CIVIL WRIT JURISDICTION CASE No.1810 OF 1991 In the matter of an application under Articles 226 and 227 of the Constitution of India. 1. HARENDRA SINGH, SON OF LATE PRASHURAM SINGH 2. RADHIKA DEVI, WIFE OF SHRI HARENDRA SINGH 3. VYASH SINGH, SON OF HARENDRA SINGH ALL ARE RESIDENTS OF VILLAGE GANGPUR SISAWAN, P.S. SISAWAN, DISTRICT SIWAN. ----- PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE ADDITIONAL MEMBER BOARD OF REVENUE, BIHAR, PATNA. 3. THE ADDITIONAL COLLECTOR, SIWAN 4. DEPUTY COLLECTOR, LAND REFORMS, SIWAN 5(a) BHARAT SINGH (b) LAKASHMAN SINGH, BOTH SON OF LATE THAKUR SINGH, RESIDENT OF VILLAGE GANGPUR SISWAN, P.S. SISWAN, DISTRICT SIWAN 6. RAM JANAM MAHTO, SON OF BAJNATH MAHTO 7. RAMA MAHATO, SON OF SUCHIT MAHTO (RESPONDENT NOS. 6 AND 7 ARE VENDORS) RESPONDENT NOS. 5 TO 7 ARE RESIDENTS OF VILLAGE GANGPUR SISAWAN, P.S. SISAWAN, DISTRICT SIWAN. ----- RESPONDENTS For The Petitioner : MR. UDIT NR.SINGH, ADVOCATE For The State : SC 8 For Respondent No.5: SHIVAJI SINGH, ADVOCATE P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. The petitioners have challenged the order dated 20.7.1984 passed by the D.C.L.R., Siwan, the order dated 7.11.1989 passed by the Collector, Siwan and order dated 17.1.1991 passed by the Additional Member, Board of Revenue passed in a case under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. 2 2. The petitioners are the original purchaser whereas respondent no. 5 is the pre-emptor. Respondent nos. 6 and 7 are vendees of the land which is under dispute. Petitioners purchased 1 kattha 18 dhurs of Khata No. 424, Plot No. 1844 situated in village Gangpur Siswan, by three sale deeds executed on 16.3.1983 and registered on 25.1.1984 The sale deed with respect to 13 dhurs each were in the name of the petitioner no. 1 and his wife petitioner no. 2 whereas 12 dhurs of land were in the name of Vyas Singh their son. Respondent no. 5 filed an application for pre-emption on 3.2.1994 claiming to be a boundary raiyat of plot no. 1844. The D.C.L.R. allowed the respondent’s application for pre-emption which was challenged by the petitioners in appeal and revision which were dismissed. 3. It is not in dispute that the respondent no. 5 is a boundary raiyat. In fact it has been stated that the respondents possesses 3 katthas 15 dhurs of land pertaining to plot no. 1845 and 2 katthas and 10 dhurs of land pertaining to plot no. 1864 which is on the eastern boundary of plot no. 1844. Besides which he also possess land on the southern boundary pertaining to plot no. 2113. The only question that has been raised on behalf of the petitioners is that the lands which have been purchased by the three petitioners is very small measuring about 1 kattha and 18 dhurs. It is further stated that in the sale deed itself it has been mentioned that the lands have been purchased for the purposes of constructing a house and that the petitioners for the past 25 years have remained in possession of the 3 land and had built their huts on the land. It is submitted that this land cannot be used for agricultural purposes and, therefore, application for pre-emption should have been dismissed by all the Courts. 4. On perusal of the sale deed, it appears that in fact the lands have been purchased for the purposes of constructing the house. It is also apparent that 1 kattha and 18 dhurs can hardly be utilized for any agricultural purposes unless it is a piece of land which is pertaining to a larger plot of land which is being used for agricultural purposes. A single plot of land measuring 1 kattha 18 dhurs cannot be utilized for the purposes of agriculture and it is well settled by several judgments of this Court that a pre-emption application will only lie against lands which can be used for agricultural purposes. In support of the findings above, I would like to refer two judgments of this Court passed in the case of Vidya Prasad Singh Vs. The State of Bihar reported in 2010 (2) PLJR 17 (DB) in which the Court has held that where the land is described as land purchased for constructing a house, pre-emption would not be applicable to such lands. 5. In this case the purchaser has been in possession since a long period of time, i.e. the date of execution of the sale deed (1984), as such the provision of Section 16(3) of the Act cannot be invoked. This Court has also considered this aspect of the matter in the case of Vimla Devi Vs. The State of Bihar and Ors. reported in 1998 (1) PLJR 758 for holding that when the lands in question is situated in municipal area, it may be presumed that it is not agricultural land unless there is strong evidence to show otherwise. 4 The Supreme Court in the case of Gajadhar Prasad Choudhary Vs. State of Bihar reported in 1994 Supp (1) SCC 114 has held that if the lands in question are small pots of land, and also if the purchaser has remained in possession of the lands over a long period, it would not be proper to dispossess the person concerned. In the present case the petitioners has remained in possession of the lands since 1983, and as such it would not be proper for this court to dispossess the petitioners, keeping in view the facts of this case. 6. At this stage, counsel for the respondents submits that the respondent would not be able to assess his lands if the pre-emption application is allowed. This fact although not pleaded at any stage of the case seems a somewhat desperate argument, as such I am not inclined to consider this argument in this writ petition. 7. I accordingly quash the orders contained in annexures 1, 2 and 3. The writ application is allowed. Patna High Court, The 24th of June, 2010 N.A.F.R./Sanjay (Sheema Ali Khan, J.)