IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1022 of 2011 In Civil Writ Jurisdiction Case No. 1820 of 2006 ====================================================== Ramanuj Pandit, Son of late Kanhaiya Pandit, resident of Village Barahana, P.S. Itarhi, District Buxar. Respondent 2nd Set.... .... Appellant/s Versus 1. The State of Bihar. 2. The Member, Board of Revenue , Old Secretariat, Patna. 3. The Collector, Buxar. 4. The D.C.L.R., Buxar ……….Respondents 1st Set 5. Jhabu Lal Singh, Son of late Ram Nagina Singh, resident of Village Barahana, P.S. Itarhi, District Buxar. ….Petitioner 6. Hriday Narayan Singh, son of late Baleshwar Singh, resident of Village Barahana, P.S. Itarhi, District Buxar. ………Respondent 2nd Set .... .... Respondent/s ====================================================== with Letters Patent Appeal No.1024 of 2011 IN Civil Writ Jurisdiction Case No. 1851 of 2006 ====================================================== Ramanuj Pandit, Son of late Kanhaiya Pandit, resident of Village Barahana, P.S. Itarhi, District Buxar. .... .... Appellant/s Versus 1 The State of Bihar. 2 The Member, Board of Revenue , Old Secretariat, Patna. 3 The Collector, Buxar. 4 The D.C.L.R., Buxar. …………Respondents 1st Set. 5 Tej Narayan Singh, Son of Ram Barat Singh. 6 Vijay Narayan Singh, Son of Ram Barat Singh. Both residents of Village Barahana, P.S. Itarhi, Dist. Buxar. ………Petitioners Patna High Court LPA No.1022 of 2011 (4) dt.12-08-2011 2 7 Hriday Narayan Singh, son of late Baleshwar Singh, resident of Village Barahana, P.S. Itarhi, District Buxar. ………..Respondent 2nd Set .... .... Respondent/s ====================================================== Appearance : (In LPA No.1022 of 2011) For the Appellant/s : Mr. Sanjay Kumar, Advocate For the Respondent/s : Mrs. Kumari Amrita, G.P.-10 (In LPA No.1024 of 2011) For the Appellant/s : Mr. Sanjay Kumar, Advocate For the Respondent/s : Mrs. Kumari Amrita, G.P.-10 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 4 12-08-2011 These Appeals preferred by the respondent no.5 arise from the common judgment and order dated 20th May 2011 passed by the learned single Judge in above C.W.J.C. Nos. 1820 of 2006 and 1851 of 2006. The appellant- respondent no. 5 in the writ petitions is the owner of the land contiguous to the disputed parcels of land situated at village- Barahana, District- Buxar. The disputed parcels of land were sold by the owner Hriday Narayan Singh to the writ petitioners, the respondent nos. 5 and 6 in Letters Patent Appeal no. 1024 of 2011 and the respondent no.5 in Letters Patent Appeal No.1022 of 2011, under three registered sale deeds dated 29th Patna High Court LPA No.1022 of 2011 (4) dt.12-08-2011 3 March 2001. Feeling aggrieved by the said sale of lands, the appellant lodged claim for right to pre-emption conferred by section 16(3) (i) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. The appellant‟s claim for pre-emption was allowed by the Deputy Collector, Land Reforms on 8th September 2001. The said order of 8th September 2001 was challenged before the District Collector, Buxar by the concerned purchasers in Ceiling Appeal Nos. 114 of 2001-02 and 115 of 2001-02. The Collector, Buxar rejected both the Appeals on 11th July 2003. The said order of 11th July 2003 was set aside by the Board of Revenue on 28th April 2004 in Revision Application Nos. 158 of 2003 and 159 of 2003. The Board of Revenue remitted the matter to the District Collector, Buxar to make spot inspection and to decide the appeals afresh. After receiving the report of the spot inspection, by order dated 5th November 2004, the Collector, Buxar set aside the order of the Deputy Collector, Land Reforms and rejected the right to pre-emption claimed by the appellant. Feeling aggrieved the appellant preferred Revision Application Nos. 298 of 2004 and 299 of 2004 before the Board of Revenue. The Board of Revenue under its judgment and order dated 25th October 2005 set aside the Patna High Court LPA No.1022 of 2011 (4) dt.12-08-2011 4 order of the District Collector, Buxar and allowed the pre-emption applications made by the appellant. The said judgment and order was challenged by the respective set of purchasers in above C.W.J.C. No. 1820 of 2006 and 1851 of 2006. The learned single Judge has, by impugned judgment and order dated 20th May 2011, allowed the writ petitions. As far as the writ petitioner in C.W.J.C. No. 1820 is concerned the learned single Judge has held that he was a landless person. Following the judgments of this Court in the matter of Shyam Bihari Mistri & Ors.