IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5677 of 2005 SMT.PARMILA DEVI WIFE OF SRI SOHAN SAH, R/O- VILLAGE – RAJASAN, P.S.- BIDUPUR, DISTRICT- VAISHALI Versus 1. THE ADDL.MEMBER BOARD OF REVENUE, BIHAR, PATNA 2. THE COLLECTOR, VAISHALI AT HAJIPUR. 3. DEPUTY COLLECTOR LAND REFORMS, HAJIPUR, DISTRICT- VAISHALI 4. KAUSHAL KISHORE PRASAD, S/O- LATE JAGARNATH PRASAD, R/O- VILLAGE RAJASAN, P.S.-BIDUPUR, DISTRICT- VAISHALI 5. SHAMBHU SHARAN SINGH, 6. SANTOSH KUMAR BOTH SONS OF LATE HARIHAR SINGH, R/O- VILLAGE RAJASAN, P.S.-BIDUPUR, DISTRICT- VAISHALI ----------- 4 24.03.2011 Petitioner is purchaser of two pieces of land each measuring 7 ½ dhurs by two sale deeds executed on 30.8.1995 and registered on 13.11.2000. She is aggrieved by resolution dated 28.3.2005 passed by respondent Board of Revenue (Annexure-3) in Revision Case No. 249 of 2004 whereby the revision preferred by the respondent No. 4 was allowed and the appellate order dated 17.9.2004 (Annexure- 2) passed by the respondent No. 2 in Appeal Nos. 11/2001- 02 and 12/2001-02 was set aside. Background facts leading to the present application may briefly be stated: Two sale deeds were registered on 13.11.2000 executed by respondent Nos. 5 and 6 in favour of the writ petitioner. Each sale deed covered an area of 7 ½ dhurs. Thus a total area of 15 dhurs appertaining to Khata No. 610 , Plot Nos. 937/1658 situated in mauza Rajasan in the 2 district of Vaishali were vended in favour of the petitioner. Since the name of the father of respondent No. 4 figured as adjoining raiyat on eastern side of the plots, a claim of preemption was raised by respondent No. 4 by instituting proceedings with respect to 02 sale deeds giving rise to L.C. case No. 38/2000-01 and 39/2000-01. On notice, the writ petitioner appeared in those proceedings by filing rejoinder(s)/show cause(s). It appears that the D.C.L.R. held local inspection in presence of parties and thereafter by a common order dated 19.3.2001 (Annexure-1) allowed both the preemption applications. The claim of preemption raised by respondent No. 4 was thus upheld. Aggrieved over the aforesaid order(s), the writ petitioner filed two appeals being Appeal Nos. 11 and 12 of 2001-2002. The respondent Collector by a common proceeding dated 20.8.2001 allowed the appeal(s) and set aside the order(s) passed by respondent No. 3 (D.C.L.R., Hajipur) Feeling aggrieved by the aforesaid order allowing the appeals preferred by the writ petitioner, respondent No. 4 filed a revision application being Board Revision No. 181/2001 before the respondent Board of Revenue. By resolution dated 14.2.2003 (Annexure-C to the counter affidavit of respondent No. 4) remanded the matter back to the respondent Collector, the appellate Court, for fresh consideration and decision. After remand, the appeals were again taken up and after hearing 3 both the sides, the respondent Collector by a common order dated 17.9.2004 (Annexure-2) again allowed the appeals finding therein that the lands were obtained for residential purpose as reflected from the sale deed(s). A very small area was purchased for high consideration amount. It was close to public road and that writ petitioner had no other land in the said mauza/village. It was also found that several houses had come up in the adjoining areas and as such the land had changed its colour and use. Aggrieved by the aforesaid order, respondent No. 4 preferred one revision application being Board Revision No. 249 of 2004 before the respondent Board of Revenue. Respondent Board of Revenue by resolution dated 28.3.2005 (Annexure-3) allowed the revision application, set aside the appellate order and restored the order passed by the respondent D.C.L.R. whereby claim of preemption raised on behalf of respondent No. 4 was upheld leading to filing of the present writ application. A counter affidavit has been filed on behalf of the contesting respondent No. 4 which is placed on record. The State has not filed any counter affidavit. I have heard learned counsels for the petitioner, respondent No. 4. and the State. Learned counsel appearing in support of the writ application submitted that the revisional order dated 28.3.2005 4 (Annexure-3) passed by respondent Board of Revenue is bad in law and fit to be interfered with on the ground that the land purchased by the petitioner was fit for residential purposes on which residential house has been constructed. Considering the topography and the area of the vended land/plots, it had rightly been held by the Appellate Court that the land has changed its colour/use as several residential structures had come up on the adjoining areas and that it was bounded at least on two sides by public road. It is submitted that in the light of finding of the Appellate Court that the petitioner is land less lady and does not hold any other land in the said mauza/village it cannot be said to be land of a raiyat or homestead of a raiyat and as such would not be covered by the provisions contained in Section 16(3) of the Bihar Land Ceiling Act (for short “the Act”). Learned counsel for the petitioner has placed reliance on the following judgments: (i) A.I.R. 1996 Patna 145 (Deo Narain Roy versus State of Bihar & Ors) (ii) 1997 (1) P.L.J.R. 848 (Nathuni Singh Yadav versus State of Bihar). (iii) 2004 (2) P.L.J.R. 339 (Hiralal Chauhan versus The State of Bihar & Ors) (paragraph 8) (iv) 2011 (1) P.L.J.R. 799.