CIVIL WRIT JURISDICTION CASE No.2441 OF 1998 ******* In the matter of an application under Article 226 of the Constitution of India. ******** Bhola Singh, son of late Yugal Singh, resident of village- Purabezabad, P.O.- Sonepur, Police Station- Sonepur, District- Saran (Pre-emptor) ------ Petitioner. -Versus- 1. The State of Bihar. 2. The Additional Member, Board of Revenue, Bihar, Patna. 3. The Additional Collector, Saran at Chhapra. 4. The Deputy Collector, Land Reforms, Sonepur. 5. Sushila Devi, wife of Chandrika Prasad, resident of village- Purabezabad, P.O. & P.S.- Sonepur, District- Saran (vendee). 6. Ram Prasad Singh, son of late Yugal Singh, resident of village- Purabezabad, P.O. & P.S.- Sonepur, District- Saran at Chhapra—(Vendor) ---- Respondents. ********** For the petitioner: M/S V. Nath, Ashok Kumar, Md.Waliur Rahman & Satyapal Singh, Advocates. For Respondent Nos. 5 and 6: Mr. R.S. Pradhan, Sr. Advocate with Mr. Binod Kumar, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA S.K.Katriar,J. This writ petition, at the instance of the pre-emptor within the meaning of Section 16(3) of the Bihar Land Reforms ( Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, (hereinafter referred to as “the Act”), seeks a direction to quash the resolution dated 07.07.1997 (Annexure-1), passed by the learned Additional Member, Board of Revenue, Bihar, whereby 2 the revision application filed under the provisions of Section 32 of the Act has been rejected, the order of the learned appellate authority has been upheld, and the petitioner‟s claim for pre- emption has been rejected. 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. Respondent no. 6 had alienated plot No. 304, appertaining to khata no. 6, covering an area of 5 kathas 12 dhurs, situate in Mauza Parbezabad in Sonepur Anchal, District Saran, in favour of respondent no.5, by registered deed of absolute sale dated 24.11.1993 (Annexure-3). The petitioner promptly filed an application dated 17.12.1995, claiming pre- emption with respect to the vended plot. He, inter alia, set up a case in his application that he is a co-sharer as well as adjoining raiyat with respect to the vended plot. Respondent no.5 placed on record her show-cause wherein she, inter alia, stated that the land in question is not cultivable land, and is really homestead land surrounded by two residential houses. It is further stated that respondent no. 5 had purchased the same for construction of her residential house. It is also stated therein that the same lies within the area notified to be under the Patna Regional Development Authority. The petitioner‟s application on contest was allowed by order dated 27.12.1995 (Annexure-4), inter-alia, on the ground that he is an adjoining raiyat, and the land in question is fit for agricultural purposes. It was stated that respondent no.5 did not 3 lead evidence at all in support of her case set up in her show- cause. The learned first authority, therefore, allowed the petitioner‟s claim for pre-emption with respect to the vended plot. 2.1. Aggrieved by the order, respondent no.5 preferred appeal which has been allowed by order dated 26.06.1996 (Annexure-2), passed by the learned Additional Collector, Saran, Chapra, wherein he held that the lands are within the limits of the Patna Regional Development Authority, and is meant for residential purposes. The petitioner challenged the same by preferring revision application in terms of the provisions under Section 32 of the Act, which has been rejected by the impugned order. Hence this writ petition is at the instance of the pre-emptor. 3. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the learned revisional authority has made a serious error in accepting the statements made in the show-cause of respondent no.5 as gospel truth, which was wholly impermissible in view of the situation that no evidence at all was led before the learned first authority to substantiate the case set up in the show-cause. He next submits that the learned appellate authority as well as the learned revisional authority have made serious error in travelling beyond the statements made in the show-cause which is impermissible in law. He relies on the order of a Division Bench of this Court in the case of Moghal Singh & Ors. Vrs. Member, Board of Revenue & Ors., reported in 1981 4 BBCJ 97 (paragraphs 8 & 9). He submits that the materials on record lead to the only conclusion that it is meant for agricultural purposes. He also submits that the fact that the land in question is notified to be within the area of the Patna Regional Development Authority does not by itself mean that the land in question has ceased to be for agricultural purposes. He relies on the following reported judgments: (A) Judgment of a Division Bench of this Court in the case of Lal Mohan Bej Vs. State of Bihar & Ors., 1990(1) PLJR- 750( Para-9). (B) Judgment of a learned Single Judge of this Court in the case of Ram Chandra Singh Vs. The Sub Divisional Officer, Hajipur & Ors. 1989 BLJ 157=1988 B.B.C.J.769 . 4. Learned counsel for respondent no.5 (the purchaser) submits that the issues are concluded by findings of fact recorded by the learned appellate authority as well as the learned revisional authority. He next submits that, in view of the position that the land in question has been notified to be within the jurisdiction of the Patna Regional Development Authority, means that it has per se ceased to be agricultural in nature. He submits that the decisions of this Court in Lal Mohan Bej (supra), and Ram Chandra Singh (Supra), are inapplicable to the facts and circumstances of the present case. He also relies on the judgment of a learned Single Judge of this Court in the case of Shanti Devi & Ors. State of Bihar & Ors., reported in 2005 (3) BBCJ 403(paragraph 9). He lastly submits that it is a fit case in which 5 the matter may be remitted to the learned first authority for its enquiry. