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2007 DIGILAW 1015 (PAT)

Syed Jamal Ashraf v. State Of Bihar

2007-05-30

AFTAB ALAM

body2007
Judgment AFTAB ALAM, J. 1. This writ petition arises from a pre-emption proceeding under sec. 16(3) of the Bihar Land Ceiling Act. The petitioner is the purchaser and he lost before all the three authorities under the Act. 2. On 24.9.1981 the petitioner purchased from one Bibi Alima Khatoon (since deceased) two properties situate in two different villages, namely, village Ashraf Chak and village Rampur under P.S. Bakhtiyarpur in the district of Saharsa. Respondent No. 5 Syed Mashir Ashraf who happens to be the second cousin of the petitioner, having a common ancestor, raised the claim of pre-emption with regard to the properties transferred in the petitioners favour on the ground that he was the adjoining raiyat of the lands conveyed by the sale deed. The respondents application under sec. 16(3) of the Act was registered before the D.C.L.R., Saharsa as Case No. 582/18/84/5/85-86. The petitioner resisted the claim of pre-emption, inter alia, on the plea that the properties covered by the sale deed were not land within the meaning of Sec. 2(f) of the Land Ceiling Act and were, therefore, not amenable to any claim of pre-emption. The D.C.L.R. called for a report from the Circle Officer, Simri Bakhtiyarpur with regard to the nature of the properties. He submitted his report, dated 4.8.1985 (a copy of which is at Annexure 3). The D.C.L.R. after hearing the parties and on a consideration of the materials on record, including the report of the Circle Officer, allowed the claim by order, dated 9.5.1986 (copy at Annexure-5). 3. The petitioner took the matter in appeal before the Addi. Collector, Land Ceiling, Saharsa in Case No. 10/35/1986- 87 but the Addl. Collector dismissed the appeal and affirmed the order of the D.C.L.R. by his order, dated 12.9.1986 (copy at Annexure-6). 4. The petitioner then moved the Board of Revenue in Revision Case No. 599 of 1986. The revision was dismissed by resolution, dated 17.5.1989 passed by Shri A. Wati Ao, Addl. Member, Board of Revenue (copy at Annexure 1). The order of Shri Wati Ao, as was his wont, is quite perfunctory and from that order one fails even to gather as to the respective cases of the parties. 5. Against the orders passed by the authorities under the Act, the petitioner has come to this court. 6. Mr. Member, Board of Revenue (copy at Annexure 1). The order of Shri Wati Ao, as was his wont, is quite perfunctory and from that order one fails even to gather as to the respective cases of the parties. 5. Against the orders passed by the authorities under the Act, the petitioner has come to this court. 6. Mr. Nasar Warsi, learned counsel for the petitioner mainly raised the same objection that was raised before the D.C.L.R. Mr. Warsi submitted that the properties conveyed by the sale deed executed by Bibi Alima Khatoon did not fall within the definition of land and hence, the claim of pre-emption in regard to those properties was not sustainable. For a description of the conveyed properties, forming the subject matter of dispute, he referred to the sale deed and submitted that one of them was plainly a homestead and the other was a 5 deep ditch situate in the centre of the village. In the sale deed the first property is described as follows: "Mawazi 2 katha 15 dhur Arazi Belagan Dih Maskan Mai Makan Eent Khapraposh Barukh Purab Mai Sahan Agaura Wa Pichuara Mai Darakhtaan Andar Shai Mowaiya Haza Az Hissa Khas Wake Mauza Ashraf Chak, Pargana Parkiya, Thana Bakhtiyarpur, Sub-Registry Sub-Division Wa Zila Saharsa, Andar Zamindari Bihar Sarkar, Anchal Karyalaya Bakhtiyarpur." The second property is described in the sale deed in the following term: "Mawazi 2 katha 11 dhur Arazi Kaimi Az Hissa Khas, Wake Mauza Rampura, Pargana Parakiya, Thana Bakhtiyarpur, Sub-Registry Sadar Wa Zila Saharsa Andar Zamindari Bihar Sarkar, Anchal Bakhtiyarpur." 7. Mr. Warsi further submitted that in the Circle Officers report the second property situate at village Rampura was described as follows: "This piece of land was from before a ditch about 5 deep in which the sewer and the drain water of the neighbouring houses was collected. By filling up it can be used any time for dwelling (Baso Bass) purpose. This piece of land was at the centre of the village. It was close to the dwelling house of the applicant (the pre-emptor respondent no. 5) and the dwelling house of the opp. party (the purchaser petitioner) was adjacent south to it." 8. Mr. By filling up it can be used any time for dwelling (Baso Bass) purpose. This piece of land was at the centre of the village. It was close to the dwelling house of the applicant (the pre-emptor respondent no. 5) and the dwelling house of the opp. party (the purchaser petitioner) was adjacent south to it." 8. Mr. Warsi submitted that the sale deed and the report of the Circle Officer left no room for doubt that both pieces of land, being the subject matter of dispute, were not agricultural in nature and as a matter of fact were not capable of being used for any agriculture purpose. The first property was a dwelling unit of an old widowed woman and the other was a ditch at the centre of the village which could only be used by filling up for dwelling purpose. Learned counsel further submitted that the D.C.L.R. completely misread the report of the Circle Officer and referring to the report the D.C.L.R. in his order stated something that was totally contrary to the report. Learned counsel pointed out that at page 10 of the order the D.C.L.R. observed that the piece of land (the second property under the sale deed) was situate next to the house of the applicant and it was at some distance from the house of the