IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11453 of 2005 RADHIKA DEVI Versus THE STATE OF BIHAR & ORS WITH CWJC NO. 13067 of 2004 RADHIKA DEVI Versus THE STATE OF BIHAR & ORS ----------- 03 18.1.2008 Heard counsel for the petitioner, counsel for the state as well as counsel for respondent No.5. In both the writ applications, the petitioner pre- emptor has assailed a common order of the Addl. Member Board of revenue dated 5.6.2004 whereby and whereunder he has rejected the claim of pre-emption of the petitioner by allowing the two revision application filed by respondent No.5 being Revision Case No. 189 of 2003 and 190 of 2003 by setting aside the original and appellate orders dated 30.8.2002 and 16.8.2003 respectively in favour of the writ petitioner. Counsel for petitioner with reference to the impugned order passed by the Addl. Member Board of Revenue has basically raised three contentions: (i) The power and jurisdiction of revisional authority under Section 32 of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, hereinafter referred to as the ACL being circumscribed by the statutory restrictions he cannot substitute/impose his 2 opinion while upsetting finding of fact recorded by the original authority and/or appellate authority. In this regard he has placed reliance on the case of Ram Dular Vs. Dy. Director of Consolidation & ors reported in 1994 Suppl. Vol. II SC 198. (ii) The purchaser respondent No.5 being the boundary raiyat of all the plots in question, could not have defeated the claim of pre-emption of the petitioner who was admittedly adjoining raiyat of all such plots and thus the revisional authority while rejecting the claim of the petitioner has acted in breach of Section 16(3) of the Act. (iii) The Revisional authority while rejecting the claim of pre-emption of the petitioner has failed to appreciate that she had an enforceable right under Partition Act and thus when the two authorities under the Act had allowed her such claim, the same ought have not been interfered under Section 32 of the Act. Controverting the aforementioned submission, counsel for respondent no.5 has submitted that: (i) It is not correct to say that any finding of fact has been disturbed by the Addl. Member Board of Revenue or that Addl. Member Board of Revenue has exceeded the power vested in him while exercising revisional power under Section 32 of the Act. Explaining further he has submitted that there being no such restriction under Section 32 of the 3 Act, all the questions of fact and Law can be gone into and decided by the revisional authority. He has also submitted that the revisional authority in the present case has not committed any error in reversing the orders of pre-emption of first two authorities who in fact had allowed the claim of the writ petitioner by relying on a judgment of this Court which in fact had already been overruled and /or distinguished. (ii) With reference to the submission of the counsel for the petitioner on facts of the case it has been submitted that it is not correct to say that the writ petitioner is boundary raiyat of all plots land when from the sale deed in question it is apparent that the Respondent No.5 herself was boundary raiyat in respect of the two plots No 2002 and 2004. He has further submitted that the position in law by now is well settled that a pre-emptor in order to claim the pre-emption must be boundary raiyat of each and every plot and for this proposition he has placed reliance on the judgment of this Court in the case of Manti Devi & Ors Vs. State of Bihar & others reported in 2006 Vol.3 PLJR 33. (iii) Finally it has been submitted that what had been really not noticed by the original two authorities and in fact can still justify the rejection of the claim of the writ petitioner, pre-emptor, is that when the, purchase, respondent no.5 by virtue of an earlier sale deeds with regard to the two adjoining plots became adjoining raiyat, the claim 4 of pre-emptor could be easily defeated by such purchase or land by respondent no.5. In this connection he has relied on a judgment of this Court in the case of Jugeshwar Singh @ Sinha Vs. State of Bihar & Otrs. Reported in 2005 (2) PLJR 43. This Court on appreciation of the aforementioned submissions is of the view that the claim of pre-emption of Writ petitioner has been rightly rejected by the Addl. Member Board of Revenue on the ground that she was not adjoining raiyat of all plots. It is true that by virtue of being co-sharer in the adjoining plots of the land in question she had exercised her right of pre-emption but then if the purchaser the respondent no.5 herself had already the adjoining raiyat of the two contiguous plots of the land purchased by her, the right of pre-emption as against the her could not have been enforced by the writ petitioner in capacity of a co-sharer. In this context the provision under Section 16(3) of the Act itself makes its clear that the co- sharer will have no preferential right to an adjoining raiyat inasmuch as there is no option or alternative, mentioned in the section 16(3) of the act with regard to the enforcement of right of pre-emption. All that section 16(3) says that when any transfer of land is made to any person other than co- sharer or adjoining raiyat such co-sharer or adjoining raiyat can exercise right of pre-emption by seeking transfer of land 5 in his/her name on the same terms and conditions contained in the sale deed of the purchaser. A question however arises that when the purchaser himself or herself is adjoining raiyat of the land purchased by him or her can a right of pre-emption be claimed by co-sharer or another adjoining raiyat? This aspect of the matter, in my opinion has been correctly considered and decided in the impugned order by the revisional authority that once the purchase respondent no.5 had herself became adjoining raiyat of the plots in question being plots no. 2002, 2001, 2007 and 2093 by virtue another earlier sale deed dated 2.3.2000 executed in her favour by her sister for plot no. 2002 and 2004, the claim for pre-emption of the petitioner could not have been sustained as held by this