Patna High Court
Shailendra Kumar Jaiswal @ Vinod Kumar vs Binita Ojha on 13 March, 2026
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.16 of 2025
In
Civil Writ Jurisdiction Case No.18468 of 2021
======================================================
Shailendra Kumar Jaiswal @ Vinod Kumar Son of Arjun Sah Resident of
Village-Didkhili, P.S. Durgawati, P.O. Akhori, District-Kaimur at Bhabhua.
... ... Appellant/s
Versus
1. Binita Ojha Wife of Yogesh Kumar Ojha Resident of Buxar Town, P.O., P.S.
and District-Buxar.
2. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
3. The Principal Secretary, Revenue and Land Reforms Department,
Government of Bihar, Patna.
4. The Bihar Land Tribunal, Patna.
5. The Commissioner, Patna.
6. The Collector, Kaimur at Bhabhua.
7. The Deputy Collector, Land Reforms, Mohania.
8. Most. Laxmi Jaiwal, wife of Late Abhya Narayan Jaiswal, resident of
Village Didkhili, P.S. Durgawati, P.O. Akhori, District-Kaimur at Bhabhua.
9. Priasi, minor daughter of Late Abha Narayan Jaiswal, Resident of Village
Didkhili, P.S. Durgawati, P.O. Akhori, District-Kaimur at Bhabhua.
10. Rajshree, Minor Daughter of Late Abha Narayan Jaiswal Represented
through their Mother and Natural Guardian Most. Laxmi Jaiswal. Resident
of Village-Didkhili, P.S. Durgawati, P.O. Akhori, District-Kaimur at
Bhabhua.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Parth Gaurav, Adv.
Mr. Divya Prakash, Adv.
Mr. Kumar Saurav, Adv.
Mr. A K Pandey, Adv.
Mr. Rahul Kumar, Adv.
For the Respondent/s : Mr. Akash Raj, AAG-12
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE HARISH KUMAR)
Date : 13-03-2026
Learned Advocate for the respective parties are
present.
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2. The challenge in the present intra-court appeal is
made to an order of the learned Single Judge dated 11.11.2024
passed in CWJC No. 18468 of 2021, wherein the learned Court
after hearing the parties has been pleased to set-aside the order
dated 06.08.2021 passed in BLT Case No. 547 of 2019.
3. The brief facts which led to the filing of the present
Letters Patent Appeal, as emerged from the records are that the
appellant-respondent no. 7 claiming to be a pre-emptor had filed
petition under Section 16(3) of Bihar Land Reforms (Fixation of
Ceiling Area and Acquisition of Surplus Land) Act, 1961
(hereinafter referred to as, "Ceiling Act, 1961") before the
Deputy Collector, Land Reforms, Mohania. The appellant-
respondent no. 7 asserted his right of pre-emption to the sole
land of Khata No. 318, Plot No. 2498 having an area of 0.45
acres situated at Mauza Awahariya purchased by the writ
petitioner-respondent no. 1 by a registered sale deed dated
24.11.2015
from respondent no. 8 in the writ petition.
4. It is stated that the father of the pre-emptor namely,
Arjun Sah after partition of family through Partition Suit No.
495 of 2012 executed a registered sale deed with respect to
some adjacent land, in question, and in the aforesaid premise,
the respondent no. 7-appellant herein prayed that the pre-
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emption be allowed in his favour, on account of he being
adjoining raiyat. The writ petitioner appeared and filed her
written objection that no sale deed was ever executed in favour
of the pre-emptor or his father, hence he is not an adjoining
raiyat. Moreover, the land, in question, is of residential in
nature, hence Ceiling Act, 1961 will not be applicable.
5. The learned DCLR having considered the
submissions of the parties vide its order dated 19.04.2017
allowed the pre-emption application in favour of the pre-
emptor-appellant herein. Aggrieved, the writ petitioner preferred
Pre-emption Appeal No. 02 of 2017-18. However, the said
appeal was dismissed by the learned Collector vide an order
dated 13.07.2018 against which the petitioner filed Pre-emption
Revision Case No. 136 of 2018 before the learned Divisional
Commissioner, Patna.
6. In the meanwhile, in pursuance of the order dated
13.07.2018 passed by the Collector in Pre-emption Appeal No.
02 of 2017-18, the sale deed was executed in favour of the
respondent no. 7-appellant through process of the Court on
08.09.2018. While the Pre-emption Revision Case No. 136 of
2018 was pending consideration, the State Legislature enacted
The Bihar Land Reforms (Fixation of Ceiling Area and
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Acquisition of Surplus Land) (Amendment) Act, 2019,
(hereinafter referred to as, “Amendment Act, 2019“). By the
Amendment Act, 2019, sub-Section 3 of Section 16 of the
Ceiling Act, 1961 which gave the right of pre-emption was
repealed and sub-Section 16(4)(i) and (ii) were incorporated,
which provided that all cases or proceedings, pending before
any of the authorities/tribunal/Court shall be deemed to have
abated and the purchase money together with the sum equal to
10 % shall be refunded to the depositor without interest.