& Lal Bihari vr. State of Bihar & Ors. [ 2007(Suppl.) PLJR 164] and in the matter of Nathuni Singh Yadav & Anr. Vs. State of Bihar & Ors. [ 1997(2) PLJR 287] , the learned single Judge has held that the claim for pre- emption against the said purchaser, being a landless person, was not sustainable. In respect of the land purchased by the writ petitioners in C.W.J.C. No. 1851 of 2006, the learned single Judge has held that the said petitioners had purchased the land for construction of the houses as indicated in the sale deeds. The inspection report also revealed that the residential construction had come up on the said land and that the land was not capable of being cultivated. The right to pre-emption in respect of the land not capable of Patna High Court LPA No.1022 of 2011 (4) dt.12-08-2011 5 cultivation was not sustainable. The learned single Judge noted “It is further seen from the inspection report as well as the appellate Court order that the vended lands changed its colour and use. It is no longer connected with agriculture. Several residential premises have come up on or around the plot in question. It is found located close to Bazar. If the nature/ use of the land has changed and it is no longer found connected with agriculture then allowing claim of preemption would not sub serve the aim and object for which the provision has been engrafted.” Feeling aggrieved, the Pre-emptor has preferred the present Appeals. Learned advocate Mr. Rajendra Narain has appeared for the appellant- Pre-emptor. We have heard Mr. Narain extensively. He has taken us through the records. He has vehemently argued that the spot inspection report made by the Executive Magistrate at the instance of the appellate authority was not a valid report. The appellant had lodged objection against the said report. Nevertheless, without considering the objection the inspection report has been relied upon to non-suit the appellant. He has submitted that the right of pre-emption is a statutory right. The appellant having complied with the conditions, his claim for pre- Patna High Court LPA No.1022 of 2011 (4) dt.12-08-2011 6 emption could not have been refused. He has further submitted that the appellant‟s right to pre-emption has been rejected on the ground, inter-alia, that one of the purchasers, Jhabulal Singh- the writ petitioner in C.W.J.C. No. 1820 of 2006 was a landless person. He has submitted that the finding that Jhabulal Singh was a landless person, is incorrect. He has relied upon certain revenue records alleged to be the „khatian‟ to show that the grand-father of Jhabulal Singh owns and possesses substantial lands. In the submission of Mr. Rajendra Narain the said Jhabulal Singh is the coparcener with his grand-father and will inherit the land under the law of succession. The said Jhabulal Singh, therefore, cannot be said to be a landless person. It is now a settled law that the claim for preemption against the purchaser, who is a landless person, cannot be sustained. Such claim made by the appellant cannot be accepted on a remote chance of the purchaser acquiring some land in future under the law of inheritance. If on the date of purchase no land stood in the name of the purchaser, he must be treated as a landless person. Claim for preemption cannot be sustained against such landless person. In respect of the writ petitioner in C.W.J.C. No. 1851 of 2006, Mr. Rajendra Narain has submitted that the appellant has Patna High Court LPA No.1022 of 2011 (4) dt.12-08-2011 7 wrongly been non-suited, on the premise that the land in question changed the colour and the use. He has submitted that it is not relevant whether the land is constructed upon or has changed hands or whether it is capable of being cultivated or not. If on the date of sale the land was agricultural land and was capable of being cultivated, right to preemption being a statutory right has to be accepted. In support thereof he has relied upon the judgment of the Hon‟ble Supreme Court in the matter of Suresh Prasad Singh vs. Dulhin Phulkumari Devi & Ors.[ 2010 (2) PLJR (S.C.) 167] and of this Court in the matter of Hiralal Chauhan vs. The State of Bihar & Ors. [ 2004 (2) PLJR 339 ]. The appeals are contested by the learned advocate Mr. R.K.P.Singh appearing for the writ petitioners. He has relied upon the inspection report to show that the several houses have been constructed over the lands sold to the petitioners in C.W.J.C. No. 1851 of 2006. He has submitted that the revenue records relied upon by the appellant is at the best a draft khatian and the same is not admissible in evidence. In support of his submission he has relied upon the judgments in the matters of Hiralal Chauhan vs. The State of Bihar [2004 (2) PLJR 339]; of Vidya Prasad Singh vs. The State of Bihar & Ors. [ 2010 (2) PLJR 17] and of Ram Patna High Court LPA No.1022 of 2011 (4) dt.12-08-2011 8 Nagina Singh & Ors. vs. Ravindra Prasad @ Laddo Singh & Ors. [ 2001 (4) PLJR 228]. It is not in dispute that the appellant is the owner of the land contiguous to the disputed parcels of the land. The appellant‟s claim for pre-emption is rejected on the ground that one of the purchasers- writ petitioner in C.W.J.C. No. 1820 of 2006 was a landless person and the other piece of land sold has now been developed into residential area. The same is not capable of cultivation. In spite of the strenuous efforts made by him, learned advocate Mr. Rajendra Narain has not been able to dislodge the above referred findings.. We agree with the learned single Judge. No case for interference is made out. Appeals are dismissed in limine. BTiwary/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)