IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8530 of 2004 HARI NARAYAN MAHTO, SON OF LATE JAGARNATH MAHTO, RESIDENT OF VILLAGE AWARI PARGANA GOA, P.S. MARHOWRAH, DISTRICT SARAN AT PRESENT RESIDENT OF VILLAGE BHUTTI SAHABUDDIN, P.S. BANIAPUR, DISTRICT SARAN. ---------------------------------------------------------------------------------------------------- PETITIONER Versus 1. THE STATE OF BIHAR 2. THE ADDITIONAL COLLECTOR, SARAN, CHAPRA. 3. THE DEPUTY COLLECTOR (LAND REFORMS), SARAN, CHAPRA 4. MOSMAT SARSWATI KUAR, WIFE OF BUDHAN MAHTO, RESIDENT OF VILLAGE RASULPUR PARAGANA GOA, P.S. AMNOUR, DISTRICT SARAN. 5. THE ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR, PATNA. 6(A) BASANT SINGH 6(B) RAJ KUMAR SINGH 6(C) RAJA RAM SINGH 6(D) YOGENDRA SINGH ALL ARE SONS OF LATE RAMJIT SINGH 6(E) ABHAY CHAND SINGH, SON OF LATE SUMITRA DEVI 6(F) RAJ KAMAL SINGH 6(G) AKHILESH SINGH 6(H) RENU DEVI ALL SONS AND DAUGHTERS OF LATE MOHAR DEVI 6(I) SANJAY SINGH, SON OF LATE SITA DEVI 6(J) DEO SAKHI DEVI, DAUGHTER OF LATE RANJIT SINGH 6(K) KAUSHILYA DEVI, DAUGHTER OF LATE RANJIT SINGH 6(L) CHAMPA DEVI, DAUGHTER OF LATE RANJIT SINGH ALL ARE RESIDENTS OF VILLAGE BHETHI SAHABUDDIN, P.S. BANIYAPUR, DISTRICT SARAN For the petitioner :- Mr. Shashi Shekhar Dwivedi, Sr. Advocate Mr. Ranjan Kumar Dubey, Advocate Mr. Sangeeta Sharma, Advocate For respondent no. 4 :- Mr. Manoj Kumar, Advocate ----------- 7 8.11.2010 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. Petitioner is aggrieved by the order of the D.C.L.R., Saran, Chapra, the Collector and the Member, Board of Revenue 2 by which the pre-emption application has been allowed and the appeal and revision filed on behalf of the vendor petitioner has been dismissed on the ground that the respondent no. 4 is a boundary raiyat of the lands in question and is entitled under Section 16(3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter referred to as ‘the Act’) to file a pre-emption application. The case of the petitioner is that he is landless person having total of 5 Kathas of lands and, therefore, application under Section 16(3) of the Act is not maintainable. The second point raised on behalf of the petitioner is that the land purchased by him measures 1 Katha, 8 Dhurs which has been purchased for the purposes of constructing his residential house which would be apparent from Annexure-1 which is the sale deed. At the first stage, the D.C.L.R. allowed the pre-emption application ex- parte. The Appellate Court remanded it back to the D.C.L.R. who again allowed it. 3 During hearing of the application, witnesses were examined in order to substantiate the claim of the petitioner that the land in question was residential in nature and that the petitioner was a landless person as defined under the Bihar Privileged Persons Homestead Tenancy Act. On perusal of the evidence of the witnesses, it appears that P.W. 1 has substantiated the claim that the petitioner has 5 to 6 Katha of lands. It is admitted that after the sale, the petitioner improved the condition of land and filled it with mud. The petitioner has thereafter constructed his Phus house. P.W. 2 Vishnu Mahto has stated that the land is adjacent to the village road. It is said that 20 to 25 persons have their houses in the vicinity of the land. The pre-emptor has also been examined. According to her evidence her brothers have a house in the village. She further claims that she has not acquired any land through her husband, in the same breath she says that she has stated that there are several houses at some distance from the vended land. One Ramesh Mahto has been 4 examined on behalf of the pre-emptor who claims that the land in question is meant for agriculture. In his cross-examination, he has stated that there are 4 or 5 houses at a distance of 40 to 50 hands from the disputed plot. It is stated that the land is adjacent to the road and on the North side the pre-emptor has her house. In the light of the evidence, the fact that has emerged is that the land in question is situated about 40 to 50 hands from other houses in the village, it is just adjacent to the road. The other fact which may be noted by this Court is that the land in question is a very small piece of land measuring 1 Katha and 8 Dhurs and such a small plot of land can hardly be used for agricultural purposes. It is also relevant that in the sale deed although the land was originally described as an agricultural land, it has been stated that the land is being purchased for residential purposes. This Court finds that the claim for pre-emption would not be maintainable if the land purchased has a small area which is incapable of being used for the purposes of 5 agriculture, the consideration amount of the land would also indicate the nature of the land. In the present case Rs. 25,000/- is a pretty high value for agricultural land, the price indicates that the land has been purchased for residential purposes. Apart from all these facts, the evidence of the pre-emptor is confusing to the effect that on one hand she has stated that she has not acquired any land from her husband’s side whereas, the house which she shows to be in the boundary of the vended land according to her, belongs to her brothers. On the basis of this contradictory piece of evidence, it is not possible for this Court to hold that in fact the pre-emptor can conclusively prove that she is in the boundary of the vended land. This Court also notices that the provisions of Section 16(3) of the Act would only be applicable to lands which are agricultural in nature, it follows as corollary that the pre-emptor should likewise have agricultural land in the boundary and not plot of land which contains a house. It is well settled by now that the provision of Section 16(3) 6 of the Act does not apply to lands used for residential purposes. It would be against the very object of the Act, which is to prevent fragmentation of the agricultural land, if a person files a pre-emption application claims that he is on the boundary of the vended land, as he or she, owns and lives in a house which is in the boundary of the vended land. In the present case, it is apparent from the evidence led before the D.C.L.R. that the pre-emptor has her residential house which is supposedly on the boundary of the disputed plot. The land which is subject matter of the sale deed is only 1 Katha, 8 Dhurs, which obviously cannot be fruitfully utilized for agricultural or horticultural purposes. Obviously, the position would have been different if a large chunk of land was the subject matter of the dispute. Counsel for respondent no. 4 on the other hand points out that the sale deed indicates that Saraswati Kuer is on the Western boundary of the vended lands and thereby actually accepts the fact that respondent no. 4 is a boundary raiyat. In 7 any event of the matter, this Court allows the claim of the petitioner on the ground that the evidence indicates that the lands in question are in the near vicinity of several other houses by the main road and have been purchased at a value which would indicate that the nature of land is residential and for the other reasons set forth in this judgment. Having regard to the aforesaid findings, this Court sets aside the orders of the D.C.L.R., Saran, Chapra, the Collector and the Member, Board of Revenue allowing the pre-emption application. This writ application is allowed. Sanjay/A.F.R. ( Sheema Ali Khan, J.)