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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.

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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  

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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  

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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.

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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  

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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  

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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  

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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.’  

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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  

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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  

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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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