JUDGMENT R.L. Narasimham, C.J.

1. This is an application under Article 226 of the Constitution to quash the order of the Commissioner of Bhagalpur dated the 4th December, 1965. (Annexure C). In Purnea Miscellaneous Appeal No. 51 of 1965-66, upholding the order of the Collector of Purnea, dated the 29th July 1966 (Annexure B). In an application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1962. (Bihar Act 12 of 1962) (hereinafter referred to as the Act), and dismissing the appeal of the petitioner.

2. On the 19th December, 1963, the petitioner purchased 3 acres of land appertaining to R.S. plot No. 1363/3367 in village Satkodaria in the district of Purnea from one Sant Lal Singh, opposite party No. 2. On the 9th March, 1964, opposite party No. 1 Bhubneshwari Singh, filed an application under Section 16(3) of the Act, claiming a right of pre-emption on the ground that he was the raiyat of the plot adjacent to the aforesaid plot and as such was entitled to pre-emption. The petitioner while not challenging the fact that Bhubneshwari Singh was a raiyat of the adjoining land, nevertheless urged that the petitioner was also in possession of plot No. 1485 which was also a piece of land adjoining R.S. plot No. 1363/3367 and that he had purchased the same from one Dwarka Lal Singh by another sale deed dated the 23rd April 1965. The learned Collector, however, ignored this transaction of sale on the sole ground that it took place after the filing of the petition under Section 16(3) of the Act by Bhuneshwari Singh. He held that the petitioner was neither a co-sharer nor the owner of the adjacent land and hence could not defeat the claim of Bhuneshwari Singh for preemption. His order was upheld on appeal by the learned Commissioner, who also held that the purchase by the petitioner of plot No. 1485 on the 23rd April, 1965 after the institution of the present proceeding, should not be taken into consideration in deciding whether the petitioner was the owner of an adjacent plot.

3. One of the important grounds taken in this writ petition was that the provision of Section 16(3) of the Act was unconstitutional as offending some of the fundamental rights. This argument is, however, not tenable, because the Act was one of the statutes included in the Ninth Schedule of the Constitution (see item 26). Hence by virtue of Article 31(B) of the constitution the provisions of the Act will survive even if they are inconsistent with any of the fundamental rights conferred by the Constitution. The recent judgment of the Supreme Court prospectively overruling any amendment made to the fundamental rights cannot help the petitioner because they did not give retrospective effect to their decision.

4. Mr. Misra for the petitioner then raised the following two contentions in support of the petition -

(1) The petitioner was a raiyat of plot No. 1485 long before the alleged purchase from Dwarka Lal Singh on the 23rd April, 1965 and hence opposite party No. 1. Bhubneshwari Singh, cannot claim a right of pre-emption in preference to the petitioner.

(2) Even if it be assumed that the petitioner became a raiyat of plot No. 1485 only on the 23rd April, 1965, nevertheless the Court should have taken into consideration events which happened between the date of the filing of the application by Bhubneshwari Singh and the date on which the order was passed by the Collector, namely, the 29th July, 1965.

5. Sub-section (3) of Section 16 of the Act is as follows -

(3)(1) 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 transfer 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 (1) 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 (1)

(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 registered 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 or Civil Procedure, 1908 (V of 1908), shall be, so far as may be, followed.

It will be noticed that the right of pre-emption can be claimed only by (1) co-sharer of the transferor, or (2) a raiyat of the land adjoining the land transferred. Moreover, the permanent condition precedent to the claim of this right is that the transfer itself must have been made to a person other than a co-sharer or a raiyat of adjoining land. Hence, if the transfer is made to a person who is either a co-sharer of the plot transferred or raiyat of an adjoining land, there will be no right of pre-emption in favour of any other co-sharer or any other raiyat of the adjacent land. Moreover, the statute requires that the right of preemption should be claimed with- three months from the date of registration of the document of transfer. If this period is exceeded, the right to claim pre-eruption is also extinguished. Clauses (i) and (ii) of Sub-section (3) further say that, along with an application for pre-emption, the entire purchase money, together with a sum equal to ten percent thereof, shall be deposited by the person claiming the rights, and on such deposit he is entitled to be put immediately in possession of the land, even though the application may still be pending. The proviso to Clause (ii), however, says that if the application is eventually rejected, the person put in possession shall be evicted from the land and possession restored to the original transferee, who, in addition to such restoration, is entitled to be paid ten per cent of the purchase money, resumably by way of compensation for having been kept out of possession during the pendency of the application.

6. The scheme of the Section seems clear. It is primarily intended to prevent undue fragmentation of holding and to facilitate consolidation with a view to the utilisation of the land in the most advantageous manner. This seems to be the reason why the extraordinary provision of allowing the applicant to be put in possession during the pendency of the application is permitted. Apparently the legislative contemplated that considerable time may elapse between the date of the filing of the application and the date on which the orders are passed by the revenue authorities, including the orders of appellate and superior courts, and did not want that consolidation and utilisation of the land in the best manner should be postponed so long. But at the same time, with a view to provide for proper restitution to the transferee if the application is eventually rejected, solatium by way of ten per cent of the purchase money was directed to be paid to him. The Act is however, silent as to priority to be given where the right of pre-emption is claimed (1) by a co-sharer of the land transferred, and (2) by raiyat of the adjacent land. As between these two claimants the law is silent as to who should be preferred. Similarly the Act does not give any indication as to who should be preferred where rival claim are made by two raiyats whose lands both adjoin the land transferred. The word "adjoining" is somewhat ambiguous. Several plots may adjoin the plot transferred in all the four directions. If one of the applicants for pre-emption holds land adjacent east of the plot transferred and another applicant for preemption holds land adjacent west of the land transferred, a difficult question will arise as to which of the two should be preferred by the revenue officer. These are unsatisfactory features in the Act which may require consideration by the legislature in due course.

