IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5130 of 2004 1. SRI NARSINGH SHARMA SON OF LATE RAJPAT SHARMA 2. BABU LAL YADAV SON OF LATE NATHUNI YADAV ALL RESIDENTS OF VILLAGE AMAWA, KHAS, P.S.- BHOREY, DISTRICT- GOPALGANJ. Versus 1. THE STATE OF BIHAR 2. ISHWAR YADAV SON OF LATE DEO NARAYAN YADAV, R/O- VILLAGE- AMAWA KHAS, P.S.- BHOREY, DISTRICT- GOPALGANJ. 3. CIRCLE OFFICER, BHOREY, DISTRICT- GOPALGANJ. For the petitioners : Mr. Naresh Dixit, Advocate For the respondent No. 1 : Mr. Y.V. Giri, Sr. Advocate Mr. Raju Giri, Advocate For the State : Mr. Rajeev Kumar, Advocate. ----------- 10 31.03.2011 Two petitioners herein are vendor and vendee of the land which is the subject matter of preemption. They are assailing the resolution dated 31.4.2004 (Annexure-3) passed by respondent Additional Member, Board of Revenue, Bihar in Board Ceiling Revision No. 72 of 2003 whereby the application preferred by respondent No. 2 (preemptor) was allowed and the orders passed by respondent D.C.L.R. (Annexure-1) and Collector on appeal (Annexure-2) have been quashed and set aside. 2. Background facts, in short, are as under: On 26.3.2002, two sales were brought into existence by registration thereof. Petitioner No. 1 vended a small tract of land in favour of petitioner No. 2 whereas petitioner No. 2 also vended a small tract of land in favour of petitioner No. 1. Respondent No. 2 led a claim in terms of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling 2 Area and Acquisition of Surplus Land) Act, 1961 (for short “the Act”) in respect of the land vended by petitioner No. 2 in favour of petitioner No. 1. Such claim was raised on the ground that the name of respondent No. 2 as boundary/adjoining raiyat of the vended land/plots is reflected from the sale deed in question and that the land vended in favour of petitioner No. 1 has been described as agricultural land. This gave rise to Preemption case No. 1/2002 (Ishwar Yadav versus Bhulan Sharma). Such claim of preemption raised by respondent No. 2 was resisted by the petitioners by filing rejoinder/show cause. The application preferred by respondent No. 2 was dismissed on the ground that the purchaser was a landless person and that the vended land was fit for residential purpose. Aggrieved by the aforesaid order dated 5.6.2002 (Annexure- 1), preemptor/respondent No. 2 filed appeal being L.C. Appeal No. 17/2002. The Appellate Court/Authority by proceeding dated 14.2.2003 (Annexure-2), dismissed the appeal. Aggrieved over the said order, respondent No. 2/preemptor preferred revision before the Board of Revenue which was allowed by the impugned order leading to filing of the present writ petition. 3. Counter affidavit and supplementary counter affidavit have been filed on behalf of respondent No. 2 and rejoinder thereto have been filed on behalf of the petitioners. 3 No counter affidavit has been filed on behalf of the State. 4. Heard Mr. Dixit who appears in support of the application and Mr. Raju Giri who appears on behalf of respondent No. 2. Learned Assistant Counsel to S.C. -2 represented the State respondents. It appears that by order dated 25.10.2010, this Court, having noticed the findings of the Court below and the submissions of the parties, directed the Circle Officer, Bhorey to conduct an inquiry in presence of both the parties and submit report to this Court. Both the writ petitioners and the respondent No. 2 were directed to appear before the Circle Officer, Bhorey along with a copy of this order. The verification/inspection report of the Circle Officer in terms of order of this Court is on record at Flag- A. Both the parties were permitted to peruse the said report while the matter was pending consideration. Mr. Dixit appearing in support of the writ application submits that it is admitted position that on 26.3.2002, two sales were effected between the petitioner Nos. 1 and 2 in respect of small tracts of land. Preemptor (respondent No. 2) instituted a proceeding in respect of sale made in favour of petitioner No. 1 by petitioner No. 2 respecting a small tract of land measuring 3 kathas 10 dhurs. It is submitted that the claim was resisted on the ground that the same was purchased for construction of residential house of the purchaser (petitioner No. 1) and that 4 the petitioner No. 1 was landless person. Having considered the materials on record, respondent D.C.L.R. agreed with the submission(s) of the petitioner on the aforesaid two points/issues and thereby dismissed the application. Appeal preferred therefrom by respondent No. 2 also stood dismissed by holding therein that the petitioner No. 1 (purchaser) was a landless person and that the small tract of land vended in his favour was fit for residential purpose. In other words, it was found and held that the colour and use of the vended land has changed and as such no claim under Section 16(3) of the Act can be allowed. It is submitted that the Revisional Court completely erred in concluding that there was no material on record to indicate that the vended land was fit for residential purpose. It is submitted that Revisional Court further erred in allowing the application without considering the findings recorded by the Courts below based on materials on record that the purchaser (petitioner No. 1) was a landless person. It is next contended that having considered the claim and counter claim of the parties, this Court by order dated 25.10.2010 directed the parties to appear before the Circle Officer, who was, in turn, directed to hold local inspection and submit a report regarding the nature/status of the vended land. It is submitted that the report submitted to this Court (at Flag-A) supports the contention of the petitioner that the land has 5 changed its nature and use and is fit for residential purpose. 