IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3499 of 2003 1. KULDIP CHOUDHARY, SON OF LATE GHURAN CHOUDHARY 2. JAI NARAIN CHOUDHARY, SON OF LATE GHURAN CHOUDHARY 3. SACHIDANAND CHOUDHARY, SON OF LATE SUKHDEO CHOUDHARY 4. VIJAY KRISHNA CHOUDHARY, SON OF LATE SUKHDEO CHOUDHARY ALL RESIDENTS OF VILLAGE FATEHA, P.S. BACHHBARA, DISTRICT BEGUSARAI. ----- PETITIONERS Versus 1. THE STATE OF BIHAR 2. ADDITIONAL MEMBER OF BOARD OF REVENUE, BIHAR, PATNA 3. KEDAR NATH CHOUDHARY 4. RAJ KISHORE CHOUDHARY 5. RAM KISHORE CHOUDHARY, ALL SONS OF LATE BABAN CHOUDHARY, ALL RESIDENT OF VILLAGE FATEHA, P.S. BACHHBARA, DISTRICT BEGUSARAI 6. SHILWAT CHOUDHARY, SON OF LATE RAM PRAKASH CHOUDHARY, RESIDENT OF VILLAGE FATEHA, P.S. BACCHBARA, TOWN AND DISTRICT BEGUSARAI. ----- RESPONDENTS ----------- 8 30.8.2010 The petitioners have challenged the order dated 21.2.2003, passed by the Additional Member, Board of Revenue, by which the Additional Member, Board of Revenue has apparently recalled the order passed on 28.6.2002 rejecting the respondent’s application filed for condoning the limitation in filing the revision application. The facts are that the petitioners five in number had purchased 5 Dhurs 6 Dhurkis of land by five sale deeds appertaining to Khata No. 155, Plot No. 1725. The pre-emptor respondent nos. 3, 4, 5 and 6 filed an application under Section 16(3) which was rejected by the D.C.L.R.,Teghra by his order dated 28.2.1996. The reason for rejecting the pre-emption application was that the D.C.L.R. came to the conclusion that the nature of the land purchased by the petitioners was meant for purely residential purposes considering the fact that the area was 2 very small and that the land was surrounded by houses of Darweshwar Choudhary, the pucca house of the applicant on the eastern side of the plot, the house of Mukteshwar Choudhary which was under construction at the relevant time as well as by the Panchayat Bhawan which was situated near to the vended plot. The D.C.L.R. held an enquiry regarding the nature of the land. The enquiry report disclosed that the land was Parti and could only be utilized for construction of a small hut. It was situated by the village lane which led to the highway. Having come to the conclusion that the land was not meant for agricultural purposes, the pre-emption application was rejected. Similarly, the appeal filed on behalf of the pre-emptor was also rejected on the same grounds after holding that the lands in question were not fit or meant for agricultural purposes. A revision application was filed on behalf of the pre- emptors. The Board of Revenue rejected it on the ground that the revision application was barred by limitation which is contained in Annexure-3 of the writ application. Apparently on 18.7.2002 the respondents filed an application for recall of the order. The notices were issued to the petitioners and thereafter on 21.2.2003 the Additional Member, Board of Revenue recalled his earlier order and passed an order on merits, in favour of the respondents- pre-emptors. The reason disclosed by the Member, Board of Revenue was that D.C.L.R. had gone to the spot on 22.2.1996 and had found that some vegitables etc. were growing on the land, whereas there is no such finding in the order of the D.C.L.R. 3 This Court finds that there is no power vested in the Additional Member, Board of Revenue to recall the order passed earlier. Secondly no power has been given to the Additional Member, Board of Revenue/Member, Board of Revenue, to recall the order passed by him that too when the order passed is a final order rejecting the revision application. It is also submitted, that factually the order appears to be incorrect, in view of the fact that the D.C.L.R. has considered the inspection and made comments on the inspection concluding the land sold was not fit for agricultural purposes. Similarly, the Appellate Court has also found that on inspection of the vended land, it was found to be fit for residential purposes, given the fact that it was surrounded by houses on all sides and it was situated on the main lane of the village. It is well established that lands situated in an area which is used for residential purposes would be considered to be a land fit for residential purposes. This Court also finds that the area of the land purchased by each of the petitioners is so small that it cannot be utilized for agricultural purposes. On both the aforesaid counts, this Court finds that the order of the Additional Member, Board of Revenue is fit to be set aside and is accordingly quashed. This writ application is allowed. Sanjay ( Sheema Ali Khan, J.)