IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.612 of 2008 Raksha Bhagat Versus Shri Kishun Singh @Shri Krishna Singh and others ----------- 6 28.07.2011 Heard Mr.Shashi Shekhar Diwedi, learned counsel appearing for the appellant and Mr. Dhrub Narayan, learned Sr.Counsel assisted by Mr. Dhananjay Kumar, learned counsel for the private respondent. This Letters Patent Appeal has been filed against the order dated 27.6.2008 passed in CWJC. No. 9065/2005(Shri Kishun Singh@Shri Krishna Vrs.Raksha Bhagat and others). The writ filed by the petitioner (private respondent no 4) was against the order of the Additional member, Board of Revenue dated 4.4.2005 passed in case no.271/2003 by which the order of the collector, Gopalganj dated 6.10.2003 passed in Ceiling Appeal No.10/2002 affirming the order dated 13.3.2002 passed in Ceiling Appeal No. 1/2001- 2002 had been upheld and the case filed by the private respondent was dismissed. The issue involved in the present case is with regard to proceeding under section 16(3) passed under the Bihar land Ceiling Act, 1961. The appellant was the applicant for pre-emption with regard to land in question before the original authority. Such application came to be allowed and this gave rise to appeal being filed before the Collector. The Collector also upheld the claim of the pre-emptor leading to revision 2 being filed before the Board of Revenue. The Board of Revenue also confirmed the orders passed by both the lower authorities. In all the said orders there are concurrent findings of fact to the effect that the preemptor was the adjoining raiyat and the nature of the land was agricultural. Learned counsel for the writ petitioner had challenged this finding on the ground that the nature of the land stood modified because of the use of the said land including the fact that in the whole locality residential houses were being constructed and the plot having a small area is unfit for the agricultural purpose. It is also his case that evens the present appellant (preemptor Uncle), whose land is adjacent to the land in question, had built a residential house on the same. Further it was his case that even a case that even from the initial recital in the sale deed land was described as an irrigated residential. Learned single Judge after hearing the parties was inclined to interfere in the matter and by the order under appeal quashed the order of the Addl. Member of the Board of Revenue, Bihar, Patna, which had upheld the earlier orders passed by the Collector as well as the Sub- divisional Officer. It was also held that the present appellant was not entitled to invoke the provisions of Section 16(3) in first paragraph of the petition the Act in detail is written of the Bihar Ceiling Act, 1961. The learned single Judge had interfered in the matter on the premise that the said sale deed indicated that the land was agricultural but used for residence and by fact that there was a residential house on the adjacent plots. The appellant being aggrieved by the said order has preferred the present LPA(Full form) 3 Learned counsel for the appellant submits that there was enough material before the authority concerned, who had held in his favor while upholding in application for pre emption. He further submits that it is a well settled principle of law that once there is concurrent finding of fact at various levels, the writ court would not likely to interfere and unsettle the said possession. He further submits that he being an adjoining raiyat has not been disputed even by the learned Single Judge since the order has been passed against him. The Learned senior counsel for the private respondents (writ petitioner) on the other hand submits that though he raised two very basic points before the authorities, the same was not considered. The first point raised by him was that the application for preemption under Section 16(3) of the Bihar land Ceiling Act, 1961 was not in accordance with the mandatory requirements of the Act and this was fit to be rejected .The second contention of the learned senior counsel is that the nature of the land because of its use, had changed and due to this change., the application for preemption under the statute did not hold. He further submits that this issue was never seriously contested or dealt upon by any authorities when the order was passed against him. He also submits that the very fact of the present appellant being an adjoining raiyat is a contested question of fact and according to him he does not come under the category of adjoining raiyat for the reason that after partition his land does not touch the boundary of the land in question and thus he has executed his deeds either co-sharers or adjoining raiyats under the Bihar Land Ceiling Act, 1967. 4 After considering the rival submissions of the party, this Court feels that the order under Appeal is not sustainable for the reason that there were houses in the vicinity and that the initial recitation in the sale deed was that of an irrigated residence, the concurrent findings of fact by all the three authorities could not have been turned off and further it could not be held that the very application under Section 16(3) of the said Act, could not be invoked by the appellant. In that view of the matter, the order under appeal is setaside. In view of the facts and circumstances and after hearing the parties, this Court is inclined to remit back the matter to the member , Board of Revenue for fresh consideration of the matter in accordance with law on the points as to whether the application filed by the appellant was in accordance with the requirement of the statute i.e. Bihar Land Ceiling Act,1961 , as well as to ascertain whether actually the appellant, was the adjoining raiyat in the statute. If it reaches to a finding in favour of the appellant, then the order of the authority shall stand maintained. On the other hand, if it is found that the contention of the private respondent (writ petitioner) is true, and then orders beginning from that of, the SDO shall stand set aside. It is needless to say that the Member Board of Revenue while hearing the parties shall give adequate opportunity to them to raise their cases and also call for the official records from the concerned authority and after going through the same pass a detailed reasoned order. 5 It is to be clarified that such consideration would be with reference to the date when the pre-emption application was made. Let the whole exercise be completed within a period of six months from the date of receipt /production of a copy of this order before the said authority. With the aforesaid observation/directions, the appeal stands allowed to the extent as indicated above. Sudha/ Sudip (T.Meena Kumari,J.) ( Ahsanuddin Amanullah, J.)