CIVIL WRIT JURISDICTION CASE No 1195 OF 2008 *** In the matter of an application under Article 226 of the Constitution of India. *** Ghanshyam Chaudhary, son of late Chandrika Chaudhary, Village – Gijas, P S – Saraiya, District – Muzaffarpur at present residing at New Colony – Chainpur @ Sir Ganesh Dutt Nagar, P S – Kanti, P O – Damodarpur, District – Muzaffarpur - Petitioner Versus 1 The State of Bihar through the Secretary, Land Reforms and Revenue, Old Secretariat Building, Harding Road, Patna – 800 001 2 The Additional Member, Board of Revenue, Bihar, Old Secretariat Building, Harding Road, Patna – 800 001 3 The Collector, Muzaffarpur 4 The Land Reforms Deputy Collector, Muzaffarpur (West) 5 Rambha Sharma, wife of Shri Arjun Prasad Sharma, resident of Village – Kaituka Nandan, P S – Parasa, District – Saran, present residing at New Colony – Chainpur @ Sir Ganesh Dutt Nagar, P O – Damodarpur, P S – Kanti, District – Muzaffarpur 6 Mahendra Kumar 7 Ram Naresh Kumar, sons of late Gaurishankar Kumar, residents of village – Jagdishpur, P S – Sahebganj, District – Muzaffarpur - Respondents *** For the petitioner : M/s Madhav Roy, Kanti Jha, Navin Kr, Advocates For the S t a t e : Kumari Amrita, SC (C) 5 For respondent No 5 : M/s V Nath, Ashok Kumar, Sandip Singh, Advocates *** P R E S E N T THE HON'BLE MR JUSTICE NAVANITI PRASAD SINGH Navaniti Prasad Singh, J The petitioner had purchased 11 dhurs (slightly more than ½ katha) of land on 10.09.2001 which has become subject matter of pre-emption by respondent No 5 who had purchased 10 dhurs (exactly ½ katha) of land on 23.06.1998. Upon petitioner’s purchase, the application for pre-emption was disallowed and the appeal against that 2 was also dismissed but the Board of Revenue, in revision, set aside the orders and allowed the pre-emption application which was then set aside by this Court and the matter remanded to Board of Revenue. The Board of Revenue again examined the matter and, based on the inspection report obtained, passed the impugned order on 01.12.2007 which is now being challenged. Parties have appeared and have been heard. The facts are not very much in dispute. On 19.02.1988, the vendor of petitioner and the vendor of respondent No 5 purchased 11 dhurs and 10 dhurs of land each. This land is situated just at the periphery of Muzaffarpur Town what is now known as Chainpur, an area which is urbanised and from the large chunk of land which was held by the earlier raiyat, he had carved out small plots which he was selling and people buying essentially as a part of colonisation. Respondent No 5 purchased from her vendor the said 10 dhurs of land on 23.06.1998 (approximately 968 square feet or 107 square yards) though the sale deed shows that it was a purchase from a raiyat meaning an agricultural tenant for agricultural purpose but it is not in dispute that upon inspection, it was found that it contained the pucca house of respondent No 5 on substantial part thereof. When petitioner purchased the land, it was vacant and similar narration is there in the sale deed that it was raiyati land but one other fact remains that it is on the periphery of Muzaffarpur Town and in a totally urbanised area. The two Courts below have held consistently that the purchase of respondent No 5 was in fact for residence. It was an urbanised area. From large chunk of land, small plots for residence were being sold that is what was purchased by respondent No 5 and petitioner and, as such, pre-emption application could not be entertained. Ultimately, the Board of Revenue has reversed those findings and has 3 held that when the plot was purchased by the petitioner, it was capable of agricultural operation. It was raiyati land. The land of respondent No 5 would be a homestead land and, thus, pre-emption application would lie and, he, as such, allowed the same. Shri Madhav Roy appearing for the petitioner states that before applying the provisions of Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, one has to see whether it is essentially an agriculture land. Section 16 (3) is a part of law dealing with consolidation of agricultural tenancy. The Act deals with agricultural tenancies and includes homestead land as a part of tenancy. Before a property can be described as homestead land, one must establish its connection with agricultural lands. An isolated house on a small land in an urbanised area cannot be termed as homestead land. To the contrary, learned counsel for respondent No 5 submits that the finding of fact given by the Board of Revenue is final and cannot be interfered with by this Court. That being so, the writ petition should be dismissed. Having heard the parties and considered the matter, in my view, the writ petition must succeed. There are two things to be kept in mind while dealing with such matters. First, pre-emption is not an inherent right but a statutory right and, as has been consistently held, it is a very weak right. Second, it is meant to apply to agricultural lands and tenancies. Keeping these two principles in mind, if we see the facts, it would be seen that it was never the intention of the legislature to cover such transactions as are available in the present case. It is not in dispute that the area where the land is situated is at the periphery of Muzaffarpur Town and was known as New Colony, Chainpur. It is urbanised area. The land was a part of over 1 and ½ acres of agricultural 4 land which had been plotted into small plots of about 100 square yards, a piece and was being sold by the said raiyat. What is not in dispute and is also available on records that respondent No 5, who had earlier purchased the land, has built her pucca house on substantial portion thereof. The land is only 10 dhurs that is about a 100 square yards. Can a land by itself of 100 square yards having a pucca house thereon on substantial part thereof in an urbanised area be termed as homestead land? The answer must be no. It is not an adjunct to any agricultural land. Similarly, so far as petitioner is concerned, he had also purchased about slightly 100 square yards of land in the same New Colony, Chainpur which is now known as Sir Ganesh Dutt Nagar and till he constructed his house. It was capable of being put to agricultural use. From the nature of holding, it is apparent that the holding was more domestic than agricultural though originally they were capable of agricultural operations but that was not the purpose in an urbanised area. Thus, in my view, the Board of Revenue has erred in law in holding that as the lands were originally part of agricultural tenancy, the pre-emption law, as applicable to agricultural tenancy, would apply for the object of the law was not to allow pre- emption of urbanised land and that being so, I have no option but to set aside the order of Board of Revenue and allow this writ application accordingly. (Navaniti Prasad Singh) Patna High Court, The 06th April, 2010, N A F R M E Haque/