IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. NO. 2429 OF 2004 WITH C.W.J.C. NO. 2179 OF 2004 WITH C.W.J.C. NO. 2598 OF 2004 ****** AVINASH KUMAR, (MINOR), SONOF BHUBNESHWAR SAHU, UNDER THE GUARDIANSHIP OF HIS FATHER SHRI BHUBNESHWAR SAHU, RESIDENT OF VILLAGE MOHIUDDINPUR RAZWAR, POLICE STTION BANGRA, DISTRICT SAMASTIPUR ........................................PETITIONER (IN CWJC 2429/2004) WITH SMT. BEBIYA DEVI, WIFE OF GURU DAYAL SAH, RESIDENT OF VILLAGE MOHIUDDINPUR RAZWAR, POST OFFICE AND POLICE STATION BANGRA, DISTRICT SAMASTIPUR ...................PETITIONER (IN CWJC 2179/2004) WITH 1. SURESH PRASAD, SON OF AKSHAYA LAL SAH 2. MAHESH PRASAD, SON OF AKSHAYA LAL SAH 3. GANESH PRASAD, SON OF AKSHAYA LAL SAH 4. MITHILSH SAH, SON OF AKSHAYA LAL SAH ALL RESIDENT OF POST OFFICE AND VILLAGE MOHIUDDINPUR RAZWAR, POLICE STATION BANGRA, DISTRICT SAMASTIPUR ..............................................PETITIONERS (IN CWJC 2598/2004) VERSUS 1. THE STATE OF BIHAR THROUGH THE ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR, PATNA 2. THE ADDITIONAL COLLECTOR, SAMASTIPUR 3. THE DEPUTY COLLECTOR LAND REFORMS, SAMASTIPUR 4. SMT. KIRAN KUMARI, WIFE OF SHAMBHU CHAUDHARY, RESIDENT OF VILLAGE AND POLICE STATION TAZJPUR, DISTRICT SAMASTIPUR 5. SMT. INDU DEVI, WIFE OF PREM LAL SAH, RESIDENT OF AKHTYARPUR DEOGHAR. AT PRESENT VILLAGE KASBA, POST OFFICE AND POLICE STATION TAJPUR, DISTRICT SAMASTIPUR .........................................................RESPONDENTS (IN ALL CASES) ************* FOR THE PETITIOENRS :- MR. BHUBNESHWAR PRASAD, ADVOCATE FOR RESP. NO. 5 :- MR. MANISH, ADVOCATE FOR THE S T A T E :- MR. K. THAKUR, AC TO SC 4 (CEILING) ********* 4 30/08/2010 The petitioners are purchasers from one Indu Devi. Indu Devi by four sale deeds sold 08 dhurs of 2 land to Avinash Kumar, 04 dhurs of land to Bebiya Devi and 05 dhurs of land to Suresh Prasad and others. She also sold from the lands adjacent to aforesaid plot to one Ramkrit. Respondent no. 4 filed an application for pre- emption on the ground that she is a boundary raiyat to the lands which have been sold to the petitioner. It may be mentioned that only three pre-emption applications were filed Although, the Land Reforms Deputy Collector found that respondent no. 4 was a boundary raiyat, he rejected the plea of pre-emption on the ground that the enquiry conducted by the Circle Officer, discloses that the lands in question were situated in the main village chowk and were only capable of being used for residential purposes. The Enquiry Report has been annexed as Annexure-4 to the writ application which indicates that Indu Devi had 22 dhurs of land which was enclosed by a boundary wall. She has sold the lands within the said boundary wall to the petitioners and one Ramkrit. The lands have been described as Basgit lands. The Circle Officer also found that the bricks and sand had already accumulated over the plot and construction work for building the house had commenced on the date on which the Circle Officer inspected the plot in question. Learned Counsel for the petitioner submits 3 that the lands have been described as Basgit i.e. homestead lands of Kiran Kumari, the vendor. This Court finds after perusal of the records that the lands were situated in the main chowk of the village, under the Tajpur Police Station. The area where the land was situated was ’main chowk’ of the village, which necessarily means that it is either a residential area or a market place. The lands were not capable of being used for agricultural purposes, for the reasons that they were very small plots of land. The larger plot of land which was sold to the petitioner was of 08 dhurs, it would be equivalent to 544.40 sq. Ft.; 04 dhurs would be about 272 sq. Ft.; whereas 05 dhurs would be a little more than 272 sq. Ft. It is submitted that obviously such small strips of land sold to four petitioners, who are not in any way related to each other can hardly be utilized for any agriculture, horticulture or any purpose associated with agriculture. This Court agrees with the submissions put forth on behalf of the petitioners. The size of the lands and the situation of the lands, on the date on which the purchase was made are the factors which would determine the nature of the lands. Thus, if the lands have been recorded as homestead lands, several years back at the time of preparation of revisional survey khatiyan, it 4 cannot be said that the nature of the lands would not change subsequently. Considering all these aspects, this Court finds that the order of the Additional Member, Board of Revenue, Bihar, Patna dated 19.12.2003 allowing the pre-emption application treating the lands to be homestead lands is not justified for the reasons aforesaid. Accordingly, the impugned orders, dated 19.12.2003 passed by the Additional Member, Board of Revenue, Bihar, Patna and the order dated 12.05.2003 passed by the Additional Collector, Samastipur are hereby set aside. In the result, these writ applications are allowed. Anand ( Sheema Ali Khan, J. )