IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13504 of 2005 1. DWARIKA YADAV 2. RAJENDRA YADAV 3. SURENDRA YADAV ALL ARE SONS OF RAM LAL YADAV, RESIDENTS OF VILLAGE-DABOOR, P.S. MONCH, GAYA …PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE ADDITIOANL MEMBER, BOARD OF REVENUE, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA 3. THE COLLECTOR, GAYA 4. THE D.C.L.R. TAKARI, DISTRICT GAYA 5. NATHUNI YADAV SON OF GHANSHYAM YADAV, RESIDENT OF VILLAGE DABOOR, P.S. KONCH, GAYA 6. BAIJNATH SAO SON OF LATE JAGESHWAR SAO 7. KAULESHWAR SAO, SON OF LATE PRASAD SAO BOTH ARE RESIDENTS OF VILLAGE DABOOR P.S. KONCH, DISTRICT GAYA. …RESPONDENTS For the petitioners :Mr.S.S.Dwivedi, Sr. Advocate & :Mr. Bhanu Pratap Singh For respondent no. 5 :Mr. Dhruv Narayan, Sr. Advocate For respondent no. 6 :Mr.Amar Nath Singh ----------- 06. 21.04.2011 Petitioners in a petition under Article 226 of the Constitution of India, claiming themselves to be purchasers of the land(s) from respondent nos. 6 and 7 have questioned the sustainability of the order dated 02.09.2005 (Annexure-4), passed by Respondent-Addl. Member, Board of Revenue, whereby the revision application preferred by the writ petitioners herein was rejected. Facts giving rise to the present application are summarized as under:- Altogether 60 decimals of lands appertaining to khatna no.70, plot nos. 4015 and 4051 was/were vended by respondent no.6 and 7 in favour of writ petitioners. Since the sale deed (Annexure-1) reflected respondent no.5 as adjoining raiyat of the vended land(s), a claim under section 16(3) of the 2 Bihar Land Reforms(Fixation of Ceiling Area and Acquisition of Surplus Land) Act,1961(hereinafter referred to as the „Act‟) was instituted claiming re-conveyance of the land(s) on the ground that the pre-emptor was adjoining raiyat, whereas the purchasers (writ petitioners) were strangers to the vended land(s)/plot(s). This gave rise to L.C. Case No.01/2000-2001. On a consideration of materials on record, the Respondent-DCLR by a proceeding dated 19.08.2000 (Annexure-2), rejected the said claim of respondent no.5. Dissatisfied with the said order, respondent no.5 preferred appeal vide L.C. Appeal No. 14/2000-01. The respondent-appellate authority considering the submissions of the parties and on perusal of materials on record found the claim of the pre-emptor justified and, accordingly allowed the appeal by a proceeding dated 26.06.2002 (Annexure-3). Aggrieved over the said order, writ petitioners preferred revision vide Revision Case No. 208/2002. Both parties were heard and thereafter the said court/authority, by an order dated 02.09.2005 (Annexure-4), rejected the revision application preferred by the writ petitioners. In other words, the claim of pre-emption upheld by the appellate authority was not interfered with. The writ petitioners have thus approached this Court assailing the aforesaid order dated 02.09.2005. Heard Mr. S.S. Dwivedi who appeared on behalf of the writ petitioners, Mr. Narayan appearing on behalf of respondent no.5 and the counsel representing respondent no.6. A counter affidavit filed on behalf of respondent no.6 is on 3 record. While assailing the revisional order, Mr. Dwivedi raised a very short issue. It has been contended that before vending the plot(s)/land(s) in favour of the writ petitioners, the vendor had approached the co-villagers including respondent no.5 (pre-emptor) for purchase of the said lands as they were in need of money. Such offer was not accepted by the pre-emptor and, accordingly land(s)/plot(s) were vended in favour of writ petitioners. It is thus submitted that pre-emptor having not accepted the offer of the vendor will be deemed to have waived his right of pre-emption as engrafted under section 16(3) of he Act. In order to buttress the aforesaid proposition, he has placed reliance on the averments made in paragraph 2 of the counter affidavit filed on behalf of respondent no.6. and the judgment of the Apex Court rendered in the case of Ram Chhapit Yadav vs. Addl. Member, Board of Revenue & Ors since reported in 1996 BBCJ SC page 1. Mr. Narayan appearing on behalf of the pre-emptor (respondent no.5), on the other hand, supported the revisional order as well as the appellate order upholding the claim of pre- emption. It is submitted that the sale deed (Annexure-1) reflects that the pre-emptor is an adjoining raiyat of the vended lands/plots. No issue in this regard has been made before this Court. The revisional court has recorded that the parties are in agreement that going by the recitals made in subject sale deed (Annexure-1), the pre-emptor is an adjoining raiyat to the 4 