1 CIVIL WRIT JURISDICTION CASE No.8888 OF 1991 (In the matter of an application under Articles 226 and 227 of the Constitution of India) SHITAL PD. CHOUDHARY, son of Surya Nath Prasad Choudhary, resident of Mohalla Mauna, PS Chapra town, District Saran Versus 1(a) Smt. Usha Dalmiya wife of Shri Shiv Ram Dayal Dalmiya, resident at K P Road, P O & Distt. Gaya & Others 2. Smt.Shashikala Poddar w/o Jagdish Kumar Poddar 3. Harsh Vardhan Kumar Poddar 4. Gyan Vardhan Poddar All sons of Ram Gobind Poddar All residents of Mohalla Bhagwan Bazar, PS Bhagwan Bazar, District Saran (Pre-emptors) … Respondents 1st set 5. Jharna Prasad wife of Ranjit Prasad 6. Ranjit Prasad son of late Tinkauri Ram Both residents of Mohalla Salawatganj, Gudri Bazar, PS Bhagwan Bazar, District Saran (Vendors) …. Respondents 2nd set 7. Additional Member, Board of Revenue, Bihar, Patna 8. Additional Collector, Saran at Chapra 9. Deputy Collector, Land Reforms, Chapra PS Chapra, District Saran ….Respondents 3rd set Respondents with CWJC No.8889 of 1991 SHITAL PD. CHOUDHARY……….. Petitioner versus RAM GOBIND PODDAR & ORS ………………..Respondents with CWJC No.148 of 1992 PANPATI DEVI……….. Petitioner Versus STATE & ORS-……………………Respondents with CWJC No.149 of 1992 PANPATI DEVI…………………Petitioner Versus STATE & ORS………………….. Respondents CWJC No.168 of 1992 VIDYADHARI DEVI………………. Petitioner Versus STATE & ORS ………………..Respondents with CWJC No.764 of 1992 SMT.SUDHA DEVI………………….Petitioner Versus RAM GOVIND PODDAR & ORS ……….. Respondents with CWJC No.2560 of 1992 SMT.SHILA DEVI……………… Petitioner Versus STATE & ORS………………………..Respondents 2 with CWJC No.2561 of 1992 BINAY KUMAR CHAUDHARY & ANR……. Petitioners Versus STATE & ORS……………. Respondents with CWJC No.2563 of 1992 ASHOK KUMAR CHAUDHARY…………… Petitioner Versus STATE & ORS……………….. Respondents with CWJC No.2567 of 1992 ASHIK KUMAR CHAUDHARY……………. Petitioner versus STATE OF BIHAR…………………………..Respondents with CWJC No.2568 of 1992 SMT. GEETA DEVI………………….. Petitioner Versus STATE OF BIHAR & ORS…………..Respondents CWJC No.2586 of 1992 BINAY KR. CHAUDHARY @ BINAY PD………..Petitioner Versus STATE OF BIHAR & ORS ………………..Respondents with CWJC No.9691 of 1992 PANPATI DEVI & ORS…………… Petitioners .Versus RAM GOBIND PODDAR & ORS …… Respondents with CWJC No.9744 of 1992 DHANANJAY KUMAR…………….Petitioner Versus RAM GOBIND PODDAR & ORSS……Respondents ************** For the Petitioners: Mr. M N Parbat (In all the cases) For private respondents : Mr. Nand Kishore Singh Mr. Shailendra Kumar For the State : Mr. Harendra Prasad Singh Govt. Advocate No.VI Mr. Deepak Sahay Jamuar, Assistant Counsel to GA No.VI Learned Standing Counsel II (Ceiling) 3 P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S K Katriar & Kishore K Mandal, JJ. This batch of 14 writ petitions arise out of a common order dated 7.8.91, passed by the learned Additional Member, Board of Revenue, whereby he has rejected the revision application preferred by the present petitioner. The same arise out of proceedings under Section 16(3) of the Bihar Land Ceiling Act (hereinafter referred to as `the Act’). In all the writ petitions, the purchasers are the petitioners, respondent nos. 1 to 4 are the same persons seeking pre-emption with respect to the land in question, and respondent nos. 5 and 6 are the vendors. CWJC No. 8888 of 1991 and CWJC No.8889 of 1991 are at the instance of the same person, being the purchaser, and seek to dispel the right of pre-emption hitherto allowed by the consistent orders of the authorities below. We shall however draw the basic facts from CWJC No.8888 of 1991, except by specific reference to another proceeding. It is relevant to state here that respondent no.1 (Ram Gobind Poddar) died during the pendency of the present proceeding and has been substituted by his heirs. 