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Ram Pravesh Singh v. The Additional Member, Board Of Revenue And Others
Summary of Judicial Opinion — S.N. Jha, J.
Factual and Procedural Background
This is an application under Article 227 of the Constitution brought by the transferee arising from proceedings under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling area and Acquisition of Surplus Land) Act, 1961. The petitioner (transferee) succeeded before the first authority, the Deputy Collector, Land Reforms (D.C.L.R.), but lost before the Additional Collector and the Additional Member, Board of Revenue; the petitioner challenged the orders of the latter two authorities.
The transfer in question comprised seven plots. The party who sought pre-emption (the pre-emptor, who appears in the proceedings as respondent no. 4) was admitted to be both a co-sharer of the transferor and the adjoining raiyat of all seven plots. It was also admitted that the petitioner (transferee) is an adjoining raiyat of at least one of the transferred plots (Plot No. 101). The D.C.L.R. rejected the pre-emption claim on the ground that partial pre-emption is not permissible. The Additional Collector disagreed, and the Additional Member, Board of Revenue, agreed with the Additional Collector, advancing reasoning about possible partition and boundaries. Counsel for the pre-emptor did not support that boundary/partition logic, and the sale deed itself showed the petitioner's land adjoining Plot No. 101. The matter before the Court therefore focused on whether the fact that the transferee is adjoining raiyat of one (but not all) of several plots prevents the pre-emptor's claim under Section 16(3).
Legal Issues Presented
- Whether a pre-emptor can succeed in a claim under Section 16(3) of the Act when the transferee is an adjoining raiyat of at least one (but not all) of the several plots transferred by a single transaction.
- Whether partial pre-emption or apportionment of the purchase money is permissible where several plots are transferred in a single transaction.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ramachabila Singh v. Ramsagar Singh (1969 BLJR 203 : 1968 PLJR 279) | That when several plots are transferred in one transaction under one sale deed, the law does not permit splitting the land or apportioning the purchase money to permit partial pre-emption; a co-sharer cannot claim pre-emption if the transferee is an adjacent raiyat in respect of some of the plots. An exception exists only where the sale deed records two or more distinct transactions with separate consideration for each, allowing identification of separate transactions. | The Court relied on this decision as directly covering the issue in law and fact. It applied the rule that partial pre-emption and apportionment are impermissible because the seven plots formed a single transaction and the transferee was adjoining raiyat of at least one plot; hence the pre-emption claim could not be maintained and the D.C.L.R.'s rejection was to be upheld. |
| Ram Chandra v. Parsidh Narain Singh (1970 BLJR 1101 : AIR 1971 Patna 302 F.B.) | Cited as part of the consistent line of authority rejecting apportionment of purchase-money and partial pre-emption. | Used to show unanimity of precedent on the impermissibility of apportionment and partial pre-emption, supporting the Court's conclusion. |
| Sudama Devi v. Rajendra Singh (AIR 1973 Patna 199 : 1973 PLJR 534) | Supports the proposition that the law of pre-emption under Section 16(3) is weaker than customary pre-emption; the pre-emptor steps into the shoes of the vendee only upon conveyance/possession, and the scheme contemplates conveyance to the pre-emptor by the transferee rather than immediate proprietary rights. | The Court invoked this authority to explain the nature of the right under Section 16(3), emphasising that the pre-emptor must make a strong case and that the transferee can successfully resist a claim by pointing out deficiencies. |
| Bishan Singh v. Khazan Singh (AIR 1958 Supreme Court 338) | Describes general incidents of the right of pre-emption: the right is to the offer and to step into the vendee's shoes; it must subsist at the time the pre-emptor exercises the right; it is a right to acquire the whole property sold and can be defeated by substitution or by lawful acts of the vendor and vendee. | Quoted to underline the weak and substitutive nature of pre-emption rights and to demonstrate why a transferee's adjacency to any transferred plot can defeat the pre-emptor's claim. |
| Punit Rai v. Additional Member, Board of Revenue (1985 PLJR 910) | A Single Judge's view that purchaser should be adjoining raiyat of all the plots for a pre-emption claim to be defeated (i.e., suggesting a stricter test for transferee adjacency). | Distinguished and rejected by the Court because attention had not been drawn to the Bench decision in Ramachabila Singh; the Single Judge's conclusion was held not to be correct in view of the earlier Bench authority. |
Court's Reasoning and Analysis
The Court's analysis proceeded in these principal steps, relying only on the material and authorities cited in the opinion:
- Statutory framework: The Court began by repeating Section 16(3)'s scheme — a right of re-conveyance (pre-emption) is available to a co-sharer of the transferor or a raiyat holding adjoining land, but that right is exercisable only where the transferee is not himself a co-sharer or the adjoining raiyat in respect of the land transferred.