7. In light of the amendment, as noted hereinabove,
the learned Divisional Commissioner, Patna vide its order dated
17.05.2019/07.06.2019, dropped the revision case as having
abated in pursuance of Amendment Act, 2019 and ordered the
pre-emptor to receive consideration amount along with 10 % of
interest from DCLR, Mohania. The pre-emptor-appellant being
aggrieved by the order of the Divisional Commissioner, Patna
filed BLT Case No. 547 of 2019 and finally it came to be
allowed by an order dated 06.08.2021 on the ground that only
proceeding of revision case before the Commissioner stood
abated and not the entire case.
8. The learned Tribunal further held that only a part of
the order of the Divisional Commissioner was bad whereby he
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directed the pre-emptor to receive the purchased money together
with 10 % of interest deposited with the DCLR. Since the sale
deed has already been executed upon and the mutation has also
been done in favour of the pre-emptor vide Mutation Case No.
629 of R27 of 2018-19 and now the pre-emptor is in peaceful
possession over the land, in question. Hence, the aforesaid
amount shall be deemed to be consideration money through
process of the Court in favour of the pre-emptor.
9. The writ petitioner while assailing the order passed
by the learned Bihar Land Tribunal in BLT Case No. 547 of
2019 has inter alia submitted that since Section 16(3) of the
Ceiling Act, 1961 had already been repealed with effect from
25.02.2019 during the pendency of the revision case before the
Divisional Commissioner preferred against the order of the
DCLR and the Collector filed by the writ petitioner and thus, on
account of such repeal of such provision, all pending proceeding
stood abated and, as such, the case in between the writ petitioner
and the pre-emptor-appellant, pending adjudication also stood
abated. Hence, the BLT while adjudicating the case completely
missed out the said issue and erroneously held that it does not
find any illegality in the first part of the order of the Divisional
Commissioner, Patna but second part of the order passed by the
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learned Divisional Commissioner, Patna to refund the purchase
money of the pre-emptor without any interest is not in
accordance with law. It is further submitted that the Divisional
Commissioner, Patna while passing the order in revision was
conscious of the fact that case in between the parties pending
adjudication before him had abated, in view of Section 16(3) of
the Ceiling Act, 1961. Hence, in absence of adjudication, the
pre-emptor was entitled for refund.
10. The aforenoted contentions led by the writ
petitioner was refuted by the respondent no. 7 by filing an
affidavit before the learned Single Judge stating specifically
therein that the consideration amount along with 10 % deposited
by the pre-emptor/respondent no. 7 has already been withdrawn
in pursuant to execution of sale deed through Court in his favour
and this fact clearly makes the writ petition infructuous.
11. The learned Single Judge hearing the parties found
substance in the submissions of the writ petitioner that on what
basis, the DCLR permitted the petitioner to withdraw the said
amount when the case was pending adjudication before this
Court against the order of the BLT and the Commissioner had
specifically directed the pre-emptor to receive the deposited
consideration amount along with 10 % interest from DCLR,
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Mohania. The Court further directed that an illegality has been
committed by the DCLR and if any illegality has been
committed by an authority, the same cannot be perpetuated by
this Court and accordingly, set-aside the order dated 06.08.2021
passed in BLT Case No. 547 of 2019.
12. Mr. Parth Gaurav, learned Advocate for the
appellant while assailing the order/judgment of the learned
Single Judge has submitted that the learned Court failed to
appreciate that sale deed in favour of the pre-emptor/present
appellant was already executed on 08.09.2018, much before
coming into force of Repeal Act on 25.02.2019, therefore once
the sale deed was executed, then the money deposited by the
pre-emptor before DCLR at the time of filing of pre-emption
application becomes the consideration amount, which has been
received by the purchaser i.e. the writ petitioner-respondent no.
1 herein. Despite the aforesaid fact brought to the knowledge of
the learned Single Judge, the impugned order came to be passed,
erroneously.
13. The writ petitioner-respondent no. 1 herein
entered his appearance and filed a supplementary affidavit
bringing on record the copy of the order-sheet of Pre-emption
Case No. 6 of 2015-16 and also the affidavit duly sworn by the
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writ petitioner-respondent no. 1 with a categorical averment that
in order to put an end to the long pending litigation between the
parties, she has withdrawn the deposited amount (consideration
money) kept before the DCLR, in pursuant to the execution of
sale deed through Court in favour of the petitioner.
14. We have heard the learned Advocate for the
respective parties and perused the order/judgment under
challenge. Before proceeding further, it would be pertinent to
take note of the amendment brought in the Ceiling Act, 1961.