(Gauri Shanker Prasad Singh versus The State of Bihar & Ors) (paragraphs 5 5, 6 and 7) Thereafter, It is next contended that two sale deeds were registered as a result whereof two preemption applications were filed which gave rise to two appeals but the respondent No. 5 filed only one revision application before the Respondent Board of Revenue and as such the same ought to have been held to be not maintainable in law as findings recorded by the Appellate Court at least in one case has remained unchallenged In order to support his contention that one revision application preferred before the respondent Board of Revenue was not maintainable, reliance has been placed on the following case laws: (i) A.I.R. 1997 S.C. 3760 (Ram Prakash versus Smt. Charan Kaur & Anr.) (ii) 2005 (2) P.L.J.R. 476 (Sabitri Devi vs. Rangnath Tiwary). Per contra, learned counsel appearing on behalf of respondent supported the impugned resolution of the Board (Annexure-3). It is submitted that even the homestead land of a land holder would be covered by the provisions of Section 16(3) of the Act as has been found by a Division Bench of this Court in the case of Hiralal Chauhan v. State of Bihar since reported in 2004 (2) P.L.J.R. 339 (paragraph 8). It is submitted that the respondent D.C.L.R. in 6 view of the claims and counter claims thought it appropriate to make local inspection of the lands and, accordingly, the same was done. Keeping in view the facts appearing in the said report and materials on record, the said authority rightly found that the subject land was the land amenable to the provisions contained under Section 16(3) of the Act. Learned counsel next contended that the applications were heard analogously and by a common order, the same were dealt with at every stage. He contends that the said issue is technical in nature and valid/lawful claim(s) of a party cannot be defeated merely on technical grounds. Reliance in this regard has been placed on 2004 (1) P.L.J.R 423 (DB) ( Dina Nath Prasad v. State of Bihar) and 2004 (1) P.L.J.R. 332 (S.J.) I have considered the submissions advanced on behalf of the parties. The main issue involved in the case is whether the land purchased by the writ petitioner is covered by the provisions contained in Section 16(3) of the Act. Related issue would be whether petitioner is a landless lady. If the aforesaid issues are decided in favour of the petitioner then there is no need to consider and adjudicate upon the rival submissions advanced on behalf of the parties regarding maintainability or otherwise of one revision application having been filed by respondent No. 4 against common order dated 17.9.2004 (Annexure-2) passed on the 7 two appeals preferred by the writ petitioners. Section 16(3) of the Act reads as under: “(3) (i) When any transfer of land is made after the commencement of the Act to any person than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document, of the transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed: Provided that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten percent thereof is deposited in the prescribed manner within the said period. (ii) On such deposit being made the co- sharer or the raiyat shall be entitled to be put in possession of the land irrespective of the fact that the application under clause (i) is pending for decision: Provided that where the application is rejected, the co-sharer or the raiyat as the case may be, shall be evicted from the land and possession thereof shall be restored to the transferee and the transferee shall be entitled to be paid a sum equal to ten percent of the purchase money out of the deposit made under clause (i). (iii) If the application is allowed, the Collector shall by an order direct the transferee to convey the land in favour of the applicant by executing and registering a document of transfer within a period to be specified in the order and, if he neglects or refuses to comply with the direction, the procedure prescribed in Order 21, rule 34 of the Code of Civil Procedure, 1908 (V of 1908), shall be, so far as may be followed. It is thus seen that the words „land‟ and „raiyat‟ appear therein. Land has been defined in Section 2(f) of the Act which reads as under: “(f) “land” means land which is used or 8 capable of being used for agriculture or horticulture and includes land which is an orchard, kharhur or pasturage or [forest land or [also the land] perennially submerged under water]or the homestead of a land- holder; Explanation I- Homestead” means a dwelling house for the purpose of living or for the purpose of letting out on rent together with any courtyard, compound, attached garden, orchard and out building and includes any out building for the purpose connected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house. Explanation-II xxxxxx.” The term „raiyat‟ has been defined in Section 2(k) of the Act which reads as under: “(k) “raiyat” means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants or with aid of partners, and includes also the successors in interest or persons who have acquired such a right and includes, in the district of Santhal Pargans‟ a village head man in respect of his private land, if any, but does not include in the areas to which the Chotanagpur Tenancy Act, 1908 (Ben. Act VI of 1908, applies a Mundari, Khuntkattidar or a Bhuinhar;” In order to claim right of preemption, it has to be demonstrated by the preemptor that the land is used or capable of being used for Agriculture or Horticulture and/or homestead