IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10131 of 2010 1. PRAKASH PRASAD CHOURASIYA S/O SURESH PRASAD CHOURASIYA R/O VILL.- JHANJHARA POLICE STATION, PARBATTA IN THE DISTRICT OF KHAGARIA 2. KAILASH PRASAD CHOURASIYA S/O SURESH PRASAD CHOURASIYA R/O VILL.- JHANJHARA POLICE STATION, PARBATTA IN THE DISTRICT OF KHAGARIA --- PETITIONERS Versus 1. THE STATE OF BIHAR THROUGH THE COLLECTOR, KHAGARIA, DISTT.- KHAGARIA 2. THE D.C.L.R., GOGARI, DISTT.- KHAGARIA 3. THE ADDITIONAL COLLECTOR, KHAGARIA, DISTT.- KHAGARIA 4. THE ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR, PATNA --RESPONDENT 1ST PATRY 5. RADHEY SHARMA S/O LATE JAGDEO SHARMA R/O VILL.- JHANJHARA, P.S.- PARBATTA, DISTT.- KHAGARIA --RESPONDENT 2ND PARTY 6. RAM BILASH SHARMA S/O LATE SURYA NARAYAN SHARMA R/O VILL.- JHANJHARA, P.S. PARBATTA, DISTT.- KHAGARIA ---RESPONDENT 3RD PARTY ----------- 07 14.03.2011 Heard learned counsel for the petitioners, respondentno.5 (pre-emptor) and the State. Supplementary affidavit and counter affidavits have been filed by the parties. Pleadings being complete, arguments were heard on behalf of both the sides and the application is being disposed of finally at this stage. Writ petitioners herein are purchaser(s) of a piece of land and raise a grievance against order dated 2.2.2010 (Annexure-6) passed by respondent Additional Member, Board of Revenue, Patna in Pre-emption case no. 93 of 1999 (Prakash Prasad Chaurasia & Anr. versus Radhey Sharma) whereby the revision application was dismissed and order of respondent 2 Additional Collector was upheld. Background facts giving rise to the application in a nut shell are as under:- 05 kathas of land appertaining to survey khata no. 69, survey plot no. 307 situated at village Jhanjhara in the District of Khagaria was sold by respondent no. 6(vendor) in favour of the petitioners by a registered sale deed dated 17.08.96. Respondent no.5 ( pre-emptor) laid a claim of pre-emption in respect of the said transfer by instituting a proceeding in the Court of respondent Deputy Collector Land Reforms which gave rise to Pre-emption case no. 06 of 1996. The said respondent by order dated 16.09.1997 (Annexure-2) dismissed the claim of pre- emption raised by respondent no.5. Aggrieved by the said order the pre-emptor (respondent no.5) preferred an appeal vide pre- emption appeal no. 01 of 97-98 (Radhey Sharma vs. Prakash Prasad Chaurasia and Anr.). The appellate authority by a proceeding dated 15.01.1999 (Annexure-3) allowed the appeal and the claim of pre-emption was upheld. Aggrieved over the said order the writ petitioners filed revision before the respondent Member Board of Revenue which was allowed by resolution dated 09.10.2002 passed in case no. 93 of 1999 (Prakash Prasad Chaurasiya and Ors. vrs. Radhey Sharma & Ors). By the said resolution, the order of respondent Deputy Collector Land Reforms (Annexure-2) was upheld and the appellate order dated 15.01.1999(Annexure-3) was set aside. Feeling aggrieved by the aforesaid resolution of Board of 3 Revenue, respondent no.5 preferred a writ petition in this Court vide C.W.J.C. no. 2969 of 2003. By a proceeding dated 28.07.2009 (Annexure-5) said application was allowed in the following terms:- “In view of the aforesaid, the revisional order does not hold good and is fit to be set aside. I, accordingly, hereby set aside the revisional order and remit back the matter to the Member, Board of Revenue for determination on the point afresh as to whether there had been sufficient compliance of the directory provisions of Rule 19 of the Ceiling rules and LC Form XIII or not after granting opportunity to the parties of being heard if the petitioner produces a certified copy of the order within one month from today. The parties will be free to raise other issues also, if advised, which if raised shall be decided by the revisional authority in accordance with law.” After remand the petitioners filed a supplementary affidavit raising certain additional issues which include the claim that writ petitioners were possessing a very small tract of land to their credit and were, in fact, landless and, as such, the claim of pre-emption in respect of the impugned sale may not be allowed. Respondent revisional authority, by impugned resolution dated 2.2.2010 (Annexure-6), rejected the revision petition of the writ petitioners leading to the filing of present writ petition While assailing the order(s) including the impugned resolution of the Board of Revenue, the petitioners has made only one submission. It