By the Amendment Act, 2019 amendments were carried out in
Section 16 of the Ceiling Act, 1961. It would be worth
benefiting to quote Section 16(4)(i) and (ii) of the Amendment
Act, 2019 which reads as follows:-
“16(4)(i) After the repeal of
sub-section (3) of Section 16 of this Act,
all cases or proceedings pending before
the State Government, the Board of
Revenue, the Bihar Land Tribunal, the
Divisional Commissioner, the Collector,
the Additional Collector, the Deputy
Collector Land Reforms or in any other
Court, shall be deemed to be abated.
(ii) Pursuant to the repeal of
sub-section (3) of Section 16 of this Act,
any purchase money together with a sum
equal to 10% thereof, already legally
deposited shall be refunded, without any
interest, to the depositor.”
15. On bare perusal of the aforenoted prescriptions, it
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appears that Section 16(3) which initially gave the right of pre-
emption, was repealed and Section 16(4) further provided that
all cases of proceedings after repeal of Section 16(3) shall be
deemed to be abated and the purchase money together with the
sum equal to 10 % shall be deposited with the depositor.
16. The constitutional validity of the Amendment Act,
2016 as well as the Amendment Act, 2019 along with the orders
passed by different authorities, all of which arise out of
applications for pre-emption filed under section 16(3) of the
Ceiling Act, 1961 was questioned before the learned Division
Bench of this Court in Sudhakar Jha Vs. The State of Bihar
and Ors. and other analogous cases, reported in 2024 (3) PLJR
409. The learned Division Bench painstakingly taking note of
the relevant prescriptions of the amendment act and the various
decisions of the Hon’ble Apex Court which enunciated the
grounds on which the law could be invalidated has found no
merit in the challenge made in the batch of the cases, raising
question of constitutional validity of two amendment acts and
further inter alia observed as follows:
“49. Both the amendment Acts
of 2016 and 2019 having been held to be
Constitutionally valid, the question which
would arise is as to how would the
individual cases, arising out of an
application of right to pre-emption under
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pending adjudication at different stages
are to be decided. The right of preemption
which arose from section 16(3) of the Act
having been repealed by the Amendment
Act, 2019, it may be stated that clause
2(2) of the Amendment Act, 2019 provides
that after repeal of section 16(3) of the
Act, all cases or proceedings pending
before the State Government, Board of
Revenue, the Bihar Land Tribunal, the
Divisional Commissioner, the Collector,
the Additional Collector, the Deputy
Collector Land Reforms or in any other
Court shall be deemed to be abated and
pursuant to the repeal any purchase
money together with the sum equal to
10% thereof shall be refunded to the
depositor, without any interest.”
17. After having careful consideration of the
amendment brought through the Amendment Act, 2019 as also
the decisions rendered by the learned Division Bench referred
hereinabove, it is manifest that in view of the repeal of Section
16(3), what would be deemed to be abated is/are the cases or
proceeding pending before the State Government, the Board of
Revenue, the Bihar Land Tribunal, the Divisional
Commissioner, the Collector, the Additional Collector, the
Deputy Collector Land Reforms or in any other Court.
However, such repeal does not affect the proceedings, which
have already been concluded.
18. In the case at hand, undisputedly the sale deed was
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executed in favour of the respondent no. 7-appellant herein on
08.09.2018 itself, in pursuance of the order dated 13.07.2018
passed by the Collector in Pre-emption Appeal No. 2 of 2017-18
and the consideration amount along with 10 % had already been
deposited before the Court of learned DCLR, Mohania.
19. Now what was left to be done by the writ
petitioner-respondent no. 1 herein is to receive the consideration
amount. Once that consideration amount has already been
withdrawn and received by the writ petitioner-respondent no. 1
without any objection, in pursuant to the execution of the sale
deed through Court in favour of the pre-emptor and to this
effect, an affidavit has been filed before the learned Single
Judge as well as this Court also, there is no lis required to be
adjudicated.
20. The learned Single Judge though has taken note of
the specific fact that the sale deed had already been executed
much prior to the coming into force of the Amendment Act,
2019 and further in pursuance of the order of the learned
Collector, the writ petitioner has received the consideration
amount. There was no reason or occasion to interfere in the
order of the Bihar Land Tribunal. We must note herein the
settled principle that technicalities or procedural requirement
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must not defeat substantive justice, which is the cornerstone of
Indian jurisprudence, the law should be a tool for achieving
fairness rather than a mechanism for creating insurmountable
obstacle.
21. In view of the aforesaid facts, this Court finds
merit in the present appeal and accordingly, the order/judgment
dated 11.11.2024 passed by the learned Single Judge is hereby
set-aside.
22. Since the writ petitioner-respondent no. 1 has
withdrawn the consideration amount without any objection, in
pursuance of execution of the sale deed through Court in his
favour, the dispute between the parties must be given a quietus.
23. Accordingly, the present Letters Patent Appeal
stands allowed.
(Harish Kumar, J)
Sangam Kumar Sahoo, CJ : I agree
(Sangam Kumar Sahoo, CJ)
shivank/-
AFR/NAFR NAFR CAV DATE 23.02.2026 Uploading Date 13.03.2026 Transmission Date NA