- Factual application of statutory test: It was undisputed that the pre-emptor was co-sharer of the transferor and an adjoining raiyat of all plots, but the transferee admitted holding land adjoining at least one transferred plot (Plot No. 101). The D.C.L.R. had rejected the pre-emption claim on the basis that partial pre-emption is not permissible; the Additional Collector and the Additional Member took a contrary view on the facts, but the Additional Member's factual logic was not supported by the pre-emptor's counsel and the sale deed itself showed the petitioner's adjacency.
- Reliance on binding Bench authority: The Court relied primarily upon the Bench decision in Ramachabila Singh which establishes that where several plots are transferred in one transaction, the law does not contemplate apportioning the consideration or permitting partial pre-emption; splitting the land or purchase-money is not authorised. The only exception is where the sale deed itself discloses separate transactions with separate consideration for each.
- Exception considered: The Court acknowledged the limited exception in Ramachabila Singh — where the single document in truth embodies distinct transactions with separately stated consideration — and held that only in such a case could pre-emption be allowed with respect to a distinct transaction without amounting to apportionment.
- Reinforcement from other authorities: The Court reinforced the conclusion by reference to Bishan Singh v. Khazan Singh (Supreme Court) which articulates the inherently weak and substitutive nature of the pre-emption right (right to take the entire bargain, not to a share), and to the Division Bench in Sudama Devi which describes the statutory pre-emption as weaker than customary pre-emption and contingent on conveyance/possession.
- Burden and practical outcome: Because the statutory right is weak, the pre-emptor must make a foolproof case while the transferee need only expose loopholes. Given that the seven plots formed one transaction and that the transferee was adjoining raiyat of Plot No. 101, the transferee's adjacency to at least one plot defeated the pre-emptor's entire claim unless separate transactions could be identified — which they could not. Accordingly, the partial pre-emption sought could not be allowed and the D.C.L.R.'s order rejecting the claim on that ground was correct.
- Treatment of conflicting Single Judge decision: The Court noted and declined to follow a Single Judge's decision in Punit Rai which suggested a different test, explaining that that decision had not considered the Bench authority in Ramachabila Singh.
Holding and Implications
HOLDING: The application under Article 227 is allowed. The Court quashed the orders of the Additional Collector and the Additional Member, Board of Revenue (the impugned Annexures 2 and 3), and upheld the D.C.L.R.'s rejection of the pre-emption claim. There will be no order as to costs.
Implications: The direct effect of the decision is that the pre-emptor's claim to re-transfer is rejected because the transfer of the seven plots constituted a single transaction and the transferee was an adjoining raiyat of at least one of the plots; partial pre-emption or apportionment of purchase-money is not permissible in such circumstances. The opinion rests on existing Bench and Supreme Court authorities and does not purport to create a new legal principle beyond those precedents; it applies settled law to the facts and resolves the dispute between the parties accordingly.
S.N Jha, J.:— This application under Article 227 of the Constitution by the transferee arises out of a proceeding under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling area and Acquisition of Surplus Land) Act, 1961 (in short ‘the Act’). The petitioner succeeded before the first authority, namely, the Deputy Collector, Land Reforms, but lost before the Additional Collector, and the Board of Revenue. He has challenged the orders of the said two authorities.
