IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12733 of 2003 1. KAMIL HUSSAIN KHAN, SON OF AHMAD HUSSAIN KHAN, RESIDENT OF VILLAGE BHALPATTI TOLE-NAINAGHAT, P.O. NAINAGHAT, P.S. SADAR, DISTRICT DARBHANGA. 2. MANZAR HUSSAIN KHAN 3. AMIR HUSSAIN KHAN 4. NASIR HUSSAIN KHAN 5. AZHAR HUSSAIN KHAN ALL ARE MINOR SONS OF KAMIL HUSSAIN KHAN, RESIDENT OF VILLAGE BHALPATTI TOLE-NAINAGHAT, P.O. NAINAGHAT, P.S. SADAR, DISTRICT DARBHANGA UNDER THE GUARDIANSHIP OF THEIR FATHER KAMIL HUSSAIN KHAN. ---------------------------------------------------------------------------------------------- PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE ADDITIONAL MEMBER, BOARD OF REVENUE, PATNA. 3. THE COLLECTOR, DARBHANGA, DISTRICT DARBHANGA. 4. THE DEPUTY COLLECTOR LAND REFORMS DARBHANGA, DISTRICT DARBHANGA. 5(i) RAJI AHMAD KHAN 5(ii) RAFI AHMAD KHAN 5(iii) WALI AHMAD KHAN SONS OF LATE AMIR HASSAN KHAN, RESIDENT OF VILLAGE BHALPATTI TOLA- NAINAGHAT, P.O. NAINAGHAT, P.S. SADAR, DISTRICT DARBHANGA. 5(iv) RABIYA KHATOON, DAUGHTER OF LATE AMIR HASSAN KHAN, WIFE OF LATE MAHMOOD ALAM KHAN, RESIDENT OF VILLAGE KARHARI, P.O. AHILWARA, DISTRICT DARBHANGA. 5(v) NAJAMA KHATOON, DAUGHTER OF LATE AMIR HASSAN KHAN, WIFE OF ANJAR AHMAD KHAN, RESIDENT OF VILLAGE AND P.O. AHILWARA VIA- BIRAUL, DISTRICT DARBHANGA. 5(vi) GOURI KHATOON, DAUGHER OF LATE AMIR HASSAN KHAN, WIFE OF SAMSUJAMA KHAN, RESIDENT OF VILLAGE KARHARI, P.O. AHILWARA VIA- BIRAUL, DISTRICT DARBHANGA. 5(vii) ASAMA KHATOON, WIFE OF ASHARAFUL ISLAM KHAN ALIAS LADALA, RESIDENT OF VILLAGE AND POST NAINAGHAT VIA SAKARI, P.S. SADAR, DISTRICT DARBHANGA. 6. MD. SAYEED KHAN, SON OF SABIR ALI KHAN 7. MD. MURTAJA KHAN, SON OF LATE ZAHID ALI KHAN 8. BIBI JAHANI BEGUM, WIFE OF MD. MURTAJA KHAN RESPONDENT NOS. 6 TO 8 ARE RESIDENT OF VILLAGE BHULPATTI TOLE- NAINAGHAT, P.O. NAINAGHAT, P.S. SADAR, DISTRICT DARBHANGA. -------------------------------------------------------------------------------------------- RESPONDENTS For the petitioners :- Mr. Vishwanath Singh, Sr. Advocate Mr. Nand Kishore Singh, Advocate For respondents :- Mr. Yogendra Mishra, Advocate Md. Shahnawaz Ali, Advocate ************ 2 6 13.1.2011 Petitioners are the purchasers of 5 Kathas and 9 Dhurs of land of C.S. Plot No. 6215, 6216, 6217 and 6218 of Khata No. 839 corresponding to R.S. Plot No. 10978, 10979 and 10980 situated at village Bhalpatti, Tola Nainaghat, P.S. Sadar, District Darbhanga. Respondent nos. 6 to 8 are the vendors and respondent no. 5 is the pre-emptor. The petitioner Kamil Hussain Khan along with his minor sons petitioners 2 to 5 negotiated for the sale of the land. The vendor executed five sale deeds in the names of all the petitioners on 1.12.2000 registered on 4.12.2000, the total area being 5 Kathas and 9 Dhurs. Each of the sale deed covered an area 1 Katha and 1 Dhur of land. Petitioner nos. 2 to 4 were minors on the relevant date and as such the sale deeds were executed by the father petitioner no. 1 as the natural guardian of petitioner nos. 2 to 5. After the purchase, the petitioner no. 1 gifted orally all the lands to his children and came into joint possession with his children being the guardian of the sons over the said lands. Five different pre-emption applications were filed by respondent no. 5. It is the specific case of the pre-emptor that they are holders of lands namely Plot Nos. 6216, 6217 and 6219, which are contagious to the land sold to the petitioners, and as such they claim to be boundary raiyats, and were entitled to file the applications for pre-emption, on the other hand the case of the petitioners is that they have a piece of land appertaining to Plot No. 622 which in the boundary of Plot No. 6215 and as such the 3 provision 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‟) would not be applicable in the case. In the said sale deed it has been specifically mentioned that lands have been purchased for residential purposes and after execution of the sale deed, the petitioners have built their houses and are living in the said houses. The D.C.L.R. by order contained in annxure-1 dated 19.11.2001 dismissed the pre-emption application of respondent no. 5. The respondent no. 5 filed an appeal before the Additional Collector. During the pendency of the aforesaid ceiling appeals, the respondent no. 5 filed Misc. Case No. 102/2001-02 in the Court of the Collector, Darbhanga, on 16.1.2002, calling for the records of the said ceiling appeals from the Court of the learned Additional Collector, Darbhanga. It is relevant to state here that the vendors were not made party in the miscellaneous case. Thereafter on 22.1.2002 the Collector called for the records and the next date fixed in the matter was on 12.2.2002 (annexure-12). Notice was issued and the date was fixed on 11.3.2002. On 9.4.2002 both the parties appeared and the case was adjourned to 10.6.2002. On 10.6.2002 the Bench Clerk is said to have informed the petitioner that the order has been passed on 6.6.2002 (although Annexure-12 shows that the date had been fixed on 6.6.2002). The Collector by his order dated 6.6.2002 found that the pre- emption application was maintainable and allowed the application. 