IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.12211 OF 2003 1. MAHABEER SINGH, SON OF LATE MOHAN SINGH, 2. HARI NATH SINGH, 3. NARESH SINGH, 4. KEDAR NATH SINGH, ALL SONS OF LATE RAGHUBEER SINGH, VILLAGE CHAUHATTA (CHHIPI TOLA), PS HAJIPUR, DISTRICT VAISHALI …………………………………………….….. PETITIONERS VERSUS 1. THE STATE OF BIHAR, 2. THE MEMBER, BOARD OF REVENUE, BIHAR, PATNA. 3. THE ADDITIONAL COLLECTOR, VAISHALI. 4. THE DEPUTY COLLECTOR LAND REFORMS, HAJIPUR, VAISHALI. 5. IMAM BUKHASH, SON OF LATE ABDUL HAKEEM ANSARI, 6. AFZAL ALAM, 7. KHURSHEED ALAM, 8. MAQUSOOD ALAM, 9. MANSOOR ALAM, 10. MANJOOR ALAM, 11. SHAFIQUE ALAM, SHAHNAWAZ ALAM, ALL OF MOHALLA CHAUHATTA (CHHIPI TOLA), PS HAJIPUR, DIST. VAISHALI. 12. DR. SHAILENDRA KUMAR CHAUBEY, SON OF LATE JAGAT NARAIN CHOUBEY, 13. RAJENDRA KUMAR CHATURVEDI, 14. HARENDRA KUMAR CHATURVEDI, BOTH SONS OF SHRI NARAIN CHATURVEDI, MOHALLA YUSUFPUR, CHAUHATTA, PS HAJIPUR, DISTRICT VAISHALI ………. RESPONDENTS. WITH CWJC NO. 12212 OF 2003 1. MAHABEER SINGH, SON OF LATE MOHAN SINGH, 2. HARI NATH SINGH, 3. NARESH SINGH, 4. KEDAR NATH SINGH, ALL SONS OF LATE RAGHUBEER SINGH, VILLAGE CHAUHATTA (CHHIPI TOLA), PS HAJIPUR, DISTRICT VAISHALI …………………………………………………………….. ……….. PETITIONERS VERSUS 1. THE STATE OF BIHAR, 2. THE MEMBER, BOARD OF REVENUE, BIHAR, PATNA. 3. THE ADDITIONAL COLLECTOR, VAISHALI. 4. THE DEPUTY COLLECTOR LAND REFORMS, HAJIPUR, DIST. VAISHALI. 5. MD. RIZWAN ALAM, SON OF IMAM BUX ANSARI, 6. IMAM BUKHASH ANSARI, SON OF LATE ABDUL HAKEEM ANSARI, MOHALLA CHAUHATTA (CHHIPI TOLA), PS HAJIPUR, DIST. VAISHALI. 7. DR. SHAILENDRA KUMAR CHOUBEY, SON OF LATE JAGAT NARAIN CHOUBEY, 8. RAJENDRA KUMAR CHATURVEDI, 9. HARENDRA KUMAR CHATURVEDI, BOTH SONS OF SHRI NARAYAN CHATURVEDI ……………………………………………… RESPONDENTS. WITH 2 CWJC NO. 12213 OF 2003 1. MAHABEER SINGH, SON OF LATE MOHAN SINGH, 2. HARI NATH SINGH, 3. NARESH SINGH, 4. KEDAR NATH SINGH, ALL SONS OF LATE RAGHUBEER SINGH, VILLAGE CHAUHATTA (CHHIPI TOLA), PS HAJIPUR, DISTRICT VAISHALI ……………………………………………………..………….. PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. THE MEMBER, BOARD OF REVENUE, BIHAR, PATNA. 3. THE ADDITIONAL COLLECTOR, VAISHALI. 4. THE DEPUTY COLLECTOR LAND REFORMS, VAISHALI, DIST. HAJIPUR. 5. AFTAB ALAM, SON LF KHURSHEED ALAM, 6. IMAM BUX ANSARI, SON OF LATE ABDUL HAKEEM ANSARI, BOTH OF MOHALLA CHAUHATTA (CHHIPI TOLA), PS HAJIPUR, DIST. VAISHALI. 7. DR. SHAILENDRA KUMAR CHOUBEY, SON OF LATE JAGAT NARAIN CHOUBEY, 8. RAJENDRA CHATURVEDI, 9. HARENDRA KUMAR CHATURVEDI, BOTH SONS OF SRI NARAIN CHATURVEDI, MOHALLA YUSUFPUR, CHAUHATTA, PS HAJIPUR, DIST. VAISHALI …………………………………………………… RESPONDENTS. WITH CWJC NO.12214 OF 2003 1. MAHABEER SINGH, SON OF LATE MOHAN SINGH, 2. HARI NATH SINGH, 3. NARESH SINGH, 4. KEDAR NATH SINGH, ALL SONS OF LATE RAGHUBEER SINGH, VILLAGE CHAUHATTA (CHHIPI TOLA), PS HAJIPUR, DISTRICT VAISHALI ……………………………………………………………….. PETITIONERS VERSUS 1. THE STATE OF BIHAR, 2. THE MEMBER, BOARD OF REVENUE, BIHAR, PATNA. 3. THE ADDL. COLLECTOR, VAISHALI. 4. THE DEPUTY COLLECTOR LAND REFORMS, HAJIPUR. 5. MD. KHURSHEED ALAM, SON OF IMAM BUX ANSARI, 6. IMAM BUX ANSARI, SON OF LATE ABDUL HAKEEM ANSARI, BOTH OF MOHALLA CHAUHATTA, (CHHIPI TOLA), PS HAJIPUR, DIST. VAISHALI. 