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. We would first of all like to examine the nature, character, and user of the land in question. A copy of the registered deed of absolute sale is marked Annexure-3 to the writ petition in which occupation/avocation of respondent no.6 (the vendor) as well as respondent No.5 (the vendee) have been described as „Grihasthi‟, which means cultivation. The description of the lands in question describes as “Kast Kayami”, which means raiyati land i.e. fit for cultivation. It also describes the land as “EK Fasla”, which means that the land is capable of only one crop in a year. It is thus evident that the statements made in the deed of conveyance are adequate guideline to establish that the land in question is meant for agricultural purposes, and has been purchased for agriculture. 6. The show-cause of respondent no.5 before the learned first authority has taken stand that the lands in question have been notified to be within the area of Patna Regional Development Authority. The admitted position is, and has indeed been noted by the learned first authority in his order, that respondent no.5 did not lead any evidence in support of the case set up in her show-cause. Law is well settled that parties are entitled to lead evidence on the points raised in their pleadings, and pleadings can not take the 6 place of proof. It was, therefore, impermissible for the learned appellant authority as well as the learned revisional authority to have passed their orders on mere statements made in the show- cause. In the absence of any evidence in support of the case set up in the show-cause, the case will be deemed to have remained unproved. Therefore, it was impermissible for the two authorities to place any reliance on the mere statements made in the show- cause. 7. The issue which arises for consideration and was in fact noted in the order dated 08.02.1999, referring this matter for the consideration of a Division Bench, is the effect of the Urban Land (Ceiling and Regulation) Act, 1976, on the scope, sweep, and operation of the Act. We are, however, proceeding for the sake of argument on the basis that the lands in question have been so notified. This issue came up for consideration before a Division Bench of this Court. We are relieved of the duty of examining this question, having been concluded by a Division Bench of this Court in Lal Mohan Bej (Supra). The Division Bench has in substance held that operation of Urban Land (Ceiling and Regulation) Act shall not come in the way of full operation of the Act. Paragraph-9 of the judgment is relevant and is reproduced herein below: “It will thus appear from a perusal of the relevant provisions of the two Acts that while the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act deals with ceiling of land which is used or is capable of being used for agriculture or 7 horticulture, the Urban Land (Ceiling and Regulation) Act, 1976 deals with ceiling of land not being land mainly used for the purpose of agriculture. It is, therefore, apparent that two Acts deal with two distinct types of land, one is concerned with what may be broadly called agricultural land’ while the other deals with what may be described broadly as urban land which excludes land mainly used for the purpose of agriculture. I, therefore, find noting in the provisions of the two Acts which can lead me to conclude that one Act exclude the operation of the other. In my view, there is no dichotomy between the two Acts and they deal with two distinct types of land.” 7.1. The same view has been taken by a learned Single Judge in 1988 B.B.C.J. 769=1989 B.L.J. 157. It was observed that:- “However, in my opinion, the submission made on behalf of the learned counsel for the petitioners that the provision of the Act will have no application in a case where the provisions of Urban Land (Ceiling Regulation) Act, 1976 applies has no substance. There appears to be in my opinion no conflict between the provisions of the aforementioned two Acts. In any event in this case it is not possible to hold that the land in question is situated within the Urban agglomeration as the said point was not taken before the courts below nor is there any finding in relation thereto. I am also of the view that the section 52 of the Urban Land (Ceiling and Regulation) Act, 1976 does not bar the application of the said Act and upon a harmonious construction of the provisions of both the Acts, it is clear that the provision of the said Act also applies to the agricultural lands situated within the limits of municipality or notified area committee.” 7.2. The Division Bench also approved the decision of a learned Single Judge of this Court in Ram Chandra Singh ( Supra). We are thus of the view that, even if that were the 8 position that the land in question has been notified to be within the area of Patna Regional Development Authority, the sweep and operation of section 16(3) of the Act remains unaffected. The contention advanced on behalf of respondent no.5 is rejected. 8. The next question which arises for consideration is whether or not the petitioner has established his case that he is a co-sharer and/or adjoining raiyat. The statement made in the deed of conveyance is a complete answer to the same. It is stated that the boundaries of the land in question alienated therein states that the petitioner is owner of the lands of two sides of the vended plot. We are, therefore, of the view that the findings of facts recorded by the learned appellate authority and the learned revisional authority are perverse, based on no evidence, are based on the unsubstantiated statements made in the show-cause. 9. We do not find it to be a fit case in which the matter may be remitted to the learned first authority which will put a premium on negligence. She was given adequate opportunity of hearing before the learned first authority, being the primary forum for collection of evidence as well as local enquiry. 10. In the result, we set aside the impugned order of the learned Additional Member, Board of Revenue, Bihar, Patna, dated 07.07.1997 (Annexure-1), and restore the order dated 27.12.1995 (Annexure-4) of the learned first authority. The petitioner‟s application under section 16(3) of the Act is hereby 9 allowed. 11. The writ petition is allowed. In the circumstance of the case, there shall be no order as to costs. B.P. Verma, J. I agree. Patna High Court, Patna Dated 10th November, 2010 Vinay/ A.F.R. ( S. K. Katriar,J.) ( Birendra Prasad Verma, J.)