoining area
so that the land in question can be used in the most advantageous manner
and also to prevent fragmentation of the land. In terms of Section
16(3)(i), no pre-emption application shall be entertained by the Collector
unless the purchase money together with a sum equal to ten percent thereof
is deposited by the person claiming right of pre-emption in the prescribed
manner within the said period.
10. Rule 19 deals with the application by a co-sharer or a raiyat of
adjoining land for transfer of land under Section 16(3). Rule 19 reads as
under:-
“19. Application by co-sharer or a raiyat of adjoining land for transfer of
land under Section 16(3).-(1) Application by a co-sharer or raiyat of
adjoining land for transfer of land under Section 16(3) shall be in Form
L.C.13 and the purchase money together with a sum equal to ten percent
thereof shall be deposited in the Treasury/Sub-treasury of the district
within which the land transferred is situated.
(2) A copy of Challan, showing deposit of the amount under sub-rule (1)
together with a copy of the registered deed, shall be filed along with the
application in which also a statement to this effect shall be made.
(3) A copy of the said application shall also be sent simultaneously by the
applicant to the transferor and the transferee by registered post with
acknowledgment due.
(4) The Collector shall issue a notice to the transferor, the transferee
and the applicant to appear before him on a date to be specified in the
notice and after giving the parties concerned a reasonable opportunity of
showing cause, if any, and of being heard, shall by an order in writing,
either allow the application in accordance with clause (iii) of sub-section
(3) of Section 16, or reject it.
(5) If the application is allowed under item (iii) of sub-section (3) of
Section 16 and the transferee is directed by the Collector by any order to
convey the land in favour of the applicant by executing and registering a
document of transfer, the applicant shall be required to pay the
registration fee.
(6) Where the application is allowed and the transferee conveys the land in
favour of the applicant under Section 16(3)(iii), the transferee shall be
allowed to withdraw the money deposited by the applicant.”
11. Form L.C. 13 is a form of application by a co-sharer or a raiyat
of adjoining land for transfer of land to him under Section 16(3)(i) of the
Act (12 of 1962). As per Form L.C. 13 para (2), the applicant claiming
right of pre-emption has to enclose copy of District/sub-treasury/treasury
challan showing that he has deposited the amount equal to ten percent
thereof to the credit of the Collector of the area concerned under the Act.
12. In compliance of Section 16(3)(i) and Rule 19, for all the three
pre-emption cases, the appellant has deposited ten percent of purchase
money as under:-
Pre-Emption Treasury Challan Amount deposited
Case No.
12/91-92 No. 26 dated 8.7.91 Rs.10,000/- + Rs.1,000/-
13/91-92 No. 25 dated 8.7.91 Rs.10,000/- + Rs.1,000/-
14/91-92 No. 27 dated 8.7.91 Rs.10,000/- + Rs.1,000/-
Admittedly, as noted above, the appellant has deposited ten percent of the
purchase money (Annexure P2-series). Copy of the challan produced on
record shows that details like name, designation, address of the person who
deposited the money as well as the reason for such deposit are required to
be filled in by the concerned person; while other details are to be filled
in by the Treasury office. In the column to be filled in by ‘Account
Officer who would collect the amount’, it was stated as ‘0029 L.R.’ whereas
the prescribed head for the said deposits is stated to be ‘2029 Land
Revenue’. In the challan, above the column earmarked for the ‘Account
Officer who would collect the amount’ in the preceding row, it is
stipulated that it is ‘to be filled up by the officer or treasury’. The
High Court as well as the Board of Revenue held that money has been
deposited under the head '0029 L.R.' in the name of District Collector and
since the amount was not deposited under appropriate head, there was no
sufficient compliance of Rule 19 Form L.C. 13. The High Court observed
that since the money has been deposited in the name of the District
Collector, in case, the pre-emption applications are allowed, then the
transferee will have to face a lot of legal hassle in getting back the
entire money deposited by the pre-emptor and that it cannot be the
legislative intent. The High Court was of the view that there has been no
sufficient compliance of the requirement of Rule 19 and Form L.C. 13 of the
rules and in our view, the High Court erred in ignoring the details of
various columns in the challan.
13. In our view, the High Court was not right in holding that there
was no sufficient compliance of the requirement of Rule 19 and Form L.C.
13. There is no denying the fact that the appellant has deposited ten
percent of the purchase money as required under Section 16(3)(i) of the
Act. As against the column ‘Account Officer who would collect the
amount’, mentioning a wrong head cannot be a ground to dismiss the pre-
emption applications of the appellant at the threshold. The appellant
being a raiyat cannot be expected to know the correct head under which the
amount is to be deposited and a pedantic approach should not be adopted.
To non-suit the appellant on the ground of a technical objection that the
amount has not been deposited under the head '2029 Land Revenue' but
deposited under the head '0029 L.R.', would defeat the benevolent object of
Section 16(3) of the Act. Though the amount was deposited under a wrong
head, the fact remains that the amount has been deposited to the credit of
the treasury. The appellant ought to have been given an opportunity to
pursue his case of right to pre-emption, having regard to the fact that
being a raiyat, his legal literacy rate may be low. A party cannot be
denied right of adjudication of the matter on merits merely because of some
inadvertent mistake. In our view, the High Court was not justified in
viewing the treasury challan with a pedantic approach and was also not
right in affirming the order passed by the Board of Revenue.
14. In the result, the impugned order of the High Court is set aside
and the matter is remitted back to the Board of Revenue, Bihar to
reconsider the Revision Case Nos.174, 175 and 176 of 1996 afresh on merits
after affording sufficient opportunity of hearing to both the parties. The
appeals are accordingly allowed. We make it clear that we have not
expressed any opinion on the merits of the matter. The parties to bear
their respective costs.
…….…...................CJI.
(T.S. THAKUR)
……..…......................J.
(R. BANUMATHI)
………….....................J.
(UDAY UMESH LALIT)
New Delhi;
April 12, 2016
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