IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1820 of 2006 Jhabulal Singh, Son of Late Ram Nagina Singh, R/o vill. Barahana, P.S. Itarhi, Dist. Buxar. ---Petitioner Versus 1. The State of Bihar 2. The Member, Board of Revenue, Old Secretariat, Patna 3. The Collector, Buxar 4. The D.C.L.R. Buxar . ---Respondents 1st set 5. Rama Nuj Pandit, son of late Kanhaiya Pandit 6. Hriday Narayan Singh son of Late Baleshwar Singh (Both R/o vill. Barahana, P.S. Itarhi, Dist. Buxar --Respondents 2nd set with CWJC No.1851 of 2006 1. Tej Narayan Singh son of Ram Barat Singh. 2. Vijay Narayan Singh son of Ram Barat Singh Both R/o Vill. Barahana, P.S. Itarhi, Dist. Buxar ----Petitioners Versus 1. The State of Bihar 2. The Member, Board of Revenue, Old Secretariat, Patna 3. The Collector, Buxar 4. The D.C.L.R. Buxar . ---Respondents 1st set 5. Rama Nuj Pandit, son of late Kanhaiya Pandit 6. Hriday Narayan Singh son of Late Baleshwar Singh (Both R/o vill. Barahana, P.S. Itarhi, Dist. Buxar ---Respondents 2nd set For the Petitioners : Mr. Surendra Kumar Singh, Advocate. For the State : Ms. Kumari Amrita, G.P.10 For respondent no.5 : Mr. Sanjay Kumar, Advocate. ----------- 03 20.05.2011 Both the writ petitions question sustainability of a common resolution dated 25.10.2005 passed by respondent Board of Revenue in case nos. 298 of 2004 and 299 of 2004. The preemptor is the same in both the cases. They have been dealt with analogously by the Courts below. With the consent of the parties they have, thus, been heard together. Order present shall govern them. For the sake of brevity, relevant facts shall be drawn from 2 C.W.J.C. no. 1820 of 2006., On 27.03.2001 5 ¼ decimals of land appertaining to khata no. 101, Plot no. 164, situate in Mauza Barahana, in the District of Buxar was vended by respondent no.6 in favour of the writ petitioners. Respondent no.5 claiming himself to be adjoining raiyat of the vended plot(s) filed proceeding under Section 16(3) of the Bihar Land Reforms ( Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 ( for short „the Act‟) giving rise to L.C. case no. 02 of 2001-2002. Let it be recorded that the same vendor executed two sale deeds in favour of petitioners of C.W.J.C. No. 1851 of 2006 in respect of pieces of land appertaining to khata nos. 101 and 57, plot nos. 164 and 161 measuring a total area of 53 11/12 decimals of land. The two purchasers (writ petitions of C.W.J.C.No. 1851 of 2006) are full brothers. The sale made in favour of the writ petitioners of C.W.J.C. No. 1851 of 2006 was/were also impugned by the preemptor giving rise to L.C. Case no. 01 of 2001-02. By a common order dated 08.09.2001 respondent D.C.L.R. allowed both the applications filed by the preemptor/respondent no.5. Aggrieved by the aforesaid order writ petitioner(s) filed two appeal(s) being Appeal nos. 114 of 2001 and 115 of 2001. By order dated 11.07.2003 (Annexure-4) the appeals was/were dismissed. Aggrieved by the aforesaid order the petitioner(s) preferred two revision application being Board Revision case nos. 157 of 2003 and 158 of 2003. By a common resolution dated 28.04.2004 (Annexure-5), the revision applications were allowed, the appellate order was set aside and the matter was remanded back to the appellate authority/Court to hold local inspection and decide afresh on the issues reflected in the 3 said order. In the light of the direction made by the revisional Court, local inspection was got made through an Executive Magistrate after due notice to the parties. Said report was submitted on 14.07.2004, and was forwarded to the appellate Court by letter bearing no. 37 dated 21.08.2004 (Annexure-6). Respondent Appellate Court/authority, after hearing both the sides, allowed the appeal by a common order dated 05.11.2004 (Annexure-7) whereby the claim of the preemptor was rejected on the ground that one of the purchasers (petitioner of C.W.J.C. No. 1820 of 2006) was landless and that the land covered by the subject sale deeds were fit for residential purposes unconnected with agriculture. Aggrieved by the aforesaid order the preemptor preferred revision application being Board revision case nos. 298 and 299 of 2004. The revisional authority/Court, by a common resolution dated 25.10.2005 (Annexure 1), set aside the appellate order and allowed the claim of preemption raised by respondent no.5 passaging filing of these two writ petitions. Learned counsel for the petitioner(s) submitted that after the case was remanded to the appellate court/authority for local inspection the said Court got the local inspection made by Executive Magistrate after due notice to the parties wherein it was found that petitioner Jhabulal Singh was landless person. It was further found that several residential houses have come up on or around the plot/land in question. Such inspection was made in presence of the Revenue Officials and villagers after due notice to both the parties. Spot inspection report (Annexure-7) to the supplementary affidavit 4 reads as under:- “fookfnr LFky IykV 164 dh pkSgnnh mÙkj esa IykV ua0 187] 188 nf{k.k Noj] if'pe esa IykV ua0 174] 173] 172 oxSjg ,oa iwoZ esa IykV 161] 162] 163 gSA fookfnr LFky ds tkWp ds Øe esa IykV ua0 164 ij tks vkoklh; tehu gS] ij vusd yksx vyx vyx edku cukdj jg jgs gSa ftudk foLrqr fooj.k utjh