5. Mr. Raju Giri, learned counsel appearing on behalf of respondent No. 2, per contra, supported the impugned resolution of the Board. It is submitted that the respondent D.C.L.R. has not recorded a finding on the claim/counter claim made by the parties while dismissing the application filed under Section 16(3) of the Act on behalf of respondent No. 2. It is submitted that no specific finding(s) have also been recorded by the Appellate Court. It is next contended that from the sale deed in question (R/2 to the counter affidavit), it manifests that the vended land is described as agricultural land. Referring to averments made in the supplementary counter affidavit, it is contended that the petitioners (purchaser) possess land besides the land in question and as such it cannot be said that the purchaser (petitioners) are/were landless persons. Referring to the report, it is submitted that same is not specific/clear on the point as to the status/nature of the land. 6. Counsel for the State submits that the interest of the State is not involved and as such no counter affidavit has been filed on behalf of the State. 7. The issue which falls for consideration is/are whether a small tract of land vended by petitioner no. 1 in favour of petitioner No. 2 has changed its nature/status/use with regard whereto a claim of preemption is to be allowed. 6 So far as the status of the petitioners as landless is concerned, this is what has been pleaded in paragraph 10 of the writ petition. “10. That it is stated that the petitioner no. 2 has no other land except this one in Amwa Khas and therefore Exchange the said land with the petitioner no. 1 only for the purpose of construction of house therefore proceeding for pre-emption U/S 16(3) of the above said Act is not maintainable against the Homestead land” Respondent No. 2 has replied to the writ petition by filing counter affidavit. Paragraph Nos. 11 and 14 whereof (at page 23) read as under: “11. That it is stated that the Collector has given a finding that the writ petitioner is landless person. It is wrong finding given by the Collector. It is the own case of the petitioner that they have exchanged land with the vendor. If he would have been a landless person he would not be possessing land for exchanging the same. 14. That as far as the statements made in paragraph no. 7 to 13 of the writ petition under reply is concerned, the same has been already replied and does not requires reiteration.” 8. It is submitted on behalf of respondent No. 2 with reference to Annexure-R/3 appended to the supplementary counter affidavit that the documents contained therein would indicate that the purchaser (petitioners) has substantial land in village Amawa. 9. Petitioners have filed rejoinder thereto. It is the stand of the petitioners that the endorsement made on R/3 would indicate that the petitioners had only a defined interest in the land incorporated therein. It is stated that, in 7 fact, the petitioners own/possess only 7 kathas of land in his share out of the lands incorporated in Annexure-R/3. It further appears that the consistent case of the petitioners had been from the very inception that they are landless having a very small tract of land owned by them. The said submission has been accepted by both the Courts below. It is seen from the revisional order (Annexure-3) that no finding with respect to the said claim has been recorded. 10. I have noticed the relevant pleadings in respect of the said claim. On a consideration of the matter, this Court also finds that the purchaser owns a very small tract of land and thus can be held to be a landless person. 11. As about the status of the land is concerned, this Court finds from the Appellate Court order that based on submissions of the parties, a finding has been recorded that the vended land in favour of the petitioner was fit for residential purpose. 12. I have already found hereinabove that the petitioners (purchaser), besides the land in question, possess/own a very small tract of land and as such he cannot be termed as raiyat/landholder within the meaning of the Act. It further appears from the report (Flag-A) that the land has changed its nature, use and character. 13. In view of my aforesaid conclusion, I find that the order passed by the Revisional Court requires to be 8 interfered with and quashed. Accordingly, the application is allowed. Impugned resolution dated 31.1.2004 is quashed and set aside. 14. There shall be no order as to costs. pkj ( Kishore K. Mandal, J)