IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13752 of 2002 JANKI SHARAN SINGH, S/o Late Karoo Mahto, R/o Village- Nauranga, P.S.-Bind, District- Nalanda. Versus 1. THE STATE OF BIHAR 2. The Deputy Collector Land Reforms, Biharsharif, Nalanda. 3. The Additional Collector, Biharsharif, Nalanda. 4. The Additional Member, Board of Revenue, Bihar, Patna. 5. Dukhi Prasad, S/o Late Etwari Mahto, R/o Village- Nauranga, P.S.- Bind, District- Nalanda. 6. Balgovind Prasad, S/o Late Etwari Mahto, R/o Village- Nauranga, P.S.-Bind, District- Nalanda. ----------- 9. 16-08-2010 Petitioner has challenged the order dated 07-08-2002 passed by the Additional Member, Board of Revenue, Patna in Revision Case No./ 236 of 2001 setting aside the orders of the D.C.L.R. and Additional Collector, Nalanda in favour of the petitioner. The facts are that the petitioner had purchased three decimals of Belagan land pertaining to Khata No. 28 Plot No. 498 measuring 3 decimals for consideration amount of Rs. 42,000/-. The sale deed described the lands as Belagan land. It is specifically stated in the said deed, the vendor is transferring his house along with the land to the petitioner. The house has been described in the sale deed. It is stated that it is a Khaprail House made of mud measuring 20’ x 10’ sq. feet which was constructed in 1935 and was being used by the vendor for residential purposes. It may be stated here that this land has come to the possession of the vendor through a decree passed in Partition Suit No. 83 of 1972. The case of the respondent nos. 5 and 6 is that they are 2 adjoining raiyats and also co-sharers of the land in question and as such they are entitled to purchase the land, as provided by virtue of Section 16(3) of the Bihar Land Reforms (Fixation of ceiling Area & Acquisition of Surplus Land) Act. The D.C.L.R. finding that the land in question is being used for purely residential purpose and not for agriculture purpose, dismissed the application. Likewise Additional Collector also dismissed the application on the same footing as the D.C.L.R. However, the Additional Member, Board of Revenue, Patna, by order dated 07-08-2002 set aside the aforesaid two orders of the D.C.L.R. and the Additional Collector on the basis of the decision reported in 1975, PLJR Page 01. At the very outset I may state that the facts of the case reported in 1975 are not applicable to the facts of the present case. As by the aforesaid discussions this court also held, that land which is situated in residential area, and was not being used for agricultural purposes would not be covered within the definition of land under the Ceiling Act. Learned senior counsel appearing on behalf of the respondents argues, on the other hand, that the definition of land under section 2(f) of the Act indicates that the land is used or capable of being used for agriculture or horticulture purpose and the definition of land 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. The Explanation-1 to the aforesaid definition defines ‘Homestead’ to mean a dwelling 3 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. In the facts of the present case, it has been argued that in a village the houses are used for all purposes and usually an agriculturist lives in the house and also uses it for the purpose of agriculture. According to the learned Senior Counsel for the respondents, the fact that a house is used for residential purpose, and equipment is stored in the house, which is used for agriculture work or having cattle shed, small store for keeping the grains would come within the meaning of land used for agriculture purposes. The object of Section 16(3) is to prevent fragmentation of agricultural land. In villages agricultural land is usually not situated adjacent to the residence/house of the farmer. Mostly it is at some distance from the house. It is submitted that all residential houses, be that of one room or two rooms are used by the villagers for the purposes for storing grains etc. In such circumstances, it is submitted that homestead lands which are used for dwelling purpose and also used for other purposes such as keeping the cattle etc. would come within the purview of Section 16(3). In fact, if this is so, it would virtually render all the houses in village to be homestead land, which is not the object of the present Act. Thus the facts and the pleadings of the parties have to be 4 examined in individual cases to determine the nature of the land. Learned counsel for the respondents referred certain decisions of this court and the Supreme Court. One is J.Singh & Another Vs. Jainandan Prasad Singh & Ors. Reported in 1970 BLJR 1010. In this case the pre-emptor was undoubtedly boundary Raiyat and the lands in question were in rural area. The court held that there is nothing in the act which distinguishes between homestead, residential and non-residential area. Therefore, such lands which are used for the purpose of agriculture specially in rural areas will be subject to the provision of Section 16(3) of the Act. The finding whether the lands are used for agricultural purposes or is a homestead land will depend on the facts of each case. In the present case there are no foundational facts or a report, which would help the pre-emptor. Thus the recitals of the sale deed, the fact that land is belagan, the area purchased is very small, the price of the lands in question and the surroundings of the vended land are some of the factors which have to be considered for purpose of determining whether the land is being used for agricultural purposes. In the present case the area is small as already indicated, the sale deed indicates that it was purchased for residential purpose, there was a small house on the land in question, the price of the land was high and it is situated near other residential houses in the village, as such this court finds that nature of land is not such which can be used for agricultural purposes. There is nothing on record to show that house in question was a homestead land. On examination of the sale deed, 5 it would appear that the vended land has been purchased with the intention of using it for residential purposes. This aspect is further supported by the fact there a house was already present on the lands in question. These facts are some of the important factors for the purpose of determining the nature of the land. In view of the facts aforesaid, this court holds that there is no evidence on record to show that the lands purchased by the petitioner are used for for agricultural purpose. This court finds that the order of the Additional Member, Board of Revenue, Bihar Patna dated 07-08-2002 cannot be sustained and is thus quashed. Writ petition is allowed for the reasons mentioned aforesaid. Sujit (Sheema Ali Khan,J)