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2007 DIGILAW 1859 (PAT)

Most. Savitri Devi v. State

2007-12-05

AJAY KUMAR TRIPATHI

body2007
Judgment Ajay Kumar Tripathi, J. 1. Heard counsel for the petitioners and learned counsel for the State. 2. Petitioners are aggrieved by the order dated 20.11.1985 contained in Annexure-5 passed by the appellate authority as well as Annexure-6 dated 27.7.1989, which is revisional order passed by the Member, Board of Revenue in a proceeding under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. (for short the Act) . The land in question which is the subject matter of dispute is contained in Khata No. 111, Khesra No 196 and the area is 2 kathas 1 dhur only. As per narration of the petitioners on 5th June, 1979 respondent no. 5 filed application for pre-emption in the Court of Deputy Collector Land Reforms stating therein that Plot No. 196, Khata No. 111 of Mouza Sandalpur, P.S. Moffasil area 2 katha 1 dhur out of total area 7 katha 7 dhurs was sold by Shiva Charan to Muneshwar Prasad Yadav, the husband of petitioner no. 1 by Kewala dated 5.5.1979. In the northern boundary of the said plot the admitted land of the pre-emptor has been purchased from another co-sharer of Shiv Charan. The purchaser has no land in the adjoining. Further the nature of the land is a Bhith Land. 3. The case of respondent no. 5 on the other hand is that Plot No. 196 having an area of 23 acres i.e. 7 kathas 7 dhurs belonged to one Mangroo, Shiv Charan, respondent no. 6, and Gudri. There was mutual partition between three, Mangroo got 2 kathas 10 dhurs, and Shiv Charan got 2 Kathas 5 dhurs. On 2.3.1970 respondent no. 5 purchased 2 kathas 5 dhurs of Plot No. 196 from the heirs of Mangroo, namely, Dhaneshwar Yadav. The recital in the sale deed dated 2.3.1970 described the land as "Basobas" (Homestead). 4. The case of the petitioners is that Late Muneshwar Yadav, the husband of petitioner no. 1 and father of petitioners no. 2 to 9 owned and possessed Plot No. 193, which is adjoining south of Plot No.196. Late Muneshwar Yadav with an intention to build a residential house by a registered sale deed dated 5.5.1979 purchased 2 kathas 1 dhur of land from Plot No. 196. This plot belonged to the share of Shiv Charan. The purchase was for a valuable consideration of Rs. 4,000/-. Late Muneshwar Yadav with an intention to build a residential house by a registered sale deed dated 5.5.1979 purchased 2 kathas 1 dhur of land from Plot No. 196. This plot belonged to the share of Shiv Charan. The purchase was for a valuable consideration of Rs. 4,000/-. The sale deed described the nature of land as "Basobas" and in the boundary it is stated that in the south of the disputed plot the land of Niz Man Mokir (self) had been recorded. When a right of pre-emption was claimed by the respondents, Muneshwar Yadav who later on passed away appeared before the Deputy Collector Land Reforms, Munger and filed his show cause. In the first round the Deputy Collector Land Reforms rejected the claim of pre-emption by holding that the land in question was a Basobas and not fit for agriculture purpose. The matter travelled in appeal and the learned Additional Collector remanded the matter back for reconsideration. The case was taken up afresh and on reconsideration vide order dated 21.7.1981 contained in Annexure-4, the Deputy Collector Land Reforms categorically recorded two things that the pre-emptor was not an adjoining raiyati and the land in question was not an agricultural land. The claim for pre-emption under Section 16(3) of the Act was again rejected. The matter travelled in appeal and the appellate court of Additional Collector-cum-Additional District Magistrate set aside the order of Deputy Collector Land Reforms contained in Annexure-4 by giving his own reasons. The appellate Court basically relies on two evidences to hold against the petitioners. He has relied upon a report of the Pleader Commissioner, who was appointed to inspect the land in question as well as on an earlier report of his predecessor who had supposedly visited the land in question in person and recorded his opinion. The appellate authority had been more impressed by the fact that the Pleader Commissioner found some Urad growing on the piece of land and that according to him shows that the land in question was an agricultural land and not a homestead land. There are other findings also with regard to the fact that whether the land in question touches the boundary of the pre-emptor or not. Petitioner carried the litigation in revision before the Board of Revenue. The revisional order is dated 27.7.1989 and is contained in Annexure-6. There are other findings also with regard to the fact that whether the land in question touches the boundary of the pre-emptor or not. Petitioner carried the litigation in revision before the Board of Revenue. The revisional order is dated 27.7.1989 and is contained in Annexure-6. The reasonings given both by the appellate authority as well as the revisional authority are not different. In fact the revisional authority has relied totally on the reasons which had been given by the appellate authority. 5. Learned counsel for the petitioners, however, submits that both the impugned orders contained in Annexure-5 and Annexure-6 are erroneous and illegal. In this regard he relies on two decisions of this High Court in the case of Md. Yasin V/s. Abdul Rauf, 1967 0 BLJR 49. A special emphasis is placed on paragraphs 5 and 6 of this decision. The other decision he relies on in the case of K. Goswami V/s. B. Sah, 1971 0 BLJR 974. Both the decisions have been cited for the authority that the nature of the land, the location and the description of the land in the sale deed has its own bearing. The size of the plot also has relevance to the issue whether the land in question is an agricultural land or not. According to the petitioner the facts of the present case are quite similar to the issues which have been decided in the abovementioned decisions. There is no dispute about the fact that the land measures 2 kathas 1 dhur only. There are large number of houses constructed in and around the plot concerned. Even the sale deed which was executed categorically explains the nature of the land to be Basobas. Merely because the Pleader Commissioner found some Urad growing on the land does not mean that the nature of land should be treated to be that an agricultural land. There are situations where people indulge in growing a few crop here and there on a vacant piece of land before the construction starts on the said land. Merely because at the relevant time some Urad was found to be growing on the said land the nature of land cannot be termed to be one as defined under Section 2(f) of the Act. 6. The submission and the contention of the learned counsel for the petitioners seems to be correct. Merely because at the relevant time some Urad was found to be growing on the said land the nature of land cannot be termed to be one as defined under Section 2(f) of the Act. 6. The submission and the contention of the learned counsel for the petitioners seems to be correct. The reasonings given by the appellate authority as well as the revisional authority seems to be a laboured decision. They have ignored the basic evidences which were available before them and have gone on a tangent to decide the issue. The basic question which is vital for the present case and its adjudication is that if the land in question was a homestead land then question of allowing pre-emption application under Section 16(3) of the Act was a misplaced exercise. Even otherwise this is well known that the right of pre-emption is a weak right and in the given facts and circumstances this Court is not inclined to uphold the impugned orders contained in Annexures-5 and 6 granting right of pre-emption to the respondents. 7. The writ application is allowed. The impugned orders contained in Annexures-5 and 6 are hereby set aside.