4 The petitioner thereafter filed a revision application before the Member, Board of Revenue which was allowed in favour of respondent no. 5. The D.C.L.R. has rejected the pre-emption application on the basis of the fact, that the sale deed in question indicates that the petitioner no. 1 is boundary raiyat to the vended land and has relied on a decision reported in 1997(1)PLJR 848 (Nathuni Singh Yadav & Anr. Vs. The State of Bihar & Ors.). For the purposes of substantiating the stand of the petitioners, I would like to discuss this decision at this stage to put an end to any controversy which may arise with respect to the case law cited. The discussion aforesaid is an authority on the point that the purchaser had raised a claim that he was a landless person and, therefore, the provisions of 16(3) would not apply in his case. The Court held that a landless person cannot be denied to be a landholder, or else it would be unjust and inequitable. This case does not help the pre- emptor at all, rather it is in favour of the purchaser on several issues raised in the writ application aforesaid. The Collector came to the conclusion that the petitioners are not boundary raiyat and, therefore, has allowed the pre-emption application of respondent no. 5. Similarly the Board of Revenue has found that the lands in question, have been described in the Khatiyan as agricultural lands and, therefore, has disbelieved the case of the petitioners that the lands were purchased for residential purposes. It has further been held by the Board of Revenue that the petitioners have not controverted the 5 stand of the pre-emptor that Plot No. 6221 is not on the boundary of the vended land and on the basis of the aforesaid two findings has upheld the order of the Collector, Darbhanga. The points which have been raised in this case by the parties are (i) Whether the pre-emptor being a boundary raiyat is entitled to get the sale deed registered in his favour after paying 10% above the consideration amount and whether the petitioners are in the boundary of the vended land? (ii) What is the nature of the lands and whether the vendees have already made construction on the vended land? (iii) Whether the Member, Board of Revenue has considered the documents of the petitioners before passing the order impugned and (iv) Whether the Collector had violated the principles of natural justice by not issuing a separate notice before converting the Miscellaneous Case into an appeal? Nature of lands Counsel for the petitioners submits that in the sale deed, there is specific pleading that the vended land has been purchased for residential purposes. It has specifically been pleaded at paragraph 7 that the sons of the petitioner no. 1 do not possess or own any other land except the land which is subject matter of the sale deed and the land was required for building a residential house for each of the sons. The petitioners have spent a huge amount of money in filling up the land and have constructed residential houses over portion of it in which all of them are residing. The lands acquired are in the western boundary of Plot no. 6221 which belongs to petitioner no. 1. The counsel appearing 6 on behalf of the respondents on the other hand submits that the fact that the petitioners have shown himself to be on the boundary in the sale deed is not binding upon the petitioners. It is further submitted that the Khatiyan of the vended land would indicate that the lands in question are Dhanhar in nature. It is well established that the nature of the land changes with time. The fact that the plots transferred are small plots of land being 1 Katha 2 Dhurs in the name of each of the sons of petitioner no. 1 and the total land transferred is only 5 Kathas and 9 Dhurs would indicate, that such small plot of land can hardly be used for agricultural purposes. Moreover, the fact is that the petitioners have built their houses on vended plot and are residing on the vended lands which has been pleaded at paragraph 17 and is not denied in the counter affidavit. Respondent no. 5 has merely stated that there are submissions before the Court and need no reply. Similarly in the rejoinder on behalf of respondent no. 5 (substituted heirs) to the reply filed by the petitioners at paragraph 7 indicates that “It is stated that the writ petitioners have got residential houses in the mid of the village but the land in dispute is an agricultural land”, meaning thereby that they have accepted the case of the petitioner that they have constructed house on portion of the land and are residing in the house so constructed. It is submitted by the petitioner that even if it is accepted that the lands are agricultural in nature, for the sake of argument, there is no bar to building a residential house on a piece of land which is surrounded by agricultural land, although there is no finding that 7 vended land is surrounded by agricultural land. It would also not be proper to dislodge the petitioners