CIVIL WRIT JURISDICTION CASE No. 8028 OF 1991 ***** ( In the matter of applications under Articles 226 of the Constitution of India ) ****** NAGINA SAH, SON OF BADRI SAH, RESIDENT OF VILLAGE AND POLICE STATION MASRAKH, DISTRICT SARAN ………………………..…………………………………………….……...PETITIONERS VERSUS 1. THE ADDITIONAL MEMBER, BOARD OF REVENUE, PATNA 2. THE ADDITIONAL COLLECTOR, SARANT AT CHAPRA 3. THE DEPUTY COLLECTOR LAND REFORMS, SARAN AT CHAPRA 4. DHARAMNATH TIWARY, SON OF SHRI JANAK TIWARI, RESIDENT OF VILLAGE AND POLICE STATION MASRAKH, DISTRICT SARAN 5. MOTILAL SAH, SON OF CHHEDILAL, RESIDENT OF VILLAGE BHALLA TATWA TOLI, POLICE STATION KHAJANCHI HAT, DISTRICT PURNEA, PRESENTLY, RESIDING AT VILLAGE AND POLICE STATION MASRAKH, DISTRICT SARAN …………………………………………………..…………………….RESPONDENTS ******************** FOR THE PETITIONER :- MR. RAMAKANT SHARMA, SR. ADV. MR. RAJESH KUMAR, ADVOCATE FOR RESP. NO. 4 :- MR. RAM SURESH ROY, SR. ADV. MR. ARBIND KR. SINGH, ADV. FOR THE S T A T E :- MR. RABINDRA KR. PRIYADARSHI, AC TO AAG III ****** P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. The petitioner has challenged the order of the Land Reforms Deputy Collector dated 04.09.1990 passed on remand for the purpose of conducting a spot enquiry with respect to the nature of the lands and the order of the Additional Member, Board of Revenue passed in Case 2 No. 575 of 1990. The petitioner is the purchaser of Plot No. 7413, measuring 19 dhurs, 7827, measuring 2.5 dhurs and 7829, measuring 2.5 dhurs, appertaining to Khata No. 501 in village Masrakh, in the district of Saran. The total lands purchased is 1 katha 04 dhurs along with 01 decimal of lands situated in the district of Purnea, appertaining to Khata No. 1216, Plot No. 2042. The respondent no. 4/the pre-emptor filed an application under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1962 (hereinafter referred to as ‘the Act’). The pre-emption application was rejected by order dated 11.031985 passed by the Land Reforms Deputy Collector, Saran who has recorded a finding that the Khatiyan of Khata No. 501 indicates that the lands are basgit makaan –cum sahan. Aggrieved by the order of the Land Reforms Deputy Collector, Saran, the pre- emptor moved before the Collector, who allowed the appeal and thereafter the petitioner moved before the Additional Member, Board of Revenue who remanded the matter back to the Additional Collector on two points i.e. enquiry with respect to the nature of the lands and to examine as to which of the persons are on the boundary of the vended lands. The Additional Collector is said to 3 have conducted a spot verification of the lands in question. There is no report on the record to support his finding, but he has recorded the following facts:- (a) Nagina Sah is not on the boundary of Plot No. 7413; (b) The pre-emptor is on the boundary of Plot No. 7827 and 7829; (c) The pre-emptor has his house north to the lands in question; (d) The petitioner has his house on the southern side which he has purchased after filing of the pre-emption application; (e) There is a road between the houses of the petitioner and the pre-emptor; (f) The lands in question are situated close to the lands of the petitioner; & (g) The petitioner is utilizing the lands vended for the purpose of keeping the cattles. On the basis of the aforesaid findings, the Additional Collector concluded that the respondent/pre- emptor was on the boundary of all the vended lands and also concluded that all the lands are low lands and, therefore, meant for the agricultural purposes. Counsel for the petitioner submits that the findings of the Additional Collector who has conducted the spot verification indicates that the respondent/pre- emptor is on the boundary of only two plots of land i.e. 7827 and 7829. There is also a finding that the house of the petitioner is south of Plot No. 7827 and 7829. It is 4 also apparent from the order that both the petitioner and the respondent/pre-emptor have their houses near the vended plot of lands. Counsel for the respondent no. 4, on the other hand, submits that since the respondent no. 4 is on the boundary of the plot, he has a right to file an application under Section 16 (3) of the Act and the orders