7. DR. SHAILENDRA KUMAR CHOUBEY, SON OF LATE JAGAT NARAIN CHOUBEY, 8. RAJENDRA KUMAR CHATURVEDI, 9. HARENDRA KUMAR CHATURVEDI, BOTH SONS OF SHRI NARAIN CHATURVEDI, RESIDENTS OF YUSUFPUR, CHAUHATTA, PS HAJIPUR, DISTRICT VAISHALI …………………………………………………………………..RESPONDENTS. WITH CWJC NO. 12215 OF 2003 1. MAHABEER SINGH, SON OF LATE MOHAN SINGH, 2. HARI NATH SINGH, 3. NARESH SINGH, 3 4. KEDAR NATH SINGH, ALL SONS OF LATE RAGHUBEER SINGH, VILLAGE CHAUHATTA (CHHIPI TOLA), PS HAJIPUR, DISTRICT VAISHALI …………………………………………………... PETITIONERS VERSUS 1. THE STATE OF BIHAR, 2. THE MEMBER, BOARD OF REVENUE, BIHAR, PATNA. 3. THE ADDL. COLLECTOR, VAISHALI. 4. THE DEPUTY COLLECTOR LAND REFORMS, HAJIPUR, VAISHALI. 5. IMAM BUX ANSARI, SON OF LATE ABDUL HAKEEM ANSARI, MOHALLA CHAUHATTA, (CHHIP TOLA), PS HAJIPUR, DIST. VAISHALI. 6. DR. SHAILENDRA KUMAR CHOUBEY, SON OF LATE JAGAT NARAIN CHOUBEY, 7. RAJENDRA KUMAR CHATURVEDI, 8. HARENDRA KUMAR CHATURVEDI, BOTH SONS OF SRI NARAIN CHATURVEDI, RESIDENTS OF YUSUFPUR, CHAUHATTA, PS HAJIPUR, DIST. VAISHALI ……………………………………………. RESPONDENTS WITH CWJC NO. 12272 OF 2003: 1. MAHABEER SINGH, SON OF LATE MOHAN SINGH, 2. HARI NATH SINGH, 3. NARESH SINGH, 4. KEDAR NATH SINGH, ALL SONS OF LATE RAGHUBEER SINGH, VILLAGE CHAUHATTA (CHHIPI TOLA), PS HAJIPUR, DISTRICT VAISHALI ……………………………………………..…….. PETITIONERS VERSUS 1. THE STATE OF BIHAR, 2. THE MEMBER, BOARD OF REVENUE, BIHAR, PATNA. 3. THE ADDL. COLLECTOR, VAISHALI. 4. THE DEPUTY COLLECTOR LAND REFORMS, HAJIPUR. 5. MD. MAHTAB ALAM, SON OF KHURSEED ALAM, 6. IMAM BUKHSHA ANSARI, SON OF LATE ABDUL HAKEEM ANSARI, VILLAGE CHAUHATTA, (CHHIP TOLA), PS HAJIPUR, DISTRICT VAISHALI. 7. DR. SHAILENDRA KUMAR CHOUBEY, SON OF LATE JAGAT NARAIN CHOUBEY, 8. RAJENDRA KUMAR CHATURVEDI, 9. HARENDRA KUMAR CHATURVEDI, BOTH SONS OF SHRI NARAIN CHATURVEDI, MOHALLA YUSUFPUR, PS HAJIPUR, DISTRICT VAISHALI –………………………………………………………………… RESPONDENTS. WITH CWJC NO. 10160 OF 2003 1. MAHABEER SINGH, SON OF LATE MOHAN SINGH, 2. HARI NATH SINGH, 3. NARESH SINGH, 4. KEDAR NATH SINGH, ALL SONS OF LATE RAGHUBEER SINGH, VILLAGE CHAUHATTA (CHHIPI TOLA), PS HAJIPUR, DISTRICT VAISHALI …………………………………………………..….. PETITIONERS VERSUS 1. THE STATE OF BIHAR, 4 2. THE MEMBER, BOARD OF REVENUE, BIHAR, PATNA. 3. THE ADDL. COLLECTOR, VAISHALI. 4. THE DEPUTY COLLECTOR LAND REFORMS, VAISHALI. 5. IMAM BUKHASH, SON OF LATE ABDUL HAKEEM ANSARI, 6. AFZAL ALAM, 7. KHURSHEED ALAM, 8. MAQUSOOD ALAM, 9. MANSOOR ALAM, 10. MANJOOR ALAM, 11. SHAFIQUE ALAM, 12. SHAHNAWAZ ALAM, ALL OF CHAUHATTA, (CHHIPI TOLA), PS HAJIPUR, DISTRICT VAISHALI. 13. DR. SHAILENDRA KUMAR CHOUBEY, SON LATE JAGAT NARAIN CHOUBEY, 14. RAJENDRA KUMAR CHATURVEDI, 15. HARENDRA KUMAR CHATURVEDI, BOTH SONS OF SRI NARAIN CHATURVEDI, YUSUFPUR, CHAUHATTA, PS HAJIPUR, DISTRICT VAISHALI ……………………………………………………………………. RESPONDENTS. ************** 5 09.07.2010 Heard learned counsel for the parties. These seven writ petitions have been filed against an order, dated 16.7.1996 of remand by this Court passed in CWJC No. 2619 of 1987. The Division Bench of this court directed that the Land Reforms Deputy Collector should allow the parties to lead evidence regarding the exact nature of the land, on the date of its purchase, so as to determine whether the disputed land is covered by the definition contained in section 2 (f) of the Bihar Land Ceiling (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as ‘the Act’). After the order of remand the parties did not lead oral evidence. However, 5 local inspection was conducted as directed by the Land Reforms Deputy Collector on 25.5.1998 regarding the nature of the land. I would first deal with the findings of