vended land(s)/plot(s), whereas the purchasers are not. It is next contended that submissions which are now made before this Court was/were not made in the court below. Highlighting the recitals made in subject sale deed (Annexure-1), it is contended that no such factum of offer and refusal by the pre-emptor is/are reflected therefrom. In the submission of the counsel, the facts situation in which the case was decided by the Apex Court in the case of Ram Chhapit Yadav (supra) are different and distinct inasmuch as no affidavit affirmed by the vendor was filed in this proceeding upto revisional stage. Learned counsel appearing on behalf of respondent no.6 simply placed the averments made in paragraph 2 of the counter affidavit filed on behalf of respondent no.6. I have considered the submissions advanced on behalf of the parties and perused the materials on record. In the case of Ram Chhapit Yadav (supra) the Hon‟ble Apex Court was dealing with a situation where an affidavit duly affirmed by the vendor was filed in support of the said contention in the original court itself which was not denied and/or rebutted by the pre-emptor. In these circumstances, the original court relying on the said affidavit, accepted the contention of the purchaser/vendor. The said finding was affirmed by the appellate court but negated by the revisional court which was challenged but without success before the High Court. The Apex Court while allowing the appeal preferred by the purchasers observed as under:- 5 “We have heard learned counsel for the parties. We are of the view that the revisional authority fell into patent error in reversing the finding of the two courts below which was based on affidavits filed by the vendors. Whether land was offered for sale or not is a fact which was only known to the vendors. On the basis of the specialized knowledge possessed by the vendors, they filed the affidavits before the Deputy Collector. No counter affidavit was filed by the respondent before the Deputy Collector. The vendors were not even summoned before the Deputy Collector for cross-examination. In this view of the matter, the Deputy Collector and the appellate authority was justified in relying upon the affidavits filed by the vendors.” In the case at hand no such affidavit was filed on behalf of the vendor in the court below affording an opportunity to the pre-emptor either to accept or to deny inasmuch as upto the revisional stage no such stand was taken. After dismissal of the revision application, the purchaser filed the present writ petition wherein a counter affidavit has been filed on behalf of respondent no.6 stating therein that the vendor had offered the land(s) to the pre-emptor but he refused to purchase and only thereafter the plot(s)/land(s) were vended in favour of writ petitioners. I thus agree with the submissions of learned counsel on behalf of respondent no.5 that the ratio laid down in Ram Chhapit Yadav(supra) would not be applicable to the present case. Learned counsel for respondent no.5 relying on a judgment rendered by the Apex Court in the case of Suresh Prasad Singh vs. Dulhin Phulkumari Devi since reported in 2010(2) PLJR (SC) 167 has submitted that the Hon‟ble Supreme Court considering the provisions of the Act in paragraph 13 of 6 the report found as under:- “Thus even if there has been a long lapse of 19 years, the High Court could not have rejected the claim of the appellant for pre- emption when the claim was recognized by the statute, had been lodged in accordance with the statute and within the time prescribed by the statute and in the manner provided by the statute.” Relying thereon it has been contended that the right conferred under the said provision of the Act is a statutory right and can only be defeated by bona fide means. The manner in which the petitioners have made an effort to defeat the statutory claim of the pre-emptor, cannot be said to be bona fide and, as such, based on the findings recorded by learned lower appellate court as well as the revisional court the case of the pre-emptor merits to be upheld by rejecting the present writ petition. I have noticed hereinabove that factual situation in the present case are quite different and distinct from those noticed by the Supreme Court in the case of Ram Chhapit Yadav(supra). The revisional court has assigned reasons for rejecting the revision application preferred by the petitioners. This Court in view of discussions made hereinabove is not satisfied that a case for interference with the findings recorded by revisional court has been made out. In the result, the application is dismissed. No costs. hr ( Kishore K. Mandal )