impugned are completely justified in view of the fact that the Additional Collector has come to a finding that the lands are capable of being used for agricultural purposes. On perusal of the orders, this Court finds that in fact the lands of all the three plots altogether measure 1 katha 4 dhurs, which is a very small piece of land and can hardly be used for the purposes of carrying on agricultural activities. I find that the Additional Collector has recorded contradictory findings with respect to the nature of the lands, inasmuch as he has held that there are two houses, which are adjacent to the land and a village road runs between the two houses. The fact that the vended land and adjoining land from the very beginning has been recorded as homestead land in the Khatiyan, cannot be ignored, as such an entry in the revenue records indicates that the land in that area was never used for agricultural purposes. Although, it may be possible that the nature of the land can change over a 5 period of time, but it is hardly possible that the nature of the residential areas of lands may change and become agricultural in nature. It may be possible that residential areas may be converted to commercial areas, but it is never seen that residential areas are converted into agricultural areas. Reference may be made to the decision of this Court in the case of Vidya Prasad Singh vs.The State of Bihar & Others, [2010 (2) PLJR 17]. This Court has held that the intention of the parties as exemplified in the sale deed ought to be taken into consideration for the purpose of coming to the finding with respect to the utility of the land and should also be taken as one of the parameters to determine the nature of the land. In the present case, the area transferred, the fact that it is recorded as homestead land in the Khatiyan and the intention of the purchaser all together lead this Court to hold that the land vended is not an agricultural land and cannot be used for agricultural purposes. Learned Counsel for the petitioner relies on a decision of this Court in the case of Sahdeo Prasad Yadav vs. The State and Others (1999 (2) PLJR 460). The facts were that the Consolidation Authority had recorded the vended land as house with orchard. The spot enquiry made by the Additional Collector indicates that the lands 6 were agricultural lands. The Court relies on the findings of the Consolidation Authorities rather than the report of the Additional Collector as the Court found that the Consolidation Authorities had updated the revenue records. The facts of this case may not be similar, but the principles would be applicable to this case as well. Counsel for the petitioner also draws this Court’s attention to the averments made in paragraph 7 in which it is stated that the petitioner has inherited plot no. 2848 which belonged to his uncle Budha Sah, who died issueless, which plot of lands are in the boundary of plot no. 7413. This fact has not been controverted. It is submitted that by virtue of his inheritance, he becomes the boundary raiyat of plot no. 7413 and thereby also becomes the boundary raiyat of Plot Nos. 7827 and 7829. Counsel for the petitioner also refers to the judgment passed by the Division Bench of this Court in the case of Smt. Sudama Devi & Others vs. Parmeshwar Narain Singh and Another (1973 PLJR 534) in which it has been held that the pre-emptor should be able to show that he is in the boundary of all the three plots. The report of the Additional Collector is not quite clear on this aspect of the matter. It mentions positively that the pre-emptor is in the boundary of two plots but has failed to indicate that he is the boundary raiyat of 7 the third plot i.e. Plot No. 7413. In any event, this Court sets aside the orders impugned mainly on two grounds, which are that the lands vended is a very small piece of land and as such it cannot be said that it is agricultural land, and on the ground that the lands in question are near the houses of both, the petitioner and the respondent/pre-emptor, indicating that the nature of the land is homestead. This writ application is accordingly allowed. ( Sheema Ali Khan, J. ) PATNA HIGH COURT DATED, THE 25th NOVEMBER, 2010 A.F.R./ANAND