Research › Search › Judgment

Jharkhand High Court · body

2005 DIGILAW 609 (JHR)

Saikun Bibi v. State Of Jharkhand

2005-08-10

ALTAMAS KABIR, R.K.MERATHIA

body2005
JUDGMENT Altamas Kabir, C.J. and R.K. Merathia, J. 1. This appeal is directed against the judgment and order of the learned Single Judge dated 13th May, 2005, dismissing the appellants writ application being W.P. (C) No. 2233 of 2005, rejecting the appellants challenge, to the order passed in favour of the respondents under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land), Act, 1961 (hereinafter to be referred to as "the aforesaid Act"). 2. There is no dispute that the plot involved in Survey Plot No. 1665 appertaining to Khata No. 41 Measuring 60 decimals situated at Village jhopra in the district of Bokaro and that the same was previously recorded in the name of Shri Ram Pati Das (Sarkar) and Shankar Das. It is also not disputed that Ram Pati Das sold 30 decimals of land located in the plot to respondents No. 2 and 3 (respondents No. 4 and 5 herein) by a registered sale deed dated 5th February, 1988 and that, subsequently, Ram Pati Das and Shankar Das sold the remaining 30 decimals of the same plot to the appellant by a registered sale deed dated 4th February, 2003. The respondents No. 4 and 5 thereupon filed an application for pre-emption of the second sale under the provisions of Section 16 (3) of the aforesaid Act. The application for pre-emption was considered by the Land Reforms Deputy Collector (hereinafter referred to as "the L.R.D.C.") who, after spot verification, dismissed the claim of the respondents for pre-emption in L.C. Case No. 8 of 2003. The L.R.D.C. was of the view that the land in question is a homestead land surrounded by houses and roads and that the land was lying fallow and was not being used for the purpose of agriculture. 3. An appeal against the order of the L.R.D.C. was filed by respondents No. 4 and 5 herein under Section 30 of the aforesaid Act. The said appeal being L.C. Appeal No. 3 of 2003 was allowed by the Additional Collector on his finding that merely because the land was lying fallow would not take the said land out of the definition of land under Section 2(f) of the aforesaid Act. The said appeal being L.C. Appeal No. 3 of 2003 was allowed by the Additional Collector on his finding that merely because the land was lying fallow would not take the said land out of the definition of land under Section 2(f) of the aforesaid Act. The Additional Collector also came to a finding that the land was neither within the Municipal Area nor within the Notified Area, but was within a village and it could not be said that merely because the land was not being used for growing crops, it was not used of the purpose of agriculture as indicated in the definition of land under Section 2{f) of the aforesaid Act. 4. Aggrieved by the decision of the Additional Collector, Bokaro, the appellant herein preferred a revision before the Board of Revenue under Section 32 of the aforesaid Act and the same was registered as Bokaro L.C. Revision No. 47 of 2003. The Member Board of Revenue endorsed the view taken by the Additional Collector upon considering that there was no dispute that the pre- emptees were adjacent raiyat to the disputed plot and that the same is recorded as Bastu Bari in the record of rights. Observing that on spot inspection, the L.R.D.C. had found that the land was used to grow Maize but was no lying fallow, the Member Board of Revenue was of the view that the L.R.D.C. had erred in holding that the land was used particularly for homestead purposes and would not fall within the provisions of Section 16(3) of the aforesaid Act. 5. Going by the definition of Bastu Bari, which is generally used for storage of agricultural implements or for temporary shelter for farm labourers, the Member Board of Revenue dismissed the revision petition filed on behalf of the appellant. It is the said decision of the Member Board of Revenue dated 4th March, 2005, which was the subject matter of challenge before the learned Single Judge in the writ petition, which was dismissed on 13th May, 2005 mainly on the ground that there was no dispute that the respondents are adjacent raiyats and the land was recorded as Bastu land, meaning thereby the land was used for agricultural purposes. 6. 6. In support of the appeal, it was urged that both the Appellate Authority as also the Revisional Authority misconstrued the meaning of the definition of land under Section 2(f) of the 1961 Act as had been explained in the various decisions of the Patna High Court as also the Honble Supreme Court. It was urged the first of all they had to come to a finding that the parties seeking to pre-empt were "land-holders" within the meaning of Sections 2 (g) and 2 (k) of the 1961 Act and that the homestead land was being used for the purposes connected with agriculture. It was sought to be urged that the L.R.D.C. had come to a definite finding that land was not being used for agricultural purposes and did not, therefore, attract the definition of land for the purposes of Section 16 (3) of the 1961 Act. 7. It was also sought to be urged that even if the land was capable of being claimed by a pre-emptor, such an application would not lie against a person who was landless, as had been held by the Division Bench of the Patna High Court in the case of Nathuni Singh Yadav and Anr. v. The State of Bihar and Ors., 1997 (2) PLJR 287. It was also urged that, inasmuch as, there was a definite finding of the L.R.D.C. regarding use of the land for agricultural purposes, the application for pre-emption filed on behalf of respondents No. 4 and 5 was not maintainable. 8. On behalf of the State-respondents No. 1 to 3, it was urged that the findings of the L.R.D.C. had been considered both at the appellate and the revisional stage and the concurrent findings of both the appellate and the revisional authorities was that the land was capable of being used for agricultural purposes within the meaning of the definition of land as defined in Section 2 (f) of the 1961 Act. For the purpose of reference, the definition of land, as defined in Section 2(f) of 1961 Act is set out hereinbelow : "2(f) "land" means land which is used or capable of being used for agriculture or horticulture and includes land which is an orchard, kharhur or pasturage or forest land or even land perennially submerged under water or the home-stead of a land-holder." 9. It will be seen that such definition of the land also includes homestead of a land-holder. There is no dispute with regard to the findings of both the Additional Collector and the Member Board of Revenue that respondents No. 4 and 5 herein, were land-holders, as defined under Section 2 (g) of the aforesaid Act. Explanation-I of Section 2 (f) indicates that "Homestead" also includes a dwelling 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. In fact, the member Board of Revenue has relied on such definition in deciding the revision application filed on behalf of the appellant herein. 10. As far as the decision of the Division Bench referred on behalf of the appellant is concerned, we can only observe that the same was based on an equitable consideration, whereas the law is specific as to who could apply for pre-emption and in what circumstances. In such circumstances, we see in reason to interfere with the order passed by the learned Single Judge. 11. The appeal is accordingly, dismissed. There will be no order as to costs.