2. A brief statements of facts essential for the disposal of the writ petition may be indicated. They had right, title, and interest of holding no.809, covering 5 bighas, 15 dhurs of land, in or on the outskirts of the township of Chapra. The present batch of writ petitions are with respect to 1/4th of the same, i.e. only 1 bigha, 5 katha, 4 dhurs of land. Respondent nos. 5 and 6 had parcelled out the same in 14 equal plots, each covering 1 kath, 8 dhurs. By sale deed executed on 21.7.87, and registered on 5.10.87, respondent nos. 5 and 6 had alienated a small portion of holding no.809 covering an area of 1 katha, 8 dhurs (approx.), in favour of the petitioner. Respondent nos. 1 to 4 filed an application under Section 16(3) of the Act, which was allowed by the order dated 8.10.89, passed by the learned Land Reforms Deputy Collector, Chapra. He found that the purchaser (the petitioner herein) is neither a co-sharer nor an adjoining raiyat, whereas the pre-emptors are adjoining raiyats of holding no.809 on the eastern side as well as the western side of the 4 plot in question. He has treated entire holding no.809 as one block of land. The appeal preferred by the purchaser was dismissed by the learned Additional Collector, Saran, Chapra, by a common order dated 30.6.90, and affirmed the findings of facts recorded by the learned first two authorities below. The revision application preferred by the purchaser in terms of Section 32 of the Act has been rejected by the impugned order. Hence this writ petition at the instance of the purchaser. 3. CWJC No. 8889 of 1991 is concerned with one such plot, adjoining to the one in question in CWJC No.8888 of 1991. The sale deed of which was executed on 1.8.87 and was registered on 19.10.87. 4. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the petitioner of CWJC No. 8888 of 1991 acquired right to the portion of the land by sale deed executed on 21.7.87, which was registered on 5.10.87. In view of this purchase, his later purchase by sale deed executed on 1.8.87, and registered on 19.10.87, in CWJC No. 8889 of 1991, he became an adjoining raiyat. He next submits that the petitioners have purchased small plots of land for construction of their homestead which, if allowed to be pre-empted, will deprive small persons of home and hearth. He relies on a Division Bench judgment of this Court in Nathuni Singh Yadav vs. State of Bihar [1997(2) PLJR 287). He submits in the same vein that Panpati Devi had similarly purchased two portions of the land which are the subject matter of CWJC No. 149 of 1992 and CWJC No. 9691of 1992. Learned counsel for the petitioners further submits that the vendors had created private rasta 10 feet wide on both the sides of which the plots were created for sale and purchase by different writ petitioners. This position, in his submission, is sufficient to defeat the right of pre-emption. 5. Learned counsel for respondent nos. 1 to 4 (the pre-emptors) has supported the impugned order and submits that the story of private rasta has not been set up before the authorities below, being an issue of fact. He next submits that the lands in question are not agricultural lands. He submits in the same vein that the purpose of sale or purchase is not a determining factor for the purpose of adjudication under Section 16(3) of the Act. It is the nature of the land which is relevant. He relies on the judgment of a Division Bench of this Court in Hiralal Chauhan v. State of Bihar [2004(2) PLJR 339]. He also relies on the following reported judgments of the Supreme Court:- 5 (i) AIR 1999 SC 1093 (Om Prakash Agarwal v. Behara) (ii) AIR 2006 SCW 4665 (Asharafi Singh v. Kapildeo Rai) 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. The three authorities have concurrently found that the lands in question are agricultural in nature and covered by the provisions of Section 16(3) of the Act. We, therefore, do not wish to pursue this matter any further. 