IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.507 of 1998 Sachidanand Pandey son of late Damodar Pandey resident of vill.- Kajur, P.S.-Atri, Distt.-Gaya---------------Petitioner-Appellant Versus 1. The State Of Bihar 2. The Addl. Member Board of Revenue, Gaya 3. The Collector, Gaya 4. The Land Reforms Deputy Collector, Gaya 5. Tanai Singh, son of late Devaki Nandan Singh 6. Smt. Kamala Devi wife of Tanai Singh 7. Smt. Nirmala Devi, wife Shri Chandra Shekhar Pandey-----------Respondents. ----------- For the appellant : Mr. Lalan Kumar No.1, Advocate For the respondents : Mr. Sidhandra Nr. Singh, Advocate For the State : Mr. S.B. Kumar, S.C.-7 ----------- 7. 9.8.2011 The present appeal has been filed against the order dated 4.3.1998 passed by the learned single Judge in C.W.J.C. no.7735 of 1995 where the contention of the appellant to remit the matter back to the Member Board of Revenue for taking decision on merit has been rejected and it is decided that the land in question was a homestead land and is subjected to pre-emption. Learned counsel for the appellant has contended that the authorities below have concurrently held that the land was not subjected to pre-emption against which the respondents have preferred an appeal. It is contended that the appellant filed a revision against the order of the Collector, Gaya. The plea for pre-emption taken by the appellant herein is 2 that in the sale deed itself it is mentioned that the land in question was transferred by way of gift. An appeal was preferred before the Member Board of Revenue and the Member Board of Revenue has rejected the claim of the appellant on the ground of not giving notice to the respondents but however on merit the contention sought to be raised by the respondents that it is a homestead land and not subjected to pre-emption. Learned counsel for the appellant has contended that for the first time such plea has been taken before the Member Board of Revenue, that it is not a homestead land and it does not come under the purview of section 16(3) of the Bihar Land Reforms (Fixation of Ceiling, Area and Acquisition of Surplus land) Act, 1961 (hereinafter referred to as the ‘Act’). However, Learned counsel for the respondents has submitted that the appellant did not appear before the Member Board of Revenue although he was given opportunity for hearing. Lastly, the matter was decided on merit and he fairly submitted that it was a homestead land and does not fall under the purview of the pre-emption under section 16(3) of the Act. 3 However, learned counsel for the appellant has relied on the judgment of a Division Bench of this Court in support of his contention in the case of Hiralal Chauhan Vs. State of Bihar & ors. reported in 2004(2) PLJR 339 where a homestead land comes within the purview of Section 16(3) of the Act has been rejected. Under the above circumstances, we are of the opinion that the matter shall be remanded back to the Member Board of Revenue which shall reconsider the matter afresh in accordance with law as expeditiously as possible after giving opportunity of hearing to both the parties. In the result, the order of the learned single Judge is set aside and the Letters Patent Appeal stands allowed. However, respondents are at liberty to raise all the points as raised before this Court. Sudip ( T. Meena Kumari, J.) ( Vikash Jain, J. ) 4