the local inspection which goes to the root of the matter. The land in question was purchased by the private respondents which appertains to plot no. 77, khesra no. 3079. The findings of the Land Reforms Deputy Collector are that west to plot no. 77 is plot nos. 65 and 75. Plot no. 75 belongs to Sudama Ojha which is adjacent to plot no. 77 and part of plot no. 68 touches plot no.77. Plot no. 77 has been described as Parti land. The main road runs 500’ north to plot no. 77 and there are some houses situated just on the road. Adjacent to plot no. 75 is plot no. 86 which is a house and some of the lands have been used to grow maize. Next to plot no. 86, there is a house of Zalim Paswan. Mahabeer Singh, the petitioner has his house on the east of plot no. 77 and has a piece of land on the north side which is being utilized for growing maize. The petitioners also have some lands which extend to the boundary of the west side along with the boundary of Sudama Ojha and Imam Bux Ansari. The local inspection which has not been disputed by the either parties reveals as follows : (a) Firstly plot no. 77 is surrounded by 6 residential houses, (b) Some of the plots have residential houses along with some lands which is used to grow crops, such as maize, (c) that the petitioners is a boundary raiyat of plot no. 77, and (d) that respondent Imam Bux Ansari is also a boundary raiyat as some part of his land touches the boundary of plot no. 77. By seven sale deeds, Imam Bux Ansari and his six sons have purchased land measuring 3 kathas and 3 dhurs. The sale deeds are with respect to 10 dhurs of land each. The Land Reforms Deputy Collector held in favour of the petitioners and rejected the pre-emption application by order, dated 9.12.1998. The order was reversed by the Additional Collector in favour of the petitioners on 16.12.2000 which was set aside by the Member, Board of Revenue vide order, dated 27.11.2002. The Additional Collector while reversing the order of the Land Reforms Deputy Collector, Vaishali has considered three points, that is, (a) whether the pre- emption application would be maintainable under section 63 with respect to the Municipal area, (b) 7 whether the land which has been sold is agricultural land or not and (c) whether the petitioners are boundary raiyat< There is no dispute regarding the fact that the petitioners are all boundary raiyats and as such nothing has to be said on this issue. Having found that the petitioners are the boundary raiyats the question is whether in the facts of this case, their pre-emption application should be allowed the land which has been purchased in consonance with section 63 of the Act. This court notices that the lands purchased through the seven sales deeds are 10 dhurs only which is a very small piece of land and even if they are taken together, it is 3 kathas and 3 dhurs which is also a very small piece of land and is clearly not capable of being used for agricultural purposes unless the petitioners have adjoining lands which is being used for agricultural purposes. It is also clear that there are several houses in the vicinity and most of the lands are used primarily for residential purposes, the main road being not more than 500’ from the plot in question. Therefore, the findings of the Additional Collector holding that the land is not meant for residential purpose is hardly sustainable in view of the local inspection made by the Land