who have constructed a house and are residing in it for the past ten years. I may refer to a decision of this Court in the case of Jagarnath Sah Vs. State [2008 (1) PLJR 142]. The lands in dispute were originally agricultural lands, in the sale deed it was indicated that the lands have been purchased for residential purposes. This Court held that considering the nature of land, which was fellow lands (low lying), such land would not come within the purview of 16(3) of the Act. The present case is on a better footing as the lands in question has not only been purchased for building a residential house, but the area of the land is so small that it is incapable of being used for agricultural purposes. VIOLATION OF NATURAL JUSTICE Referring to the order passed by the Collector and the Member Board of Revenue, the submission of the petitioners is that the Collector ought to have given notice to the petitioners and passed an order converting the miscellaneous case into an appeal before proceeding in the matter. It has also been submitted that the petitioner did not get an opportunity to be heard, which would be apparent from the order of the Collector. On perusal of annexure-12 it appears that the petitioner, after receiving notice remained absent for several dates. In the facts therefore, some prejudice may have initially been caused to the petitioners, however, the petitioners had full opportunity to challenge the findings of the Collector, 8 Darbhanga, before the Member, Board of Revenue and as such this Court is not inclined at this stage to interfere on the ground that the matter should be remanded because the petitioners did not get an opportunity before the Collector, Darbhanga to place their case. NON CONSIDERATION OF DOCUMENTS The third issue is whether the Member, Board of Revenue has considered the documents filed on behalf of the petitioners, the order reveals that in fact the documents of the petitioners were not considered and the revision has been disposed of without referring to these documents. This Court would remand the matter back to the Member, Board of Revenue to consider afresh the documents, that have been filed on behalf of the petitioners and meet the arguments raised on the basis of submission of those documents. However, since the respondent no. 5 and petitioners have produced all the documents, they intend to rely upon, this Court has decided the matter as both the parties, have made elaborate arguments with respect to the merits of their case before this Court. Therefore, the submission of the petitioner that the matter ought to be remanded for re-consideration by the Board is rejected. BOUNDARY RAIYAT The most important issue is whether the application of pre-emption of respondent no. 5 should be allowed on the ground that he is a boundary raiyat to the vended lands and whether the petitioners‟ case that they are also in the boundary of the vended 9 lands is justified. For supporting their respective stands the cadastral survey and revisional survey map has been brought on record as annexures 6 and 7 to the writ application. The petitioners had submitted before this Court that in fact the respondent no. 5 had sold portion of Plot No. 6216, 6217 and 6215 for which purpose he has produced the sale deed. The counsel for the respondents on the other hand submits that in fact the respondent had not sold the said plots of land (which are in the boundary of the vended land) rather he had exchanged the lands by a document which has been filed by an affidavit filed on 27.7.2010 which would indicate that it is a document of exchange, the lands in question tally with the lands which are in the boundary of the vended plot and, therefore, the respondents are boundary raiyat. I do not think that this aspect of the matter can be disputed. The respondent no. 5 had a right to maintain to pre-emption application as he was a boundary raiyat, but the right is dependent on several factors and his claim can be defeated on the ground that the purchaser is also in the boundary of the disputed land, the nature of the land, or on other legal grounds as would be apparent in this case. The cadastral map (Annexure-6) and the revisional map are both on record. From close perusal of the map, it may be noticed that Plot No. 6221 touches the boundary of the vended plot 6215. It has been held in the case of Employees By dih colliery Vs. Madan Chatterjee (AIR 1967 Pat 434) that the vendor may demonstrate before the Court that he has lands in the boundary of 10 the vended land. The length of the boundary is not a relevant factor for the purpose of declaring a person to be a boundary raiyat. Even if a small portion touches the boundary of the vended land, it is sufficient, to hold that the purchaser is also on the lands purchased by him. This Court, therefore, quashes the order of the Member, Board of Revenue dated 1.11.2003 and the order of the Collector, Darbhanga in favour of the pre-emptor, for the reasons and the grounds stated aforesaid. This writ application is allowed. Sanjay ( Sheema Ali Khan, J.)