2. Section 16(3) of the Act provides that where any transfer of land is made to any person other than a co-sharer or raiyat of an adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred shall be entitled to claim re-transfer of the land to him on the same terms and conditions as contained in the deed. This right of re-conveyance in the legal parlance is known as right of pre-emption. The land transferred in the instant case comprises of seven plots. It is an admitted position that the applicant of the proceeding i.e the pre-emptor is co-sharer of the Transferor as well as adjoining raiyat of all the plots. A co-sharer or adjoining raiyat, as stated above, is entitled to claim pre-emption but the claim can be allowed, inter alia, only if the transferee himself is not either co-sharer or the adjoining raiyat. It is not in dispute in the instant case that the transferee i.e the petitioner is adjoining raiyat of at least one plot, viz., Plot no. 101. On this ground the claim of pre-emption was rejected by the D.C.L.R holding that there cannot be partial pre-emption. The Additional Collector held otherwise. The Additional Member, Board of Revenue, while agreeing with the Additional Collector, took the view that the half share in the plots having been sold by the transferors, in the absence of partition between the transferors and the pre-emptor, it may wall be that in the event of north-south division of Plot no. 101, the eastern portion may fall to the share of the transferor and in that case Plot no. 102 belonging to the petitioner situate on the western side of the plot transferred i.e Plot no. 101 will not touch it and, therefore, he will not be the adjoining raiyat of even one plot. Counsel for the pre-emptor-respondent no. 4, however, very fairly did not support that logic inasmuch as Plot no. 102 is shown on the western boundary of Plot no. 101 in the sale deed itself. It is, thus, an admitted position that the petitioner holds land adjacent to Plot no. 101, one of the plots transferred. It is well settled that a pre-emptor in order to succeed in his claim must prove that he is either co-sharer of the transferor or the adjoining raiyat of all the plots transferred. Where the transferee himself holds land adjacent to the plots no such claim is maintainable. The point for consideration is whether the transferee holding land adjacent to only one of the several plots and not all can resist the claim? The point is not res integra.
3. In Ramachabila Singh v. Ramsagar Singh (1969 BLJR 203 : 1968 PLJR 279) as many as 148 plots had been transferred. The transferees held land adjacent to a large number of them but not all. The question for consideration as framed in paragraph 8 of the judgment was whether when several plots are transferred by one sale deed the co-sharers in respect of all the plots can claim a right of pre-emption under Section 16(3) when the transferee is himself an adjacent raiyat in respect of some of the plots. The learned Chief Justice after quoting the provisions of Section 16(3)(1) observed:—
“……the clause refers to “land transferred” and “purchase money”. The expression “land” may include several plots; but the clause contemplates only one transaction of transfer. The “purchase money” also is intended to be one unit. A further sub-division of the land transferred, with a view to make an apportionment between a co-sharer on the one hand and an adjacent raiyat on the other, is not contemplated in that clause, nor does the clause give any indication as to the priority of right between these two persons or the method of apportioning between them. On the other hand, by saying that the application before the Collector should be “for the transfer of the land to him on the terms and conditions contained in the said deed”, the Legislature has clearly indicated that, when the right of pre-emption is granted to the applicant, the transferee will be directed to transfer the land to him on the same terms and conditions as were contained in the deed of transfer. It is now well settled that the amount of consideration money in a sale deed is a term of document……Thus, the Legislature did not authorise the Collector to split up the total consideration money and allow a right of pre-emption to the applicant on payment of a portion of the same in respect of some portions of the land transferred. The rules also do not contemplate any such division and apportionment.”
4. An exception to the above rule, however, was pointed out in the following words:—
“It is true that the mere fact that there is only one sale deed may not be decisive of the question as to whether there was one transaction of sale or two or more distinct transactions of sale, though all of them were embodied in the document. If, for instance, in the sale deed, two separate transactions of sale are mentioned, the consideration money for each of the transactions is also separately indicated, and there are other materials to hold that the sale was of a composite nature, there may be some justification for the view that the Collector may, on a fair construction of the document, allow pre-emption in respect of one transaction of sale, where other conditions are satisfied, and reject the right of pre-emption in respect of the other. Such an order will not amount to either splitting up of the land or apportionment of the purchase-money.”