Reforms 8 Deputy Collector. In support of the aforesaid facts, one may refer to the decision in the case of Md. Yasin vs. Abdul Rauf, 1967 BLJR 49 wherein a division bench of this court has held that small pieces of land adjacent to public road surrounded by other houses cannot be termed to be agricultural lands having regard to the object of the Act and the definition of the land holder under section 2(g) of the Act. I am, therefore, inclined to agree with the Member, Board of Revenue when he holds that the nature of the land is not meant for agricultural purposes. Counsel for the petitioners also refers to a judgment of this court in the case of Ghanshyam Choudhary vs. State of Bihar, 2010 (1) PLJR 281 where the court notices that where large plot of land was sold in pieces , the nature of the land simply changed, on the date, on which the sale deed was executed. In the present case, 3 kathas 3 dhurs of land has been broken up and sold in pieces, each measuring 10 dhurs and as such the nature of the land in any event would change on the date on which the sale deed was executed and it can no longer be termed as agricultural land. The contention of the petitioners that section 16 (3) of the Act would apply to the lands in the 9 Municipal area is perhaps not very relevant in this case as it depends on the nature of the land and the circumstances and reasons for which it was being utilized on the date of the sale deed, rather, than the fact that it was situated in the Municipal area. Referring to the objections of the petitioners that in fact the purchasers are not adjacent boundary raiyats to plot no. 77 which is subject matter of the sale deed, the petitioners rely on a Division Bench decision in the case of Dukho Devi vs. Uchit Lal, AIR 1967 Patna 434 wherein it has been held that the purchasers should not be non suited on the ground that they have similar common boundary to the pre-emptor, although the boundary is small in comparison to the boundary of the petitioners. Pre-emption is a weak right and if the petitioners have a common boundary to the land sold, the pre-emption application would not lie against them. But this is not the main reason for dismissing the writ petitions, rather, it is totally of the facts which include the nature of land, the size of plot etc. along with the fact that at least one of the respondents has a boundary touching the purchased land, which is of importance. I may also record that the respondents had filed an application for construction of the residential house before the Municipal authority which has been 10 sanctioned but they have been unable to construct the house because of pendency of the case. The sale deed was executed in 1986 and the respondents have remained in possession of the land since the date of execution of the sale deed for long twenty years. As mentioned above the petitioners of the seven writ petitions have purchased only 10 dhurs of land from the larger plot. This court, apart from the facts stated aforesaid, finds that their sale deed cannot be set aside on the ground, as they have purchased a very small piece of land and, therefore, no pre-emption application would lie for such a small piece of land. Considering all the facts aforesaid and the findings of the three courts along with the local inspection, this court finds no merit in this batch of writ petitions and as such they are dismissed. AFR/ haque (Sheema Ali Khan,J)