IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10728 of 2010 RAM SAGAR RAI S/O JANAK RAI R/O VILL.- DADHIYA BELAR, P.S.- MUFFASIL (SAMASTIPUR), DISTT.- SAMASTIPUR ---- PETITIONER Versus 1. THE STATE OF BIHAR 2. THE ADDITIONAL MEMBER BOARD OF REVENUE, BIHAR, PATNA 3. THE ADDITIONAL COLLECTOR, SAMASTIPUR 4. DEPUTY COLLECTOR LAND REFORM, SAMASTIPUR 5. BHOLA RAI S/O LATE ANANDI RAI R/O VILL.- DADHIYA BELAR, P.S.- MUFFASIL (SAMASTIPUR), DISTT.- SAMASTIPUR For the petitioner : Mr. Satya Nand Shukla, Advocate. For the State : Mr. Sanjay Kumar, A.C. to S.C. no.24. For the respondent No.5 : Mr. Suraj Narayan Yadav, Advocate. ----------- 06. 06.12.2010 Heard the parties. Petitioner is aggrieved by the order dated 26.09.2008 passed by respondent no.2, the Additional Member Board of Revenue, Bihar, Patna in Board Rev. case no. 12 of 2002, whereby the revision preferred by the writ petitioner herein was considered and rejected. Aforesaid revision application was preferred aggrieved by order dated 23.08.2001, passed by respondent no.3, Additional Collector, Samastipur in Land Ceiling Appeal no. 182/96-97/12/99-2000, whereby the appeal preferred by respondent no.5 (pre-emptor) was allowed. Few relevant facts need notice. Petitioner purchased 10 decimals of land on 12.05.1989 from uncle of the respondent no.5, namely, Nooja Rai. The sale deed described the land as Kast Kayani. Respondent no.5 being the co-sharer of the land as 2 well as claiming himself adjoining raiyat thereof filed pre- emption application in the Court of respondent Deputy Collector, Land Reforms, which was considered and rejected by order dated 12.12.96 (Annexure-1 to the supplementary affidavit). Respondent Deputy Collector took the view that the land in question was purely homestead land. Having found so, the claim of pre-emption was denied. Aggrieved by the aforesaid order respondent no.5 preferred appeal which was considered and allowed by order dated 23.08.2001 (Annexure-2). The appellate Court, on a consideration of the materials on record, came to the conclusion that the records including the L.C. form submitted on behalf of the respondent indicated that the land in question were agricultural land. It has also been found that the appellant (respondentno.5 herein) was the co-sharer as well as adjoining raiyat of the land. Accordingly, the appeal was allowed. The revisional Court found that in the consolidation records the disputed land was found merged in one block ( chak) which was numbered 528. This indicated that the pre-emptor was the adjoining raiyat. Land records were also considered in order to come to a firm conclusion that the lands in question was agricultural land which has been declared as such in form L.C. 13. Having concluded so the revision application was rejected leading to filing of the present writ application. Learned counsel for the petitioner submits that appellate Court passed the order without affording him a hearing and as such the same was bad in law. It is next contended that the 3 petitioner had filed a suit questioning the order passed by respondent Additional Member Board of Revenue wherein a Pleader Commissioner was appointed who submitted the report wherefrom it would appear that the land had changed the nature and had become ‘bheeth’ and capable of construction of residence/home. Learned counsel appearing on behalf of the respondents, on the other hand, referred to the appellate order, in order to show that notices were duly issued and served on the petitioner whereafter he appeared but subsequently chose not to appear at the proceeding, and as such, the appellate Court had to consider the materials on record and pass the impugned order. It is next contended that the suit in such matter would be barred by the provision of the Act. Any observation/finding recorded therein shall not bind the authorities under the Act. It is next contended that the writ petitioner ultimately withdrew the suit. I have considered the submissions advanced on behalf of the parties. From the appellate order (Annexure-2), it appears that upon service of notice of the appeal, the writ petitioner had appeared on 15.05.1997 but thereafter left making pairvee w.e.f. 28.07.99. In that fact situation the appellate authority had to consider and dispose of the appeal. The order, therefore, cannot be said to be an ex-parte. The submission of the petitioner on this count is fit to be rejected. It is the stand of the writ petitioner that land in question changed its nature and use and had become homestead land. In a 4 proceeding under the Ceiling Act, the Court has to go by the records of right created in respect of the land in question. The khatiyan shows the land to be ‘Bheeth’ land. ‘Bheeth’ land would be definitely agricultural land. The sale deed in question which has been brought on record (Annexure X/1 to the counter affidavit of respondent no.5) depicts the land to be Kast Kayani. It appears from the revisional order that the land in question was allotted khata no. which prima facie indicates that the land continued to be ‘Bheeth’ land fit for agriculture. The provision of the Act also indicates that even a land which is homestead but belonging to a raiyat and is capable of being used in connection with agriculture will be a land in respect of which such proceeding shall be maintainable. Having regard to the findings recorded by the two authorities, this Court is satisfied that no case for issuance of prerogative writ has been made out. The application is dismissed. Sym ( Kishore K. Mandal, J.)