IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5640 of 2005 1. PALTAN SINGH 2. SHANKER SINGH BOTH SONS OF HRIDAYA SINGH, RESIDENTS OF VILLAGE AND P.O.- FATEHABAD, P.S.- PARU, DISTRICT- MUZAFFARPUR. Versus 1. THE STATE OF BIHAR 2. THE MEMBER BOARD OF REVENUE, BIHAR, PATNA. 3. THE ADDITIONAL MEMBER BOARD OF REVENUE, BIHAR, PATNA. 4. THE COLLECTOR, MUZAFFARPUR (WEST), 5. THE LAND REFORMS DEPUTY COLLECTOR, MUZAFFARPUR (WEST). 6. GANESH TIWARI, S/O- BRAHMDEO TIWARI, R/O- VILLAGE AND P.O.- FATEHABAD, P.S.- PARU, DISTRICT- MUZAFFARPUR 7. RAMDEO SINGH, S/O- LATE BAL KRISHN SINGH, R/O- VILLAGE + P.O.- FATEHABAD, P.S.- PARU, DISTRICT- MUZAFFARPUR For the petitioner : Mr. Nawal Kishore Sharma, Advocate For the respondent No. 6 : Mr. Shashi Bhushan Singh, Advocate ----------- 7 28.03.2011 Petitioner is the preemptor. He is aggrieved by the resolution of the respondent Board of Revenue dated 13.11.2004 (Annexure-1) whereby single revision application preferred by respondent No. 6 against the common order dated 9.2.2004 passed on L.C. Appeal No. 02/1991 and 03/1991 was entertained and allowed. The respondent Board of Revenue by the impugned resolution found that the lands covered by the two sale deeds in question were fit for residential purpose and as such would not be covered by the provisions contained in Section 16(3) of the Bihar Land Ceiling Act, 1961 (for short the Act). 2. Background facts leading to the present writ proceeding may be set out with relevant brevity: On 4.5.1983, three sale deeds were executed in 2 favour of respondent No. 6. One of the aforesaid sale was in the name of Anil Kumar Tiwari who is son of respondent No. 6 (purchaser). Each sale deed was in respect of an area of 03 decimals appertaining to plot No. 2549 situated in village Fatehabad in the district of Muzaffarpur. It is admitted position that the name of preemptor appears on the boundary of each sale deed. Writ petitioner having found so filed two applications under Section 16(3) of the Act in respect of only 02 sales made on 24.10.1983 giving rise to L.C. case No. 34 of 1983 and 36 of 1983. It appears that a local inspection was made by the respondent D.C.L.R. The said respondent by a common proceeding dated 3.7.1991 allowed both the preemption applications and thereby allowed the claim of preemption raised by the writ petitioner. Aggrieved by the aforesaid orders, the respondent No. 6 filed 02 appeals being Appeal No. 02 of 1991 and 03 of 1991. The said appeal was disposed of by a common order dated 9.2.2004 (Annexure-3) whereby both the appeals preferred by the respondent No. 6 was dismissed. Aggrieved over the said order, one revision was filed before the respondent Board of Revenue by respondent No. 6 giving rise to Ceiling Revision No. 60 of 2004. The respondent Addl. Member, Board of Revenue by resolution dated 30.11.2004 (Annexure-1) allowed the said revision application and thereby rejected the claim of preemption 3 raised by the writ petitioner on the solitary ground that the lands covered by 02 sale deeds (subject land) were residential lands and as such provisions of the Act shall not apply thereto leading to the present writ case. 3. A counter affidavit has been filed on behalf of respondent No. 6 (purchaser). Writ petitioners have thereafter filed a supplementary affidavit but rejoinder to the counter affidavit has not been filed. 4. While assailing the order, it is submitted on behalf of the petitioner that the finding arrived at by the revisional Court that the land(s) in question had changed its colour and use and have become purely residential in nature, is mere conjecture. There is no material on record to show that the lands covered by 02 sale deeds were fit for residential purpose and had changed its nature from agriculture to residential. It is next submitted that the order of the Revisional Court is also fit to be interfered with on the ground that against a common order passed on two appeals, only one revision application was preferred. The Revisional Court, therefore, committed gross illegality in setting aside order passed on both the appeals as well as original order. It is submitted that although the preemption is a weak right but nonetheless it is statutory right and can be defeated only by legal/bona fide means. Reliance in this regard has been placed on the following judgments: 4 (i) (2001) 8 S.C.C. 24 (Shyam Sunder vs. Ram Kumar (ii) 2010 (2) P.L.J.R. S.C. 167(Suresh Prasad Singh vs. Dulhin Phulkumari Devi (paragraph 3). (iii) 1981 B.B.C.J. 96 (Moghal Singh vs. Member, Board of Revenue. 