uD'kk ds vykos ,d vyx iUus ij vafdr oks fpfUgr gS tks bl fjiksVZ dk fgLlk gSA ds'k uEcj 115@2001&02 >Ccq yky flag cuke jkekuqt iafMr ds lanHkZ esa tkWp ds Øe ik;k fd >Ccq yky flag Hkwfeghu O;fDr gS vkSj flQZ tehu ds uke dokyk yh gqbZ tehu gS tks jsdMZ ds lkFk layXu gSA fQyoDr edku ds vHkko esa >Ccq yky flag jksM ls lVs fcgkj ljdkj dh tehu ij jgrk gSA jkekuqt iafMr ds ikl dkQh tehu gS oks iz'uxr tehu IykV 164 ds iwohZ Nksj ,oa if'peh Nksj ds ,d fgLls esa jkekuqt iafMr dh tehu gSAÞ Relying on ratio laid down by a division bench of this Court rendered in the case of Chatur Sah & Anr. Vs. Chandra Bhushan Maharaj & Ors. BBCJ 1993 587, it has been contended that if nature and use of the subject land has changed then claim of preemption in respect thereof cannot be allowed. As about petitioner of CWJC no. 1820 of 2006, it has been submitted that he has been found to be landless and as such no such claim can be sustained against a landless person in view of the proposition of law explained in 2007 (Supp.) PLJR 164 (Shyam Bihari Mistri & Ors. & Lal 5 Bihari Mishtri Vr. State of Bihar & Ors.) relying on another division judgment of this Court in the case of Nathuni Singh Yadav & Anr. Vs. State of Bihar & Ors. 1997(2) PLJR 287. Learned counsel appearing on behalf of the respondent no.5, on the other hand, submits that an objection (Annexure E to the counter affidavit) was filed on behalf of the respondent/preemptor against the report submitted by the Executive Magistrate which has not been taken notice of by the authority. It is submitted that petitioner Jhabulal Singh had more than 01 acres of land. Reliance in this regard has been placed on (Annexure –C series to the counter affidavit) which indicate that the father of the petitioner held more than 2.58 acres of land. In reply, it is submitted on behalf of the petitioner(s) that the documents placed at Annexure-C to the counter affidavit indicates holding of land more than 2.58 acres of land by grand father or father of the petitioner and the petitioner in fact is presently left with no land after alienation(s) made by his grand father and father . In para 27 of the writ petition, the petitioner has averred as under:- “27. That it is stated on behalf of the petitioner that Kunj Bihari Singh has gifted his entire land to Shree Ram Singh 16 years back and no share whatsoever was given to Jhabbu Lal Singh and as such he is still landless man.” The said averments have not been specifically and/or categorically been denied in the counter affidavit. In view of the aforesaid fact as also the findings recorded by the authority under the Act, after local inspection, it is difficult to hold that petitioner Jhabulal Singh was left with land in order to hold him not landless. 6 The report (Annexure-7 to supplement affidavit) graphically demonstrates that on or around the vended plot several residential structures have grown up. The preemptor himself had residential house on the remaining portion of the plot. In Deo Narain Mandal Vs. Ram Chandra Mandal & Ors. 2007(4) PLJR 659, a division bench of this Court held that if the preemptor having been allowed the claim of preemption failed to secure reconveyance and, in the meanwhile, the nature of land changed and became wholly residential inasmuch as permanent structures were made by the purchaser then the right of claim of preemption at the belated stage should fail as the same would amount to unjust enrichment. Learned counsel for the respondent has argued that the right engrafted under Section 16(3) of the Act is statutory right and has to be upheld if it is found that the preemptor is adjoining raiyat and/or co sharer of the vended plot and the application has been filed within time. However, such claim has to be allowed only in respect of land which is either agricultural and /or land capable of being used in connection with agriculture. The preemptor has to present a foolproof case in order to succeed. It is found from the materials on record that one of the purchasers was landless person for which certificate was enclosed and the local inspection vouched the same after perusal of revenue records. Thus, in view of law laid down in this regard, no such claim can be allowed against a landless person. It is further seen from the inspection report as well as the appellate Court order that the vended lands changed its colour and use. It is no longer connected with agriculture. Several residential premises have come up on or around 7 the plot in question. It is found located close to Bazar. If the nature/use of the land has changed and it is no longer found connected with agriculture then allowing claim of preemption would not sub serve the aim and object for which the provision has been engrafted. In view of discussions made hereinabove, it is held that the revisional Court committed an error in upturning those findings based on materials coming to fore after local inspection carried out by the authority under the order of the Board of Revenue (Annexure-5). In the result, the applications are allowed. Impugned resolution dated 25.10.2005, passed by Additional Member Board of Revenue, Bihar contained in Annexure-1 is quashed. In the facts and circumstances of the case, parties will bear their own costs. Sym (Kishore K. Mandal, J.)