IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11626 of 2006 RAMAYAN SAH Versus THE STATE OF BIHAR & ORS ----------- Advocate for the petitioner:- Mr. Nagendra Roy, Advocate. For Respondent No.3: M/S. Abhimanyu Sharma & Udai Shankar Singh, Advocates. For Respondent No.5: Mr. Shambhu Sharan Singh, Advocate. For the State: Mr. Ajay, S.C.-3 (Ceiling) ---------- 5. 25.08.2008. Counter affidavit filed on behalf of the purchaser Respondent No. 3 is taken on record. 2. Heard learned counsel for the petitioner and the respondents. 3. Petitioner is the pre-emptor. He has filed this writ application assailing the order dated 29.07.2006 passed by the Additional Member Board of Revenue in Case No. 301 of 2005, as contained in Annexure-6, whereunder the appellate order dated 25.10.2005 passed in Land Ceiling Appeal No. 2 of 2005, Annexure- 3 allowing the pre-emption case has been set aside. Respondent No.4 executed a sale deed dated 3.3.2004 in favour of Respondent No.3 for 1 Katha and 4 ½ Dhurs of land bearing Plot No. 703 appertaining to Khata No. 307 of Village-Arwan Kothi. 4. It is submitted on behalf of the petitioner that in the sale deed itself petitioner has been shown as a southern boundary raiyat of the vended plot as he has his house and Sahan over another portion of Plot No. - 2 - 703 on the basis of which he filed the present pre- emption case. Respondent No.3 appeared in the said pre-emption case and filed her objection stating that the pre-emption case be dismissed as she is a landless lady and has purchased the lands in-question for raising a house and nature of the vended lands has since changed from agricultural to residential/commercial. 5. Learned Deputy Collector Land Reforms, the Collector under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as “the Act”) appointed an Advocate Commissioner for making local inspection of the lands in-question as also allowed the parties to lead evidence. The Advocate Commissioner having inspected the lands in-question submitted his report dated 05.09.2004, which is contained in Annexure-R/1 to the counter affidavit of the purchaser Respondent No.3. The report also contains a sketch map of the lands in- question as also of the adjoining plot. Perusal of the sketch map, prepared by the Advocate Commissioner indicates that over the vended plot one shop has been raised by the purchaser with wooden shutters. It further appears from the sketch map that by the side of the vended plot there is house of the pre-emptors, - 3 - namely, petitioner, Respondent No.5 and Shiv Nath Sah and these houses are raised on lands abutting a pitch road near a Government hospital, Mathia and other constructions including a concrete drain. Aforesaid constructions were also admitted by the pre- emptor in his deposition recorded by the Deputy Collector Land Reforms who having appreciated the purpose of purchase as also the fact that nature of the vended land has changed as also the fact that vendee is a landless lady dismissed the pre-emption case under order dated 23.12.2004 passed in Land Ceiling Case No. 01 of 2004-2005, Annexure-2. 6. Against the aforesaid order dated 23.12.2004, Annexure-2 the pre-emptor filed an appeal which was considered by the Additional Collector, Saran, Chapra under order dated 25.10.2005, Annexure-3 and the learned Additional Collector set aside the order dated 23.12.2004, Annexure-2 holding that the purchaser was not a landless lady as her husband had another 3 Kathas of land in different plot purchased under sale deed dated 10.2.1998, Annexure- 4. Learned Additional Collector further held that the nature of the land has also not changed as portion of the plot in-question and the adjoining lands bearing Plot Nos. 701 and 702 was still being used for - 4 - agriculture purpose. While recording the said findings the Additional Collector did not notice that the two pre- emptors as also Shiv Nath Sah had raised their houses over the adjoining lands which was abutting a pitch road as also was near to a Government hospital, Mathia and the concrete drain. 