CIVIL WRIT JURISDICTION CASE No.6806 OF 1991 In the matter of an application under Articles 226 and 227 of the Constitution of India. SHRI PARMANAND PRASAD, SON OF LATE BANWARI LAL SAH ALIAS BANWARI LAL BHAGAT, RESIDENT OF MOHALLA BABUAGANJ, KHAGARIA TOWN, P.S. AND DISTRICT KHAGARIA. ---------------------------------------------------------------------------------------------------- PETITIONER Versus 1. ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR, PATNA 2. THE COLLECTOR, KHAGARIA 3. THE DEPUTY COLLECTOR, LAND REFORMS, KHAGARIA 4. SMT. MEERA DEVI, WIFE OF SHRI SURENDRA PRASAD, RESIDENT OF MOHALLA BABUAGANJ, KHAGARIA TOWN, P.S. AND DISTRICT KHAGARIA. 5. MOSSOMAT INDIRA DEVI WIFE OF LATE LAXAMI SHANKAR PRASAD 6. SHRI RAJNISH KUMAR (MINOR) 7. MAMTA DEVI (MINOR) 8. GURIA KUMARI (MINOR) 9. CHHOTI KUMARI (MINOR) NO. 6 IS MINOR SON AND NOS. 7 TO 9 ARE MINOR DAUGHTERS OF LATE LAXAMI SHANKAR PRASAD, MINORS UNDER THE GUARDIANSHIP OF MOSSOMAT INDIRA DEVI, THEIR MOHTER, NATURAL GUARDIAN AND NEXT FRIEND. -------------------------------------------------------------------------------------------- RESPONDENTS For The Petitioner : Mr. Jagdish Prasad Bhagat, Advocate For The Respondent : None. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. Petitioner is the pre-emptor and claims that he is a boundary raiyat to the lands purchased by respondent no. 4 appertaining to Thana No. 254, Tauzi No. 534, Jamabandi No. 34, Khata No. 1, Khesra 2 No. 12M, comprising an area of 3 Bighas 10 Kathas. 2. The pre-emption application was filed within time. The D.C.L.R., Khagaria originally rejected the application. The petitioner went in appeal. The matter was remanded by the Collector for spot verification. After spot verification, the D.C.L.R., Khagaria again rejected the pre- emption application on 1.9.1990 on the ground that the pre-emption application has been filed for lands which would fall in excess of the ceiling area and that the petitioner is not the boundary raiyat. The Collector, Khagaria and Member, Board of Revenue, on 10.1.1991 and 13.8.1991 respectively dismissed the appeal and the revision on the ground that it is time barred and no proper explanation had been given by the petitioner to explain the delay. 3. In my opinion, delay of 37 days could have been condoned as the reason given by the petitioner was that due to festivals of Durga Puja, Deepawali and Chhath Puja, he was not able to take proper steps within 3 time to file appeal. It has been held by the Supreme Court in the case of Krishna Kumar Choudhary Vs. Alliance Agro Industries (P) Ltd. & Ors. [1991 (1) PLJR (SC) 3] that the Land Reforms Deputy Collector had the power to condone the delay in filing of the pre-emption application under Section 29 of the Limitation Act. Paragraph 2 of the judgment of the Supreme Court in the case of Krishna Kumar Choudhary, reads as follows:- “We are of the opinion that Section 29 of the Limitation Act applies to the facts and circumstances of this case and that it is now for the Deputy Collector, Land Reforms and the Collector under the Act to consider whether the delay in filing the proceeding should be condoned. Thereafter the Deputy Collector Land Reforms and the Collector under the Act will dispose of the case on the remaining points in accordance with law.” 4. In any event, this Court finds that the reasons put forth by the petitioner for condoning the delay are quite justified. The fact remains, that the Collector and the Member, Board of Revenue have not considered 4 the case of the petitioner on merit. This Court finds that the lis is pending for twenty years and it would take another couple of years to decide the matter, if this Court remands the matter to the Collector to be considered on merits. Therefore, I shall discuss the case of the petitioner on merits. 5. On merit, two reasons have been given by the D.C.L.R. for rejecting the application filed by the petitioner. It is firstly stated that the petitioner is not the boundary raiyat as there is a „Bandh‟ situated between the lands of the petitioner and the vended lands. Learned counsel for the petitioner has annexed a map which indicates that in fact there is a „Bandh‟ between the lands vended and the lands which are allegedly on the boundary of the vended lands. An explanation is being given by the petitioner that 4 Acres and 11 decimals of the land belonging to the petitioner were acquired for the purposes of constructing a Bandh and as such it cannot be said that the petitioner is not on the boundary raiyat. It would be apparent that the „Bandh‟ 5 existed even prior to the filing of the pre- emption application. This fact can be deciphered from Annexure A the sale deed of a co-sharer executed for the same plot of land, which shows the „Bandh‟ in the boundary. After the acquisition proceeding, obviously the land no longer belongs to the petitioner and in any event it cannot be denied that there is a Bandh between the lands of the petitioner and the lands which have been vended. If there is any land intervening the disputed land and the land which allegedly falls in the boundary such as a canal, a nala, a bandh or the like, it would mean that the land is not contagious to the vended land and there is no question of fragmentation of the holding. Therefore, this Court finds that in the facts stated aforesaid the petitioner is not on the boundary on the lands in question. I may refer to the counter affidavit filed on behalf of respondent no. 4. At paragraph 6, it has been specifically stated that the lands of Plot No. 12 which are said to be on the boundary of the lands belong half and half to the petitioner‟s father and 6 his brother. The elder brother Binod Shankar was allotted half on the south side whereas Laxmi Shankar Prasad the vendor of opposite party no. 4 was on the western boundary. Binod Shankar sold half of his land in 1978 to Arun Barun Rakshit. In the sale deed the boundary is shown in the western boundary of the vended plot as a „Bandh‟. This fact also does not support the case of the petitioner, that he is in the boundary of the vended plot. 6. The second reason put forth by the D.C.L.R. is that the petitioner purported to acquire lands more than ceiling area. The petitioner has explained this aspect of the matter by stating that after 11 acres of his land were declared surplus, subsequently 4 Acres and 11 decimals were acquired by a Land Acquisition Proceeding. The Collector had called for an enquiry regarding the acquisition proceeding however, no report was received. Therefore, the Court could not have concluded that the petitioner was not entitled to file an application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and 7 Acquisition of Surplus Land) Act, in absence of proper enquiry on the said issue. 7. In the facts aforesaid, this Court finds that the petitioner has not been able to substantiate his case that he is on the boundary of the vended land. This writ application is, thus, dismissed. Patna High Court, 9th of November, 2011 N.A.F.R./Sanjay ( Sheema Ali Khan, J.)