7. It appears to us on a perusal of the materials on record that the vendors had the right, title, and interest of holding no.809, which covered a total area of 5 bighas and 15 dhurs. We are concerned only with one-fourth of the same which covers an area of 1 bigha, 5 kathas, and 4 dhurs of land which has given rise to this batch of 14 writ petitions. The vendors had carved out small plots of the same (1 bigha, 5 kathas, and 4 dhurs) and divided them into 14 blocks, each covering 1 katha and 8 dhurs. In view of the nature of the order that we are going to pass, we do not consider it relevant to decide the question of existence of rasta. By 14 different sale deeds executed and registered on separate dates, the lands were transferred in favour of the writ petitioners. As stated hereinabove, Shital Prasad Choudhary, the present petitioner, purchased two plots of land adjoining each other. Similarly, Panpati Devi purchased two plots of land adjoining each other. In view of the materials on record, we are convinced that the various writ petitioners had purchased the plots of land for construction of their own home and hearth each covering 1 katha, 8 dhurs. We are, therefore, of the view that the present case is covered by the Division Bench judgment of the Supreme Court in Nathuni Singh Yadav (supra), paragraphs 6 and 7 of which are reproduced hereinbelow for the facility of quick reference:- “6. In Mukhi Mali v. State of Bihar (1997 BBCJ 151) it has been held that application for pre-emption will lie only when all the three parties, the transferor, the transferee and the pre-emptor are landholders. The following observation may be quoted from paragraph 8 of the judgment:- “In the case of Kamla Kant Goswami versus Balagobind Sah (1971 BLJR 974) it was held that the land must be a land which is either used or capable of being used for agricultural and horticultural purpose and even if it is homestead it must be of a land holder as defined in Section 2(g). It is very clear from the observations that if the land is not homestead of a land holder that is a raiyat engaged in agriculture it will not be a “land” within the meaning of the Act and the provision of Section 16(3) will not be applicable to it. This decision was affirmed later on by a Full Bench of this Court in Fakir Mohammad versus Salahuddin (AIR 1975 Patna 119) where the same view was expressed and it was observed that “homestead” must be a homestead of the land holder. In view of the above authoritative decisions it is not necessary to 6 dilate on the question inasmuch as on the facts it is clear that the vended land cannot be held to be a “land” of a land holder within the meaning of the Act and once it is so held the provision of Section 16(3) of the Act would have no application.” These observations were made in the context of vendor and not the vendee. But it is well known that right of pre-emption is a weak right which can be defeated by any legitimate means (See Bishan Singh v. Khazan Singh :AIR 1958 Supreme Court 838) “7. It should be kept in mind that the right of pre-emption, although created by statute, is a clog on the right of a person to acquire land. In Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi (AIR 1960 Supreme Court 1368) it has been observed: “There are no equities in favour of a pre-emptor, whose sole object is to obstruct a valid transaction by virtue of the rights created in him by statues.” If a landless purchaser is not allowed the protection it may mean, taking the matter to its logical conclusion, that he cannot acquire any land, for in the event any claim is made by a co-sharer or adjacent Raiyat of the land transferred, he cannot resist the claim as in terms of the provisions, only such persons who are either co-sharers or adjacent Raiyats can resist the claim. This would put him to an unjust and inequitable position.” It appears to us that attention of the learned authorities below was not invited to this aspect of the matter, namely, an area of 1 bigha, 5 kathas, and 4 dhurs were parceled out for creation of a small colony of the purchasers for construction of their homestead. We are, therefore, of the view that it would be an appropriate exercise of discretion to set aside the impugned order. 8. In the result, these fourteen writ petitions are allowed. The impugned order is set aside, and the application for pre-emption of respondent nos. 1 to 4 are hereby rejected. ( S K Katriar ) ( Kishore K Mandal) Patna High Court, Patna The 1st of December 2009 AFR/mrl