opp. party. The observation of the D.C.L.R. was just opposite of what the report of the Circle Officer actually said. 9. Mr. Warsi submitted that from the description of the properties in the sale deed and from the report of the Circle Officer it was clear beyond doubt that the two pieces of land had no connection of any kind with any agriculture work. In this regard he also referred to the certificate, dated 15.2.1982 granted by the Mukhiya of Bakhtiyarpur Gram Panchayat (Annexure- 3/A). In the certificate it is stated that the house of Most. Bibi Alima Khatoon was a dwelling unit. Bibi Alima Khatoon did not do any cultivation and her house was never used for any kind of cultivation work. 10. Mr. Warsi submitted that in light of the aforesaid materials the inescapable conclusion was that the two pieces of land were dwelling units and belonged to a person who was not a raiyat within the meaning of the Act. Bibi Alima Khatoon did not do any cultivation and her house was never used for any kind of cultivation work. 10. Mr. Warsi submitted that in light of the aforesaid materials the inescapable conclusion was that the two pieces of land were dwelling units and belonged to a person who was not a raiyat within the meaning of the Act. Under the circumstance the two properties were not covered by the definition of land and were not amenable to pre-emption. In support of the submission he relied upon a Bench decision of this court in Md. Yusuf Vs. The Member, Board of Revenue and Others, 1973 P.L.J.R. 44 and another decision by the Full Bench of the Court in Fakir Mohammad Vs. Salahuddin and Others, AIR 1975 Pat. 119 . In Md. Yusuf the court held and observed as follows: "It would thus be seen that the definition of "land" given in Clause (f) includes the homestead but not all kinds of homestead; it includes the homestead of a landholder only. The landholder must be a person who holds land as a raiyat or as an under raiyat. He cannot hold a land as a raiyat or as an under raiyat unless the homestead held by him is held for agricultural purposes. The terms raiyat and under raiyat are well defined terms understood under the Tenancy Law. A tenant under the Transfer of Property Act can never be a raiyat or an under raiyat as the said terms mean. It has not been shown by the petitioner nor is it his claim even in this writ application that plot 934 was a homestead piece of land of which respondents 6 and 7 were raiyat or under raiyat before their transfer or respondent 5 was a raiyat or an under raiyat after the transfer. Nor, could he show and claim that he was a raiyat or an under raiyat of plot 996 within the meaning of the definitions given in Clauses (f) and (g) of Sec. 2 of the Act. 6. Nor, could he show and claim that he was a raiyat or an under raiyat of plot 996 within the meaning of the definitions given in Clauses (f) and (g) of Sec. 2 of the Act. 6. Sec. 16(3) of the Act reads as follows: "(3) (1) When any transfer of land is made after the commencement of this Act to any person other than a co- sharer or a raiyat of adjoining land, any sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document of transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed." The provision of law, quoted above can be pressed into service only if the land transferred is the land defined in the Act otherwise not. I have stated above that the land transferred was not, nor is, the homestead land of any landholder. That being so, no preemption can be claimed in respect of such a land. It is also important to note that when the petitioner claimed to be a raiyat holding land adjoining the land transferred, it was incumbent upon him to establish that he was a raiyat of plot 996 being a homestead piece of land for agricultural operations. Neither such a claim was made nor was any evidence adduced. On the face of the nature of the land transferred and the nature of the land held by the petitioner, it is clear that they were not the raiyati lands of either kind. The view expressed above seems to be directly covered by a Bench decision of this Court in (1) Kamlakant Goswami Vs. Balgobind Sah (1971 B.L.J.R. 974)." 11 In reply Mr. Tara Kant Jha submitted that there were concurrent findings of three courts that the pre-emptor was an adjoining raiyat and the two pieces of land, being the subject matter of dispute, were capable of being used for agriculture purpose. He also submitted that the D.C.L.R. had held that Bibi Alima Khatoon was a landholder. 12. I am unable to accept the submission of Mr. Jha. He also submitted that the D.C.L.R. had held that Bibi Alima Khatoon was a landholder. 12. I am unable to accept the submission of Mr. Jha. The respondents can- not derive any benefit by relying upon the findings of the authorities under the Act for the simple reason that those findings are themselves assailed by the petitioner, as being based on no materials and as a matter of fact being contrary to the materials on record. Therefore, the real task is to defend those findings. 13. On hearing counsel for the parties and on going through the impugned orders and the materials on record, I am clearly of the opinion that the findings recorded by the D.C.L.R. and affirmed without much application of mind by the Addl. Collector and the Board of Revenue are quite inde- fensible. The submissions made on behalf of the petitioner are well founded and are fully supported by the Full Bench decision of the court in Fakir Mohammad (supra). 14. I accordingly find and hold that the orders passed by the D.C.L.R., the Addl. Collector and the Member, Board of Revenue are unsustainable. Those orders are set aside and the claim of pre-emption raised by respondent no. 5 is rejected. 15. In the result, this writ petition is allowed but with no order as to costs.