is contended that the writ petitioners own very small tract of land which include the lands acquired by the sale deed which has been made the subject matter of pre- 4 emption proceeding at the instance of respondent no.5. They are, thus, landless person and, as such, the pre-emption application ought to have been rejected. It is next submitted that while disposing of the writ proceeding by order dated 28.07.2009(Annexure-5), a liberty was granted to the parties to raise other issues also, and if raised, the Board of Revenue would decide the same in accordance with law. Having regard to the aforesaid liberty a supplementary affidavit was filed by the writ petitioners in the pending revision case no. 93 of 1999, copy whereof has been enclosed as Annexure-8 to the supplementary affidavit filed in the present writ proceeding. Paragraph nos. 11 and 12 of the said supplementary affidavit filed before the Board of Revenue read as under:- “11. That it is pertinent to mention here that except two plots of 5 kathas as well as 1 katha 5 dhurs there is no other land on this earth either in the name of petitioners or in the name of his brother Birendra Chourasiya or the name of his father Suresh Chourasiya. 12. That if any way the land in question is acquired by the opposite party or by any other person, in this situation they will be landless and Homeless. Thus except the abovesaid land there is no land to stand to the petitioners.” In support of their submission petitioners has referred to and relied upon a Division Bench judgment of this Court since reported in 1997(2) PLJR 287( Nathuni Singh Yadav & Anr. Vs. The State of Bihar & Ors.), as also a judgment of this Court rendered by a Single Judge and reported in 2005(2) PLJR 24 ( Bharat Prasad & Anr. Vs. The State of Bihar & Ors.). 5 Learned counsel appearing on behalf of respondent no.5, on the other hand, submitted that the said issue was not raised in the Court below earlier and, therefore, cannot be raised before the revisional Court. Referring to paragraph no. 6 of the impugned resolution (Annexure-6), it is contended that the said factum would manifest therefrom. It is submitted that it has been found by the Court below that although a very small tract of land was transferred under the impugned sale deed but the land covered therein was fit for agriculture and that there is no indication therefrom that the subject land was/were being acquired/purchased for homestead purposes. It is submitted that respondent no.5 has concurrently been found to be the adjoining raiyat of the vended land/plots and, as such, this Court may not interfere with those findings and allow the present application. I have considered the submissions advanced on behalf of the parties and perused the materials on record. From the supplementary affidavit filed before the revisional Court after remand by this Court it appears a positive stand was taken by the writ petitioners that they have to their credit only 02 plots measuring an area of 05 kathas and 01 katha 05 dhurs. There is no other land in the name of the petitioners or in the name of his brother or his father. It has been contended on behalf of the petitioners that if a person having a very small tract/piece of land is not allowed the protection then it may cause serious prejudice to his/their right to hold land/property as there may be a situation where he can never acquire any land as any such acquisition 6 shall be resisted by filing a claim of pre-emption by the adjoining raiyat/co-sharers. It will thus result in highly iniquitous situation. In Nathuni Singh Yadav (Supra) a Division Bench of this Court has held that right of pre-emption although created by statute is a clog on the right of person to acquire land. Relying on a judgment of the Supreme Court since reported in AIR 1960 SC 1368 (Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi) it has been observed therein that there are no equities in favour of pre-emptor, whose sole object is to obstruct a valid transaction by virtue of the rights created in him by Statutes. Taking into consideration the scope and ambit of such right created under Section 16(3) of the Act as interpreted by Supreme Court in AIR 1958 SC 838 (Bishan Singh v. Khazan Singh) and Radhakishan Laxminarayan Toshniwal (supra) it is held if a landless purchaser is not allowed the protection it may mean, taking the matter to its logical conclusion, that he cannot acquire any land and such purchaser shall remain landless. At this stage, this Court may also