IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10045 of 2004 1(i) MANISH KUMAR SHRIVASTAVA, SON OF LATE NARENDRA NATH SHRIVASTAVA AND GRAND SON OF LATE FANINDRA NATH SHRIVASTAVA. 1(ii) RAVISH KUMAR SHRIVASTAVA, SON OF LATE NARENDRA NATH SHRIVASTAVA, GRAND SON OF LATE FANINDRA NATH SHRIVASTAVA. BOTH RESIDENTS OF VILLAGE & P.O. BARHAN GOPAL, P.S. SIWAN TOWN, DISTRICT SIWAN. 1(iii) ARCHANA SHRIVASTAVA, WIFE OF ANAND KUMAR SHRIVASTAVA, GRAND DAUGHTER OF LATE FANINDRA NATH SHRIVASTAVA AND DAUGHTER OF LATE NARENDRA NATH SHRIVASTAVA, RESIDENT OF MOHALLA HUMAYUNPUR (SOUTH), NEAR SARASWATI BIDYA MANDIR SCHOOL, P.O. SADAR, P.S. KOTWALI, DISTRICT GORAKHPUR (U.P.)- 273 001. 1(iv) ANJANA SHRIVASTAVA, WIFE OF SHRI RAJIV RANJAN SHRIVASTAVA, DAUGHTER OF LATE NARENDRA NATH SHRIVASTAVA AND GRAND DAUGHTER OF LATE FANINDRA NATH SHRIVASTAVA, RESIDENT OF MOHALLA SUKH LAL NIWAS, NEW YARPUR, DISTRICT PATNA- 800 001. 1(v) SMT. MADHURI BALA SAHAY, DAUGHTER OF LATE FANINDRA NATH SHRIVASTAVA AND WIFE OF SHRI GANPAT SAHAY, RESIDENT OF ROAD NO. 10, BEHIND OF QUARTER NOS. 29 AND 30, P.S. ANISABAD, DISTRICT PATNA. --------------------------------------------------------------------------------------------------- PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE ADDITIONAL MEMBER BOARD OF REVENUE, BIHAR, PATNA. 3. THE COLLECTOR-CUM-DISTRICT MAGISTRATE, SIWAN. 4. THE D.C.L.R., SIWAN 5. BISHWANATH BHAGAT 6. RAM NARESH BHAGAT, BOTH SONS OF SHIVDHARI BHAGAT. RESIDENTS OF VILLAGE BARHAN GOPAL, P.S. SIWAN TOWN, P.O. BARHAN GOPAL, DISTRICT SIWAN. 7. VIJAY KUMAR SAHAY 8. BIRENDRA KUMAR SAHAY 9. ANAND KUMAR SAHAY 10. AJAY KUMAR SAHAY @ PAPPU ALL ARE SONS OF RAGHWENDRA PRASAD @ BACHA BABU, RESIDENT OF VILLAGE BARHAN GOPAL, P.O. BARHAN GOPAL, P.S. SIWAN TOWN, DISTRICT SIWAN. -------------------------------------------------------------------------------------------- RESPONDENTS ******** 6 15.11.2010 Petitioners have challenged the order, passed by the Member, Board of Revenue by which the revision filed by the purchaser has been 2 allowed by order dated 14.6.2004 for the reason that the lands in question was found to be a Homestead land. The petitioners filed a pre- emption application claiming that they are the boundary raiyats of the lands appertaining to Khata No. 477, Plot No. 2075 measuring 3 Kathas and 4 Dhurs. It is an admitted position that the petitioners are on the boundary of the lands purchased. The case of the purchasers on the other hand, is that they had purchased the land for the purposes of building their residential house as the nature of the land had changed. It is also the case of the respondent nos. 5 and 6 that the area of the land purchased is small, which would indicate that it cannot be used for any other purposes except for building a house. The D.C.L.R., Siwan and the Collector, Siwan, allowed the pre-emption application on the sole consideration that the petitioners were boundary raiyats. Respondent Nos. 5 and 6 have also been shown in the boundary of the vended land. I may point out here and it is more or less accepted by all persons that the respondent nos. 5 and 6 are also boundary raiyats to the disputed land. This aspect of 3 the matter has been challenged by the petitioners-pre-emptors on the ground that that it is said that a title suit is pending between the pre-emptor and the petitioners regarding the land which lies on the boundary of the disputed plot. The Court below got a local inspection made. The local inspection was made without notice to the purchasers respondent nos. 5 and 6. However, for the purposes of deciding the issues in this case, I find that even though the local inspection was ex-parte, it supports the case of respondent nos. 5 and 6 to the extent that the Circle Officer, Siwan has found that on spot verification, the petitioners have agricultural land, adjacent to the disputed land, there is also a Shiv Temple and a road which goes to the house of the petitioners on the western side, the petitioners have their second house closeby, whereas there is also a Pucca construction of Sheonath Bhagat on the eastern side of the disputed land. It would appear from the spot verification dated 18.5.1990 that there are several houses in the vicinity of the disputed land, apart from the residential houses, there is a Shiv Temple and 4 a Pucca road. All these facts indicate that the nature of the land, no longer can be treated to be fit for agriculture. Apart from the inspection note, this Court as well as the Member Board of Revenue has taken into consideration the fact that the lands purchased measure only 3 Kathas and 5 Dhurs which is a very small piece of land, the sale deed indicates that it was purchased for the purposes of construction of the house. It has been settled by several decisions of this Court, one of them being Hari Narayan Pandey Vs. State of Bihar & Ors. reported in 1994 (2) BLJR 774, wherein it has been held that if the land which was purchased for the purposes of construction of house, it can no longer to be treated to be cultivable land. Such land would be exempted from the mischief of Section 16(3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. In view of the discussions aforesaid, I find no illegality in the order passed by the Member, Board of Revenue. This writ application is, thus, dismissed. Sanjay ( Sheema Ali Khan, J.)