IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3076 of 2006 Deo Nandan Ram son of Late Tilakdhari Ram R/o vill-Nawadih, P.O. Malhara, P.S. Kutumba, Dist. Aurangabad. ---Petitioner Versus 1. The State of Bihar through its Chief Secretary Old Secretariat, Patna, Bihar. 2. Md. Yahia Shah son of late Gulam Gaos Shah R/o vill. Nawadih, P.S. Kutumba, Dist. Aurangabad. 3. Most. Dulariya Kuar W/o Babu Ram Paswan 4. Arjun Paswan son of late Babu Ram Paswan Both R/o vill Nawadih P.O. Malhara, P.S.Kutumba, Dist. Aurangabad (Bihar) ---Respondents. For the petitioner : Mr. Yogendra Kumar Singh, Advocate. For the respondent no.2 : Mr. Subodh Kumar Barnwal, Advocate. ----------- 04 18.05.2011 Petitioner is purchaser. He is questioning sustainability of resolution dated 19.12.2005 (Annexure-8) passed by respondent, Additional Member Board of Revenue in case no. 119 of 2004 ( Yahiya Sah vs. Most. Dularia Devi) whereby the claim of preemption was upheld at the instance of the preemptor/respondent no.2. Background facts in a nutshell are as under:- 2 ¾ decimals of land appertaining to khata no. 6, plot no. 236/270 Mouza, Nawadih, P.S.Kutumba, in the District of Aurangabad was vended by respondent nos. 3 and 4 to the writ petitioner by a deed of sale (Annexure-1) on 30.11.2000. Respondent no.2 claiming himself as adjoining raiyat of the vended plot lodged a proceeding Under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 ( for short „the Act‟) giving rise to L.C. case no. 01 of 2000. On notice, purchaser appeared and resisted the claim. 2 On a consideration of the materials on record, respondent DCLR by a proceeding dated 14.06.2001 (Annexure-3) allowed the claim of preemption raised by respondent no.2. Aggrieved by the aforesaid order the writ petitioner filed appeal being L.C. case no. 95 of 2000. The said appeal was allowed by order dated 24.12.2001 (Annexure-4). The preemptor/respondent no.2 assailed the aforesaid order before the Board of Revenue by filing revision no. 48 of 2002. On a consideration of the matter, respondent Board of Revenue, by resolution dated 30.09.2002 (Annexure-5) set aside the appellate order and remanded the case back to the appellate Court/authority for consideration of the matter afresh after making local inspection of the land/plot in question. Accordingly, after noticing the parties, local inspection was carried out by the appellate Court/authority. The report whereof is Annexure-6. On a consideration of the submissions of the parties and the materials on record, including the factual position crystallized by local inspection, the appellate Court by a proceeding dated 05.03.2004 (Annexure-7) allowed the appeal and negated the claim of preemption raised in respect of the vended land by preemptor/respondent no.2. Respondent no.2 again filed revision thereagainst being Rev. case no. 119 of 2004 which was allowed by resolution dated 19.12.2005 (Annexure-8) leading to filing of the present writ petition. Learned counsel for the petitioner submits that a very small tract of land was conveyed in favour of the petitioner. The recitals in the sale deed indicate that the purpose for purchase of a 3 land close to village in question was for construction of residential house. It is next submitted that the purchaser/writ petitioner is also adjoining raiyat of the subject land by reason of sale made in his favour by Annexure-2 which was registered/executed in the year 1999. Learned counsel for the respondent no.2, on the other hand, submits that in the sale deed itself there is recital that the land is agricultural. The vendors and vendee are shown as agriculturists and as such the claim of preemption would not fail. It is highlighted that there is findings of the Courts below that respondent no.2 is adjoining raiyat to the vended plot. Considering the stand and the counter stand of the parties the Board of Revenue by its previous resolution remanded the case for local inspection. The local inspection of the land in question was made by the Appellate Court after due notice to the parties. The said report is on record as Annexure-6 which reads as under:- “ tk¡p izfrosnu ekuuh; vij lnL;] jktLo i"kZn] fcgkj] iVuk ds vkns'k fnukad 30-9-2002 ds funsZ'k ds vkyksd esa nksuks i{kksa dks iwoZ lwpuk nsdj v0fu0@g0 deZ0 ds lkFk fooknh LFky ij iapk;r ds eqf[k;k ,oa xzkeh.kksa rFkk mHk; i{kksa ds le{k LFky dk tkWp fd;k ,oa ik;k fd vkosnd nsounu jke }kjk Ø; dh x;h Hkwfe ds [ksljk ua0 236@270 jdok 0-02]3@4 Mh0 Hkwfe ds n0 ,oa mrj esa foi{kh vkgh;k lkg dh tehu gS ftlesa nf{k.k Hkkx esa 4 vkgh;k lkg dk edku cuk gqvk gS if'pe Hkkx esa yxHkx vk/ks fgLls esa vkfg;k lkg dh edku gS rFkk 'ks"k Hkkx esa vihydrkZ nsouanu jke dk edku gS fookfnr [ksljk ls gksdj vkosnd dk vkus tkus dk jkLrk gSA fookfnr [ksljk d`f"k dh Hkwfe ugh gS ;g ckl ¼okl½ dh Hkwfe gSA tgka rd vkosnd ds Hkwfeghu gkus dk iz'u gS jktLo vfHkys[kksa ls izrhr gksrk gS fd vkosnd dks fofHkUu xzkeksa esa 3 ,dM+ ls vf/kd Hkwfe gSA g0 vLi"V 3-3-04 vij lekgrkZ] vkSjaxkckn” Considering the facts appearing from the local inspection and the recitals made in the sale deed itself, this Court is satisfied that a small tract of land purchased by the writ petitioner is not the land capable of being used for agriculture and/or in connection with agriculture. The purposes for which the said provision has been engrafted is, therefore, not bound to be sub served. Law is well-settled that if the subject land changed its colour, use and character, the same will not be amenable to the proceeding under Section 16(3) of the Act. In the case of (Vidya Prasad Singh vs. The State of Bihar & Ors.) 2010(2) PLJR 17 a Division Bench of this Court found and held that if a small piece of land has been purchased for the purpose of construction of residential house which is recited in the sale deed itself then the said sale cannot be subjected to proceeding under Section 16(3) of the Act. 5 For all these reasons, the application is allowed. Impugned resolution dated 19.12.2005 (Annexure-8) passed by respondent, Additional Member Board of Revenue in revision case no. 119 of 2004, is quashed and set aside. There shall be no order as to costs. Sym (Kishore K. Mandal, J.)