of a land holder and secondly the same has been acquired by a raiyat for the purpose of cultivating it by himself or by members of his family. It is thus to be seen as to whether the vendor and the vendees hold land for the purpose of agriculture and, therefore, raiyat within the 9 meaning of the Act. In this connection, the observation of the Division Bench in the case of Nathuni Singh Yadav (supra) in paragraph 6 may usefully be quoted which runs thus: “ 6. In Mukhi Mali v. State of Bihar (1979 BBCJ 151) it has been held that application for pre-emption will lie only when all the three parties, the transferor, the transferee and the pre-emptor are landholders. The following observations may be quoted from paragraph 8 of the judgment:- “ In the case of Kamla Kanta Goswami vs. Balgobind Sah (1971 BLJR 974) it was held that the land must be a land which is either used or capable of being used for agricultural and horticultural purpose and even if it is homestead it must be of a land holder as defined in Section 2(g). It is very clear from the observations that if the land is not homestead of a land holder that is a raiyat engaged in agriculture it will not be a “land” within the meaning of the Act and the provision of Section 16(3) will not be applicable to it. This decision was affirmed later on by a Full Bench of this Court in Fakir Mohammad vs. Salahuddin (AIR 1975 Patna 119) : 1975 PLJR 1 where the same view was expressed and it was observed that “homestead” must be a homestead of the land holder. In view of the above authoritative decisions it is not necessary to dilate on the question inasmuch as on the facts it is clear that the vended land cannot be held to be a “land” of a land holder within the meaning of the Act and once it is so held the provision of Section 16 (3) of the Act would have no application.” These observations were made in the context of vendor and not the vendee. But it is well known that right of pre-emption is a weak right of pre-emption is a weak right which can be defeated by any legitimate means (See Bishan Singh v. Khazan Singh, AIR 1958 Supreme Court 838).” 10 Similar view has been taken in subsequent judgment since reported in 2005(2) P.L.J.R. 476 (Sabitri Devi versus Rangnath Tiwary). In the case of Dev Narayan Rai versus State of Bihar (A.I.R. 1996 Patna 145) a learned Single Judge of this Court relying on earlier judgment of this Court since reported in (1994) 1 B.L.J. 281 Hari Narayan Pandey held as under: “ In the instant case, the petitioner‟s statement on oath that the plot of land purchased by him is a homestead land and the purchase thereof is for the purpose of construction of Dalan has not been disputed. As such, in view of the decision of this Court in the case of Hari Narayan Pandey, (1994 (1) BLJ 281 (supra), the provision of Section 16(3) of the Act does not ordinarily apply to the sale of the plot of land in question.” It has been submitted on behalf of the petitioner with reference to the sale deeds in question (Annexure-A and B to the counter affidavit) that it has been reiterated in the sale deeds itself that small tracts of land is/are purchased for the purpose of construction of residential premises of the petitioner. It is to be kept in mind that the petitioner is the daughter of the village and is married to a person who resides in different district. Respondent Collector in his order dated 17.9.2004 (Annexure-2), on a consideration of the submissions of the parties and after perusal of the records, found that the land is bounded on two sides by government roads. Even the inspection report of the D.C.L.R. indicates that there was a newly 11 constructed/half built house thereon. The said Court has also found that the adjoining areas have become purely residential areas. The preemptor has not brought on record any material to indicate that the purchaser had any land fit for agriculture in the said village/mauja apart from the land acquired under the subject sale deeds. Preemption is a weak right nonetheless it is statutory in nature. It has been interpreted on numerous occasions that if the land has changed its nature/use and has become fit for residence then the said weak right would fail. It is further to be kept in mind that for getting the said right enforced, the preemptor has to demonstrate that the vendee and the preemptor are land holders/raiyats. It is found from the Appellate Court order (Annexure-3) that exemplary high consideration money was paid by the purchaser for a very small area (less than a katha). It is admitted position that on two sides of the vended plot(s), there is road one of them constructed by Public Works Department of the Government. The preemptor has not been able to satisfy this Court with reference to the materials on record that the writ petitioner hold any other land besides the subject land in the said village/mauja. It can, therefore, safely be inferred that she is not holding the subject land as a homestead for being used and/or capable of being used in connection with cultivation/agriculture. 12 Regard being had to the aforesaid facts and circumstances appearing from records and in view of my discussion made above, this Court is satisfied that the revisional order requires to be interfered with. Accordingly, the application is allowed. The revisional order 28.3.2005 passed in Case No.249 of 2004 is quashed and set aside. There shall, however, be no order as to costs. pkj ( Kishore K. Mandal, J)