7. Aforesaid order dated 25.10.2005, Annexure- 3 was assailed by the purchaser Respondent No.3 by filing revision case before the Board of Revenue and the Additional Member Board of Revenue having heard counsel for the parties allowed the revision case and thereby dismissed the pre-emption application under orders dated 29.07.2006, Annexure-6. Perusal of the said order indicates that the Additional Member Board of Revenue affirmed the finding recorded by the Collector under the Act that purchaser Respondent No.3 was a landless lady as according to him any raiyat who has less than one acre of land is to be treated as a landless person in the light of the provisions contained in Sub-Section (iv) of Section 27 of the Act. The Additional Member Board of Revenue further held that the nature of the lands in-question has changed in view of the constructions on the adjoining lands like the house of the two pre-emptors as also of Shiv Nath Sah and the Government Hospital, Mathia and the lands - 5 - being adjacent to the pitch road and in view of such findings the Additional Member Board of Revenue allowed the revision application as also dismissed the pre-emption case. 8. Learned counsel for the petitioner has assailed the order passed by the Additional Member Board of Revenue dated 29.07.2006, Annexure-6 on two grounds, namely, that Section 27 of the Act has no application to a pre-emption proceeding as the said provision has to be considered while distributing the surplus land under the Act and not while considering the case of pre-emption. Learned counsel for the petitioner further contended that as the adjoining plots bearing No. 701, 702 and portion of 703 were being used for agriculture purpose on the date of application and inspection, as such, the lands in-question which may have been purchased for raising a house will form part of the homestead of the landholder and will be within the purview of the pre-emption proceeding under the Act and as petitioner is admittedly the southern boundary raiyat of the vended plot the writ application as also the pre-emption case be allowed. 9. Counsel for the purchaser has opposed the submission. He contends that the purchaser is a landless lady as the lands acquired by her husband - 6 - vide sale deed dated 10.2.1998, Annexure-4 cannot be treated as the acquisition of the purchaser as for the purposes of pre-emption case the lands of the husband cannot be taken as the lands of the wife. In support of such submission he has relied on the judgment in the case of Upendra Mishra and another Vs. Smt. Inchan Mishra and another, reported in 1986 PLJR 763 paragraphs 3 and 7. Learned counsel for the purchaser has further contended that even assuming that the lands of the husband is also the land of the wife still the purchaser Respondent No. 3 and her husband jointly possess less than one acre of land and they cannot be taken as a landholder within the meaning of the Act. In support of such submission he has relied on the judgment in the case of Bharat Prasad & Anr. Vs. The State of Bihar & Ors., reported in 2005 (2) PLJR, 24 which has also been referred to in the order of the Board of Revenue perusal whereof indicates that in the said judgment also reliance has been placed over Section 27 (1) Sub-Clause (iv) for holding that landless will include such persons who jointly with the spouse possess less than one acre of land. Counsel for the purchaser further contended that as she was landless lady the pre-emption case be defeated and in this connection placed reliance on the judgment of - 7 - the Division Bench of this Court in the case of Nathuni Singh Yadav & Anr. Vs. The State of Bihar & Ors., reported in 1997(1) PLJR 848 paragraph 7. 10. Counsel for Private Respondent No.5 , the other pre-emptor incorporated the submission of the counsel for the petitioner and with reference to the definition of the family as incorporated in Section 2 (ee) of the Act submitted that the lands of the husband has to be treated as the lands of the wife. 11. Having heard counsel for the parties and having perused the pleadings filed by them including the report of the Advocate Commissioner as also the deposition of the pre-emptor, I am of the view that 1 Katha 4 ½ Dhurs of land was purchased by Respondent No.3 for raising a house/shop which was also raised as was found by the Advocate Commissioner in his report dated 05.09.2004 besides residential houses have also been constructed over the adjoining lands by the two pre-emptors as also Shiv Nath Sah which is near the Government hospital, Mathia as is admitted in the deposition of the petitioner. From these facts it is evident that the nature of the vended land has changed from agricultural to residential/commercial and finding to that effect recorded by the Collector under the Act and Board of Revenue need not be - 8 - interfered with. Purchaser Respondent No.3 together with her husband possess less than one acre of land, as such, she is landless within the meaning of the Act and on this ground as well the pre-emption case has to fail. 12. In view of the discussion above, I do not wish to interfere with the findings recorded by the Additional Member Board of Revenue in the impugned order dated 29.07.2006, Annexure-6 and this writ application is, accordingly, dismissed. P.K.P. (V.N.Sinha,J.)