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BIBI SALMA KHATOON Versus STATE OF BIHAR AND ORS. LNIND 2001 SC 3585

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0% found this document useful (0 votes)
34 views3 pages

BIBI SALMA KHATOON Versus STATE OF BIHAR AND ORS. LNIND 2001 SC 3585

case law

Uploaded by

Krishna devine
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 3


CASE NO.:
Appeal (civil) 5645 of 2001

PETITIONER:
BIBI SALMA KHATOON

RESPONDENT:
STATE OF BIHAR AND ORS.

DATE OF JUDGMENT: 21/08/2001

BENCH:
SYED SHAH MOHAMMED QUADRI & R.P. SETHI

JUDGMENT:
JUDGMENT

2001 Supp(2) SCR 22

The following Order of the Court was delivered : Leave is granted.

The appellant, an unsuccessful applicant under Section 16(3) of the Bihar


Land Reforms Act, 1961 (for short ’the Act’) claiming right of preemption
in respect of the land in dispute, is in appeal against the judgment and
order dated 17th September. 1997 of the High Court of Judicature at Patna
in Letters Patent Appeal No. 263 of 1995.

The short question that arises for consideration in this appeal is whether
the application under Section 16(3) of the Act filed by the appellant, is
within limitation.

The land in dispute in this appeal was sold by respondent No. 6 in favour
of respondent No. 5 and the sale deed was registered on January 30, 1988.
The appellant filed the said application for transfer of the land in
dispute in his favour to enforce right of pre-emption before the Land
Reforms Deputy Collector, Khagaria claiming to be an adjoining raiyat, on
30th April, 1988. That application was allowed by the Assistant Collector
on 16th August, 1988. The case went through several vicissitudes and
ultimately, the appeal filed by the 5th respondent was allowed by the
Additional Collector, Khagaria on August 13, 1990. Dissatisfied with the
said order of the Collector the appellant approached the Board of Revenue
in revision but it was dismissed on January 31,1994. The appellant assailed
the correctness of the order dated January 31, 1994 before the High Court
in CWJC No. 3720 of 1994. The learned Single Judge of the High Court of
Patna dismissed the writ petition. He then agitated the matter in Letters
Patent Appeal which was dismissed on September 17, 1997. It is against that
order that the appellant is before us in this appeal. Mr. Abhay Prakash
Sahay, learned counsel appearing for the appellant, contends that the
application under Section 16(3) of the Act was filed within the period of
limitation and that the courts below as well as the High Court erred in
coming to the conclusion that the application was barred by limitation. Mr.
Prem Sunder Jha learned counsel appearing for the 5th respondent contends
that the High Court has rightly held that the application is beyond
limitation and that the other requirements of Section 16 have not been
complied with.

To appreciate the contention of the learned counsel, we shall refer to


Section 16(3) of the Act which is relevant for our purpose and which reads
as under :

"16(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
transferred, shall be entitled, within three months of the date of
registration of the documents of transfer, to make an application before
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3
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 (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 transferor 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)lf 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 (IV of 1908), shall be, so far as may be, followed." From a perusal of
clause (i) of sub-section (3) of Section 16 of the Act it is clear that
after April 19, 1962 if any land is transferred to any person other than a
co-sharer or a raiyat of adjoining land the provision confers a right in
favour of a co-sharer of the transferor or a raiyat of the adjoining land
to have that land transferred in his favour on the terms and conditions
mentioned in the sale deed subject to the following two conditions. The
first condition is that he shall make an application for the said relief in
the prescribed manner before the Collector within three months of the date
of registration of the document of transfer. The second condition is that
he shall deposit the purchase money together with a sum equal to ten per
cent thereof, in prescribed manner, within the said period of three months.
Clauses (ii) and (iii) prescribe the procedure to be followed on compliance
of requirements of clause (i).

Here we are concerned with compliance of requirement of making application


within the prescribed period of three months. The question arises, what is
meant by the word ’month’. Sub-section (34) of Section 4 of the Bihar and
Orissa General Clauses Act, 1917 defines the word ’month’ to mean a month
reckoned according to the British Calendar. This means Gregorian Calender-
January, February...........etc. Mr. Jha has drawn our attention to Section
11 of the said Act of 1917 to point out that when word ’from’ is used the
first in the series of days or any other period of time has to be excluded
and when the word ’to’ is used the last in a series of days or any other
period of time has to be included but in this case the word ’of is used so
that section will not apply. A perusal of Section 11 shows it is an aid for
drafting a provision rather than for interpreting the provision of the Act.
Be that as it may, since the Act does not expressly exclude Section 4 to 14
of the Limitation Act they apply to application under Section 16(3) of the
Act. Therefore, the date from which the limitation commences has to be
excluded in computing the period of limitation of three months. In
Halsbury’s Law of England, Fourth Edition, para 211 method of computation
of month is given as follows "para 211 : Calendar month running from
arbitrary date-when the period prescribed is a calendar month running from
any arbitrary date the period expires upon the day in the succeeding month
corresponding to the date upon which the period starts, save that, if the
period starts at the end of a calendar month which contains more days than
the next succeeding month, the period expires at the end of that succeeding
month.

If a period of one calendar month includes the last day of February there
must be 29 or 28 days, according as the year is or not a leap year."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3
Thus, computed the application filed by the appellant on April 30, 1988 is
within limitation-a period of three months of the date of the registered
sale deed dated January 30, 1988. In this view of the matter, we are unable
to sustain the order under challenge. We set aside the impugned order,
restore the second appeal and remit the case to High Court for disposal in
accordance with law.

The appeal is accordingly allowed with costs.

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