5. Learned counsel for respondent No. 6, per contra, supported the impugned resolution passed by the Revisional Court. It is submitted that respondent No. 6 got executed three (03) sale deeds on 4.5.1983 each in respect of 03 decimals (less than a katha of land). It has been recited in the sale deeds itself that the lands were being purchased for construction of residential house/dallan of the purchaser. It is submitted that one of the plots was purchased by respondent No. 6 but in the name of his son namely Anil Kumar Tiwary which has not been challenged by instituting proceeding under Section 16(3) of the Act thereagainst. It is submitted that without considering the topography of the plots and the fact that they were acquired by two different and distinct sale deeds whereby the respondent No. 6 himself became adjoining raiyat of the vended plots, the claim of preemption was allowed by the two Courts below which has been set right by the revisional Court. Respondent revisional authority/Court has rightly found that it has changed its colour and use. Referring to 5 sale deeds (Annexures- 4 and 5 to the supplementary affidavit), it is submitted that adjacent to the vended plot(s), there is a pucca road constructed by the Public Works Department of the Government. Having regard to the aforesaid facts and keeping in focus that very small tracts of land have been purchased under two sale deeds, the claim of preemption raised by the writ petitioner would fail. Reliance in this regard has been placed on a Division Bench judgment of this Court since reported in 2010 (2) P.L.J.R. 17 (Vidya Prasad Singh versus The State of Bihar & Ors), 2010 (1) P.L.J.R. 281(Shital Prasad Choudhary vs. Smt. Usha Dalmiya) and 2010 (4) P.L.J.R. 104 (Mahabeer Singh vs. State of Bihar) (paragraph Nos. 8, 9 and 12). Adverting to the submissions of the petitioner that one revision application filed on behalf of respondent No. 6 was not maintainable before the Board of Revenue, it is submitted that no such objection was raised by the writ petitioner during the consideration of the revision application. Even in the writ petition, there is no such plea made/raised. By filing supplementary affidavit, relevant pleadings in this regard have been made. It is submitted that the writ petitioner having not raised the aforesaid objections at the initial stage of the case, cannot be allowed to raise the aforesaid ground which is a technical one and the bona fide/legal right of a party cannot be defeated merely on technical grounds. 6 Reliance in this regard has been placed on a judgment since reported in 1983 B.B.C.J 411 (D.B.) (Ganesh Prasad Sinha and Ors versus Ram Chandra Prasad) and A.I.R. 1962 Patna 72. 6. I have considered the submissions advanced on behalf of the parties. The first and the foremost question that falls for consideration in the present application, in my view, is whether a small tracts of land purchased by respondent No. 6 for the purpose of construction of residential premise which definitely lie adjacent to a public road, can be the subject matter of preemption proceeding. It is admitted at Bar that on 4.5.1983, 03 sale deeds (each in respect of 03 decimals of land) were got executed in favour of purchaser (respondent No. 6), one of which was made in the name of son of respondent No. 6. it is admitted position that the sale made in favour of son of petitioner(respondent No. 6) has not been impugned by instituting proceeding thereagainst by the writ petitioner, Respondent No. 6 in his counter affidavit has averred as under in paragraph Nos. 4, 5 and 9: “4. That, at the first instance the 3 decimals block from East side was purchased by Anil Kumar Tiwary, son of the answering respondent- IInd set, as per registered sale deed No. 4542 in respect of which there was no case of pre-emption. 