7. It is not denied by opposite party No. 1 that R.S. plot No. 1485 is adjacent to the transferred plot 1363/3367. Hence, if the petition can show that he was the owner of plot No. 1485 all along, as allowed by him, he can justifiably claim that Bhubneshwari Singh being the owner of another adjacent plot should not be given preference over the petitioner. But the finding of the two courts are that the petitioner became owner of plot No. 3485 only on the 23rd April, 1965, on which date he obtained kebala from Dwarka Lal Singh. Mr. Misra, however, urged that the title of the petitioner to plot No. 1485 existed from before, that the sale deed from Dwarka Lal Singh was taken by way of abundant caution in view of the entry of his name in the Survey record or rights and that title and possession in fact remained with the petitioner all along. This is an ingenious argument which is leased essentially on a question of fact which should have been properly agitated before the revenue courts and evidence led to establish the same. The petitioner's objection petition before the Collector has been filed (Annexure A) which shows that the petitioner's claim to plot No. 1485 was not put forward in such a clear and unambiguous manner as urged here by Mr. Misra, Paragraph 3 of that petition is as follows:

That the said devised land (plot No. 1485) formerly belonged to the petitioner and he was in possession of the same and entry in the recent survey (some sentence appears to have been omitted in the copy supplied to us) your petitioner's vendor Dwarka Lal Singh and as such other complication and the petitioner being a co-sharer purchased the same and continued in possession as before.

It was nowhere alleged in this petition explicitly that both title and possession of plot No. 1485 remained with the petitioner long before the execution of a sale deed in his favour by Dwarka Lal Singh on the 23rd April, 1965. On the other hand, the orders passed by the Collector and by the Commissioner on appeal show that the arguments before them proceeded on the assumption that title to plot No. 1485 accrued to the petitioner only on the date of the kebala which he took from Dwarka Lal Singh on the 23rd April, 1965 Before us also an affidavit was filed on behalf of op-posit party No. 1 to the effect that plot No. 1485 was allotted to the exclusive share of Dwarka Lal Singh by a previous partitions, that he was in possession thereof, that it was rightly recorded in his exclusive name in the Revisional Survey and that he was the full owner of the same until its sale to the petitioner. Though a reply was filed to this affidavit on behalf of the petitioner, this statement was not clearly denied. This Court, in exercise of its jurisdiction under Article 226, cannot discuss a new question of fact raised for the first time, namely, whether title or possession to plot No. 1485 remained with the petitioner even prior to the sale of the plot to him on the 23rd April, 1965. We must hold, on the case as put forward in the lower courts, that the petitioner became owner of that plot only on the 23rd April, 1965, and not before.

8. This leads to the next question, namely, whether an application for pre-emption by an applicant who had a right to claim the same on the date of presentation can be defeated if it is shown that on the date on which the application came for hearing his rival had also become the owner of an adjacent plot by a subsequent purchase. As already pointed out, opposite party No. 1, Bhubneshwari Singh, filed his application claiming preemption on the 9th March, 1964. On that date the petitioner was not a raiyat holding land adjacent to the plot transferred. He became such a raiyat only on the 23rd April, 1965. It is true, as pointed out by Mr. Misra, that though ordinarily the right of a party is decided on the basis of the facts as they stood on the date of the application, nevertheless there are special occasions where events which happen subsequent thereto are also taken due notice of. But, in my opinion, in view of the clear provisions of Clauses (i) and (ii) of Sub-section (3) of Section 16 of the Act, the right of an applicant for preemption cannot be defeated by another person who also became a raiyat of the adjacent land after the expiry of the period of three months from the date of registration of the document of transfer. The reason is that after the expiry of the said date and right of pre-emption itself is lost, Hence, if a person becomes the raiyat of a land adjoining the land transferred after the expiry of the period of three months from the date of the transfer, he gets no right under Clause (i) of Sub-section 5 of Section 16. Since he does not get any such right, he cannot obviously defeat a right which has accrued to another person by virtue of the said provision, The petitioner's objection must, therefore, fail. On the facts of this case it is unnecessary to consider whether the right of pre-emption can be defeated if some other person becomes a raiyat of an adjacent land within the period of three months from the date of the transfer but after the date of the filing of application by another claimant of that right, This question is left open for consideration on a, further occasion, if necessary. I may, however, indicate that in view of the clear provisions of Clause (ii) of Sub-section (3) of Section 16, which require the Court to give possession immediately to the person claiming the right of pre-emption without waiting for the disposal of his claim, and the further provision which requires payment of ten per cent of solacium to the transferee in the event of the eventual rejection of the claim, the intention of the Legislature seems to be, that, on the very date of the transfer, the co-sharer of the land transferred or the raiyat of the adjacent land gets the right to claim pre-emption. That right cannot be defeated by any subsequent event.

9. For these reasons, in any view of the case the petitioner's rival claim of pre-emption in respect of the plot transferred, with a view to defeat the claim of opposite party No. 1, must be held to be quite untenable. The petition is dismissed with costs. Hearing fee Rs. 100/- payable to opposite party No. 1, only.

U.N. Sinha, J.

10. I agree.