CIVIL WRIT JURISDICTION CASE No.1279 OF 1993 ---------- In the matter of an application under Articles 226 and 227 of the Constitution of India. ---------- 1. Braj Kishore Sharma 2. Shiv Kishore Sharma, both sons of late Shrestha Narain Tiwary 3. Anand Kumar 4. Kumar Kishore, both sons of late Nand Kishore Sharma, resident of Village- Rampur Dudhpura, Police station- Samastipur Muffassil, District- Samastipur ---- Purchaser/Respondent/Opp.Party/ Petitioner. Versus 1. The State of Bihar 2. The Additional Member, Board of Revenue, Bihar, Patna. 3. The Additional Collector, Samastipur. 4. The Land Reforms Deputy Collector, Samastipur. 5. Ram Pragas Gosai (dead) 5.(i) Shambhu Goshwami, son of deceased respondent, resident of Village- Rampur Dudhpura, Police station-Samastipur Muffasil, District-Samastipur ---Pre- emptor/Appellant/Petitioner/Respondent. 6. Sanjay Mahto, son of late Ram Chandra Mahto 7.Umesh Mahto, son of late Rajo Mahto, resident of Village- Rampur Dudhpura, Police Station-Samastipur Mufassil, District- Samastipur ---- Vendors/Respondent/Opp.Party/--- Respondents. For the Petitioner : Mr. Aditya Prakash Sahay, Advocate. Mr. Manas Prakash,Advocate For the State : Mr. Rana Ishwar Chandra, A.C. to G.P.No.13. For the Respondent: Mr. Ashok Kumar Sinha, Advocate. No.5. ----------- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ******* S.K.Katriar,J. It arises out of proceedings under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred 2 to as ‘the Act’). The purchaser is the petitioner and prays to set aside the resolution dated 27.1.1993, passed by the learned Additional Member, Board of Revenue, in Case No. 208 of 1992 (Sri Ram Paryag Gosai V. Sri Siya Narayan Tiwari), whereby the orders of the learned first authority and the learned appellate authority have been set aside, and the pre-emption application has been allowed. 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. Shrestha Narain Tiwary purchased the following land from Ram Chandra Mahto and Rajo Mahto by a registered deed of absolute sale dated 11.2.1988 (Annexure-1): Old Khata Old Khesra New Khata New Khesra Area No. No. No. No. 266 1413 212 1792 0-06 ½ Dec. Makanmay plus 1 Kathas 10 dhurs It appears from a photocopy of the registered sale deed that it covers an area of 2880 Sq.ft. of land. It may be stated that Shrestha Narain Tiwary, the original petitioner, and Ram Chandra Mahto and Rajo Mahto, the original respondent nos. 6 and 7, died during the pendency of the present proceedings, and have been substituted by their respective heirs. 2.1. Ram Pragas Gosai filed an application under Section 16(3) of the Act claiming pre-emption with respect 3 to the land in question on the ground that he is the adjoining raiyat. He also died during the pendency of the present proceedings and has been substituted by his heirs. The claim for pre-emption was rejected by the learned first authority by his order dated 22.7.1991 (Annexure-4). Aggrieved by the same, the pre-emptor preferred appeal which was also rejected by the order dated 5.9.1992 (Annexure-5). Both the authorities concurrently held that the land in question was purchased for construction of a house, a Kachha structure was already existing from before by the side of P.W.D. road, and is on the fringes of Samastipur municipality. 2.2. Aggrieved by the order of the learned appellate authority, the pre-emptor preferred the revision application before the Board of Revenue which has been allowed by the impugned order wherein it has been held that the pre-emptor is an adjoining raiyat, and the land is not within the limits of Samastipur municipality. Hence this writ petition at the instance of the purchaser. 3. While assailing the validity of the impugned order, learned counsel for the petitioner (purchaser) submits that in view of the overwhelming evidence on record, it is evident that the petitioner purchased the land in question for construction of his house. He relies on the following reported judgments: (i)Mohammad Yasin Vs. Abdul Rauf & others, 1967 B.L.J.R. 49 (Paragraph nos. 3 to 5). 4 (ii) Kamlakant Goswami V. Balgobind Sah and others, 1971 B.L.J.R. 974 (Paragraph no.4). 4. Learned counsel for respondent no.5 has supported the impugned order and submits that, in view of the findings recorded by the learned revisional authority, the impugned order and the claim for pre-emption may be up-held. He submits that once the right of pre-emption has been recognized by the statute, it ceases to be a weak right and is on the same footing as any other statutory right. He relies on the following reported judgments: (i) Shyam Sundar and others vs. Ram Kumar and another, A.I.R. 2001 SC 2472. (ii) Suresh Prasad Singh Vs. Dulhin Phulkumari Devi, 2010(2) P.L.J.R. SC 167. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. It is undoubtedly correct to state that the learned revisional authority has recorded clear findings of fact that a pre-emptor is an adjoining raiyat. It is evident from the pleadings of the parties before the learned first authority that the purchaser did not set up any case to the effect that he is either a co-sharer or an adjoining raiyat with respect to the vended plot. His case is that he has purchased it for residential purposes. He himself purchased it for residential purposes and, on the other hand, the plot of land on the strength of which pre-emption is claimed is being used for residential purposes. We shall have the occasion to deal 5 with this aspect of the purchaser’s case at an appropriate stage. The learned revisional authority has also held that the land in question is not within the limits of the Samastipur municipality. To that extent learned counsel for the pre- emptor is right in his submission that the right of pre- emption is not a weak right, having been recognized by the statute. Therefore, once it is found by the court that the pre- emptor satisfies the conditions prescribed in the statute for pre-emption, it may be allowed. The two judgments of the Supreme Court relied on by the learned counsel for respondent no.5 are indeed to that effect. This, however, does not conclude matters. 6. We must consider the petitioner’s case as set up in his written statement. It has indeed been up-held by the learned first authority as well as the learned appellate authority. Apart from the findings of facts recorded by the two authorities, we have ourselves examined the materials on record which are to the effect that the vended plot was from before being used for residential purpose, and the petitioner also purchased the same for residential purposes. The area of the vended plot is quite small. It is further evident from the documentary evidence on record that the plot of land owned by respondent no.5 (the pre-emptor), on the strength of which he claims the right of pre-emption, is also being used for residential purposes. It is clear from the 6 sketch map on record that the vended plot and, and that of respondent no.5, are situate by the side of a P.W.D. road. It further appears to us that both the plots are on the fringes of the Samastipur municipality and is now part of the Samastipur township. It creates an impression in our minds that the lands are no longer fit for, a capable of, being used for cultivation. Learned counsel for the petitioner rightly relied on the two judgments, both of Division Benches, in Mohammad Yasin (supra), and Kamlakant Goswami (supra). Indeed the facts of the present case were quit akin to the case of Md. Yasin. The Division Bench of this Court held as follows in Mohammad Yasin (supra) case: “ The question then becomes a pure question of fact as to whether on the facts found above the Commissioner was justified in holding that the disputed land is outside the scope of the Act. Considering the smallness of the area (10 dhurs), its situation being just adjacent to a public road, and the fact that the other portions of the same plot 1269 are actually in use for non-agricultural purposes and there is also a building standing within the dispute land, the Commissioner was justified in holding that the land is outside the scope of the Act. There is no finding to the effect that the building within the plot which has been recently repaired was actually in the occupation of the vendor for purposes of agriculture or horticulture or for the purpose of an orchard. It is true that the Kanungo’s report shows that there is one Gular Tree and one Kadam tree, and one small mango tree in a portion of the land in question, but it was open to the Commissioner to hold that the existence of these three trees will not suffice to show that the disputed land is used for the purpose of an orchard.” 7. The judgment of another Division Bench in 7 Kamlakant Goswami (supra) is also to the same effect. 8. In that view of the matter, it appears to us that it would be better exercise of discretion to lean in favour of the purchaser, inter alia, for the reason that he purchased the land for construction of his house. 9. In the result, we would prefer to disagree with the order of the learned Board of Revenue. The impugned order dated 27.1.1993, is set aside and the claim for pre-emption is hereby rejected. The writ petition is allowed. In the circumstances of the case, there shall be no order as to costs. B.P. Verma, J. I agree. Patna High Court, Patna. Dated 29th October,2010 Vinay/N.A.F.R. ( S. K. Katriar,J. ) (Birendra Prasad Verma, J.)