5. That, subsequently by two sale deed No. 4843 and 4844, the answering Respondent purchased remaining two blocks of 3 decimals each from west of Anil Kumar Tiwary and South of the residuary two decimals area retained by the respondent IIIrd set for his own use. 7 9. That, it is pertinent to state that, the petitioners have sold the entire land except 2 decimals to different persons, so the basic concept of preemption vitiate.” 7. According to the pleadings made therein and the sketch map attached thereto, the vended plots under the three sale deeds formed one block. The writ petitioner is on the eastern side of the entire block. It further appears that the land purchased in the name of son of respondent No. 6 has not been made subject matter of the proceeding. The original Court in its order has recorded the submissions of the parties as under: “fooknh Hkwfe esa lEcfU/kr dsokyk ds iwjo pkSgnh esa iyVu flag oks 'kadj flag vafdr fd;k x;k gSA ,d gh frfFk dks izfroknh us nks dsokyk fooknh Hkwfe dk rFkk ,d dsokyk muds iq= vfuy frokjh ds uke fooknh [ksljk ls 0-03 Mh0 dk djok;k x;k gSA rhuks dsokyk esa pkSgnh ,d gh vafdr fd;k x;k gSa blls Li"V gS fd dqy Ø; fd, x, jdok 0-09 Mh0 ds iqjc pkSgnh esa iyVu flag oks 'kadj flag dks gksus ds rF; dks Lo;a izfroknh Lohdkj djrs gSÞ Considering the aforesaid materials on record, the Revisional Court has also found as under: “nksuks i{kksa ds fo}ku vf/koDrkvksa dks lquk ,oa fuEu U;k;ky;ksa ls izkIr vfHkys[kksa dk voyksdu fd;kA fuEu U;k;ky; ¼Hkwfe lq/kkj mi lekgRrkZ½ ds }kjk ikfjr vkns'k ds voyksdu ls Kkr gksrk gS fd budk vkns'k xzkeh.kksa }kjk nh x;h xokgh ij vk/kkfjr gS ftlesa fooknxzLr Hkwfe dks d`f"k ;ksX; ekuk gSA 8 ijUrq txukFk flag firk jkeLo:i flag f'ko th frokjh] dfiynso flag firk ny flaxkj flag] nso uhfr flag firk jke nso flag vkfn }kjk nh x;h xokgh esa Li"V :i ls vafdr gS fd fooknxzLr tehu ds lVs if'pe ih0MCyw0Mh0 dk fip jksM gS] dqN gh nwjh ij Ldwy] vLirky] iapk;r Hkou] nqdkus fLFkr gSA dfiy nso flag ds c;ku ds vuqlkj x.ks'k frokjh dk edku fooknxzLr Hkwfe ds lVs gSA blh edku ds foLrkj gsrq x.ks'k frokjh us fooknxzLr Hkwfe dk Ø; fd;k gSA brus ljdkjh izfr"Bku] nqdkusa] vkoklh; edku gksus ds ckotwn fooknxzLr Hkwfe dk d`f"k ;ksX; ugha ekuk tk ldrk gSA vr% fooknxzLr Hkwfe vkoklh; gSA fooknxzLr Hkwfe dk de {ks=Qy gksuk Hkh bls vkoklh; lkfcr djrk gSA bl izdkj fuEu U;k;ky;ksa }kjk ikfjr vkns'k =qfViw.kZ gSaAÞ 8. Learned counsel for the respondent No. 6 (purchaser) has referred to the aforesaid judgment in order to show that the small area of the vended land and its topography and relevant recital made in the sale deed are relevant consideration in a matter where the sale becomes subject matter of proceeding under Section 16(3) of the Act. 9. A Division Bench of this Court in the case of Shital Prasad Choudhary (supra) held as under in paragraph 7: “It appears to us on a perusal of the materials on record that the vendors had the right, title and interest of holding no. 809, which covered a total area of 5 bighas and 15 dhurs. We are concerned only with one-fourth of the same which covers an 9 area of 1 bigha, 5 kathas, and 4 dhurs of land which has given rise to this batch of 14 writ petitions. The vendors had carved out small plots of the same (1 bigha, 5 kathas and 4 dhurs) and divided them into 14 blocks, each covering 1 katha and 8 dhurs. In view of the nature of the order that we are going to pass, we do not consider it relevant to decide the question of existence of rasta. By 14 different sale deeds executed and registered on separate dates, the lands were transferred in favour of the writ petitioners. As stated hereinabove, Shital Prasad Choudhary, the present petitioner, purchased two plots of land adjoining each other. Similarly, Panpati Devi purchased two plots of land adjoining each other. In view of the materials on record, we are convinced that the various writ petitioners had purchased the plots of land for construction of their own home and hearth each covering 1 katha, 8 dhurs.” As about recitals made in the subject sale deed, a Division Bench of this Court