notice that the said issue was raised in the writ proceeding and considered by this Court in the case of Bharat Prasad & Anr. Vs. The State of Bihar & Ors. since reported in 2005(2) PLJR 24. Para 3, 4 and 7 of the said report may usefully be quoted thus:- “3. In para-7 of the writ application a genealogical table of the petitioner‟s family has been given to show that Bigu Mahto and Prasad Mahto were the grand-fathers of the petitioners. The land was recorded in the name of Ram Narayan Mahto, Great Grand- 7 father of the petitioners. Even if it is accepted that Ram Narayan Mahto was recorded tenant of 6 bighas 19 kathas 33 dhoors of land, considering the genealogical table, petitioners will get less than 1 acre of land after partition in the family. Since the petitioners possessed less than one acre land, they come within the definition of landless persons, under the provisions of Sub-section (4) of section 27 the Act. Sub-Section (4) of section 27 relates to the distribution of surplus land among the persons who are landless, a member of Scheduled Caste and Scheduled Tribe and others. A landless person has been defined as a person possessing less than one acre land. Relying on this definition it has been submitted by the petitioners that they are landless persons, having less that one acre land. The pre- emption application is not maintainable if the transferee is landless. Regarding the nature of the land also they have placed reliance on the report submitted by the Circle Officer wherein it has been stated that in the vicinity of the vended land there are several houses and it can be utilized for residential purposes. 4. A counter-affidavit has been filed by respondent no.7. Annexure-A to the counter- affidavit is khatian of the land possessed by the ancestors of the petitioners. Khatian has been annexed to show that the petitioners are not landless persons, and the pre-emption application is maintainable. To prove respondent no.7 as adjacent raiyat, reliance has been placed on the details of boundary of the vended plot given in the sale deed. 7. Finding given by the Addl. Member Board of Revenue, if accepted that grandfather of the petitioners held 5 bighas of land, in that case also the petitioners cannot be held to be persons not coming within the definition of landless persons as provided under sub-section (4) of section 27 of the Act. So far the nature of the land is concerned, whether it is homestead or agricultural, it is difficult to decide as the real meaning of „Goenda‟ has not been proved by the parties by any authentic document. Without giving any finding on the nature of the land, simply, on this ground that 8 the petitioners are covered within the definition of landless persons, I come to the conclusion that the application of respondent no.7 under section 16(3) of the Act was not maintainable. The finding recorded by the D.C.L.R. and Addl. Member Board of Revenue are against the provisions under Section 16(3) of the Act. They totally ignored this fact that the petitioners are landless persons and pre-emption application cannot be maintained against a landless person.” The respondents except raising an objection that such issue was not raised in the Court below did not bring to the notice of this Court that the writ petitioners owned adequate lands and as such they are not landless as found and discussed in para 3 of Bharat Prasad(Supra). Said objection of the respondents loses its relevance in view of liberty granted to the parties by this Court while remitting the case back to the revisional authority for re-consideration of the matter. The said issue was pointedly raised by the writ petitioners and was not denied by the pre-emptor (respondent no.5) by filing rejoinder thereto and/or bringing on record documents indicating that the writ petitioners are not the landless and/or that they hold land to their credit in addition to what had been asserted in the supplementary affidavit filed before the revisional Court. This Court, in view of the ratio laid down in the case of Nathuni Singh Yadav and Bharat Prasad(supra) is inclined to interfere with the order impugned passed by respondent revisional Court. For the reasons noted above, the application is allowed. 9 The order dated 02.02.2010(Annexure-6) passed by respondent Additional Member, Board of Revenue, Patna in Pre-emption case no. 93 of 1999 is quashed and set aside. The right of pre- emption raised by respondent no.5 fails. There shall be no order as to costs. Sym/ ( Kishore K. Mandal, J.)