Court in the case of Ram Prakash Singh Vs. The Addl. Member board of Revenue & ors reported in 19995 (i) PLJR 764. It must be noticed here itself that the said judgment of Ram Prakash (Supra) is based on an earlier judgment of this Court in the case of Ram Chabila Singh & Another Vs. Ram Sagar Singh reported in 1969 BLJR 203. Wherein it was held by the Division Bench that if the transferee happens to be adjoining raiyat in respect of some of the plots, the co-sharer cannot claim any right of pre- emption. In fact the judgment of Punit Rai and Another Vs. Addl. Member Board of Revenue and Otrs. Reported in 1985 6 PLJR 910 relied by the Court below for allowing the claim in favour of the petitioner is itself not a good law and is per incuriam as it has failed to notice that earlier binding precedent in the case of Ram Chabila (Supra). In that view of the matter when the law in this regard is well settled that right of pre-emption is a weak right and can be defeated by any legitimate means, the writ petitioner cannot claim a preferential right of pre-emption by virtue of being a co- sharer or adjoining raiyat of a few plots no. 2002,2004,2007,2093 on 26.1.2001. It is an admitted position that the respondent No.5 herself on the date of purchase of land was already a boundary raiyat of plots the two being plot no. 2002 and 2004 purchased by her on 2.3.2000 (Annexure-B to counter affidavit of respondent no.5) and as such no right of pre- emption could have been claimed against her by the writ petitioner as held by this Court in a series of decisions including Ram Chhabila (Supra) and Ram Prakash (Supra). The case of the respondent no.5 in fact is at a better footing as in her case she had became boundary raiyat of plots no. 2002 and 2004 way back on 2.3.2000 where as this Court in the case of Ram Roop Yadav Vs. State of Bihar & Ors. reported in 1987 PLJR 455 and reiterated in the judgment of this Court in the case of Jugeshwar Singh @ Sinha Vs. State of Bihar 2005(1) PLJR 43 has held that such claim of pre- 7 emption can be defeated by the purchaser by acquiring the status of boundary raiyat by different sale deed of the same day. The submission of the counsel for the petitioner with regard to scope of the revisional power under Section 32 of the Act that the revisional authority is not entitled to set aside a finding of fact and cannot take an altogether different view and must confine itself to the legality or propriety of the orders passed by the Court below is to be noticed by this Court only for its being rejected. Section 32 of the Act gives a wide power to the revisional authority and is not circumscribed or hedged by any restriction limiting the exercising jurisdiction only in respect of legality or propriety of the orders passed by the Court below as in the case of provisions of Section 397 of the Code of Criminal Procedure. This Court has already considered the scope of Section 32 in a large number of cases all of them unequivocally lay down a law that the Board of Revenue in exercise of revisional power under Section32 is vested with full jurisdiction to correct any illegality or propriety in the order passed by the Court below and it is a final Court of fact. Reference in this connection may be made to the judgment of this Court in the case of Faguni Ram Vrs. State of Bihar (2000) (2) PLJR 507, Kamleshwar Prasad Yadav Vrs. State of Bihar reported in 1986 Bihar Revenue Law Journal page 102, Radha Krishna 8 Prasad Sinha Verus State of Bihar 1980 BBCJ page 173 and Mahant Shiv Bacchan Jiri Vrs. State of Bihar 1977 PLJR 487. Thus, on a plain reading of Section 32 of the Act and the aforementioned judgment of this Court, it has to be held that the Board of Revenue in exercise of its revisional power under Section 32 of the Act is not only empowered to correct error of lack of jurisdiction or failure to exercise jurisdiction or other material irregularities. The Board of revenue is in fact a forum vested with full powers of appellate jurisdiction and can pass any order either on a question of fact or law being the final Court having power to reverse the appellate order passed under Section 30 of the Act. The reliance placed by the counsel for the petitioner on the judgment of the Apex Court in the case of Ram Dular (Supra) is wholly mis-placed because what was observed by the Apex Court was in relation to a different statute whose revisional power is not para-materia as in the Act. It has to be noticed that Ram Dular Case (Supra) was a case which had arisen out of Section 48 of U.P. Consolidation of Holding act, wherein it was clearly provided that the Director of Consolidation could only examine the proceeding decided by any subordinate authority for the limited purpose of satisfying himself as to the legality or the propriety of the orders passed by the subordinate authority under the consolidation Act. Thus, it was in terms of the 9 provisions of the statute that in Ramdular’s case (Supra) the Apex Court had taken a view that the order revision passed by the Deputy Director interfering on the question of facts as recorded by the Consolidation Officer was beyond the scope of Section 48 of Consolidation Act. As against the limitations in the revisional jurisdiction imposed under Section 48 of U.P. Consolidation of Holding Act, there is no such restriction or limitation imposed under Section 32 of the Act which says that a revision shall lie to the Board of Revenue from any appellate order and does not restrict or limit the power of Board of Revenue while exercising its revisional jurisdiction as with regard to only the legality of propriety of the orders passed by the Court below as in the case of Section 48 of U.P. Consolidation of Holding Act. Thus, having given anxious consideration , this Court is satisfied that the revisional order passed by the Addl. Member of the Board of Revenue in the present case does not suffer from any error and consequently calls for no interference by this court in exercise of its power under Article 226 of the Constitution. Both the writ applications thus being devoid of any merit are hereby dismissed. Shahid (Mihir Kumar Jha,J.)