in Vidya Prasad Singh (supra) has found as under in paragraph 7: “In our view, the real issue is not whether there is actually a house over the land but the intention of the purchaser as available from the sale deed. The sale deed shows that the land though recorded as agricultural land in the survey records, has been described in the sale deed as a land meant for construction of house. The wordings are in local language and the meaning has been given correctly by the appellate authority which has also recorded its finding after local inspection that the land is suitable for constructing homestead. While allowing the writ petition by judgment and order dated 15.5.2007, the writ court was impressed by such intention expressed at the time of purchase itself in the sale deed and thereafter reliance was placed upon the judgment of this Court in the case of Urmila Devi vs. The State of Bihar & Ors. 1998 (1) PLJR 758 for holding that when the land in question is not agricultural land 10 and is held for residential purposes, as stated in the registered sale deed, the provisions of Section 16(3) of the Ceiling Act relating to pre-emption will not be applicable.” 10. Having regard to the averments made in the counter affidavit and the materials on record as reflected from the original as well as the Revisional Court order(s) and also keeping in view the recitals made in the sale deeds in question, in the light of ratio laid down in Shital Prasad Choudhary (supra) and Vidya Prasad Singh (supra), it can be safely inferred that the respondent No. 6 had purchased the aforesaid pieces of land for residential purposes which was not connected with agriculture or capable of being used in connection with agriculture and as such claim of preemption would fail. 11. The matter can also be viewed from yet another angle. It appears that on 4.5.1983, three sales were made in favour of respondent No. 6 by respondent No. 7 each in respect of 03 decimals of land appertaining to plot No. 2549. From the sale deeds (Annexures- 4 and 5 to supplementary affidavit), it appears that preemptor (writ petitioner) has been shown adjoining raiyats on eastern side of the vended plots. It is to be kept in mind that no claim for preemption was raised by the petitioner (preemptor) in respect of one sale which was effected in favour of son of respondent No. 6. From averments made in paragraph No. 11 4 and 5 of the counter affidavit filed on behalf of respondent No. 6 (extracted hereinabove) read in the light of sketch map enclosed as Annexure-A to the said counter affidavit, it appears that the sale which did not become subject matter of preemption intervened between the plots claimed by the preemptor (writ petitioner) and the vendees (by virtue of 02 sale deeds) which became subject matter of preemption. The averments made in the counter affidavit filed on behalf of respondent No. 6 have not been controverted by the writ petitioner by filing any reply or rejoinder thereto. It thus appears that the petitioner(preemptor) by not questioning the third sale in favour of son of respondent No. 6 lost his status as adjoining raiyat of the two vended plots by 02 sale deeds in respect whereof application seeking right of preemption was filed by the writ petitioner. Third aspect of the matter which is also reflected from the materials on record is that by reason of two separate and distinct sales effected on 4.5.1983, respondent No. 6 himself became adjoining raiyat of the plots vended under two sale deeds. Cumulative effect of all these facts appearing from the records also persuade this Court in negating the claim of preemption made on behalf of the writ petitioner. 12. This Court, In view of conclusions recorded hereinabove, does not wish to deal with the submission advanced on behalf of the petitioner that one revision 12 application was not maintainable before the revisional Court. The said question is, therefore, left open to be decided in any other appropriate case. 13. In the result, this Court does not find any merit in the application. It is accordingly dismissed. 14. There shall be no order as to costs. pkj ( Kishore K. Mandal, J)