5. After making the above observation the question was answered in the following words:—
“If the transferee happens to be the adjacent raiyat in respect of some of the plots, the co-sharer cannot claim any right of pre-emption under this section.”
6. There is complete unanimity on the point of impermissibility of apportionment of the purchase money and partial pre-emption. Reference may be made to the cases of Ram Chandra v. Parsidh Narain Singh (1970 BLJR 1101 : AIR 1971 Patna 302 F.B) vide paragraph 18 of the judgment and Sudama Devi v. Rajendra Singh (AIR 1973 Patna, 199 : 1973 PLJR 534) vide paragraph 8 of the judgment.
7. Although the point in issue is squarely covered by a decision in the case of Ramchabila Singh (supra) both in law as well as on facts, I would give another reason in respect of the conclusion. Dwelling upon the incidents of the right of preemption under the general law the Supreme Court in the famous case of Bishan Singh v. Khazan Singh (AIR 1958 Supreme Court 338) observed:—
“The plaintiff is bound to show not only that his right is as good as that of the vendee. Decided cases have recognised that this superior right must subsist at the time the pre-emptor exercises his right and that right is lost if by that time another person with equal or superior right has been substituted in place of the original vendee. Courts have not looked upon this right with great favour, presumably, for the reason that it operates as a clog on the right of the owner to alienate his property. The vendor and the vendee are, therefore, permitted to avoid accrual of the right of pre-emption by all lawful means. The vendee may defeat the right by selling the property to a rival pre-emptor with preferential or equal right. To summarise: (1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re-purchase i.e, the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place.”
8. So far as the nature of the right of preemption under Section 16(3) of the Act is concerned, a Division Bench of this Court in the case of Sudama Devi (supra) has observed:—
“But the law of pre-emption engrafted in Section 16(3) of the Act, to my mind, is of a weaker nature than the customary law of pre-emption. There, as pointed out by Mahmood, J., the pre-emptor in effect, steps into the shoes of the vendee. And, yet Subba Rao, J. has said in paragraph 11 that the vendee may defeat the right by selling the property to a rival pre-emptor with preferential or equal right. The scheme of the law engrafted in Section 16(3) of the Act is to permit the pre-emptor to have the property conveyed to him by the transferee. Until possession is delivered to the pre-emptor under clause (ii), he does not get any right in the property and until property is conveyed to him by a sale deed executed in pursuance of clause (iii), he does not become the owner of the property.”
9. Having regard to the nature of the right of pre-emption under the Act, the pre-emptor in order to succeed must make out a foolproof case. The transferee need only point out the loopholes. They do not stand on the same footing. The pre-emptor must show that he is either the co-sharer or the adjoining raiyat of all the plots, where the land comprises of more than one plot, which the transferee is not. The transferee, on the other hand, may successfully resist the claim if he is able to show that he is adjoining raiyat of some of the plots, even one of them, and he cannot, therefore, be made to reconvey those plots except where the transfer of other plots can be identified as separate transaction. In that case, partial pre-emption not being permissible, the claim of pre-emption as a whole will have to be rejected.
10. The view of a learned Single Judge in Punit Rai v. Additional Member, Board of Revenue (1985 PLJR 910) holding that the purchaser should as well be adjoining raiyat of all the plots, which was relied upon by the counsel for the pre-emptor, does not appear to be correct. It appears that the attention of the learned Judge was not drawn to the Bench decision in the case of Ramchabila Singh (supra). In the instant case the transfer of all the seven plots forms one transaction. The petitioner admittedly holds land adjacent to one of the plots. The claim of pre-emption, therefore, is not maintainable as against the said plot. Since the transfer of that plot cannot be separated, the claim of the pre-emptor even though otherwise maintainable against the other six plots has to be rejected as a whole because there cannot be partial pre-emption. The order of the D.C.L.R rejecting the claim for pre-emption on that very ground has, therefore, to be upheld.
11. In the result, this application is allowed. The orders of the Additional Collector and the Additional Member, Board of Revenue, as contained in Annexures 2 and 3 are quashed. There will be no order as to cost.
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