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2007 DIGILAW 949 (PAT)

Triveni Singh v. State Of Bihar

2007-05-15

J.N.BHATT

body2007
Judgment 1. This writ petition under Articles 226 and 227 of the Constitution of India is directed against the order, dated 6.5.1988, (Annexure-1), passed in Revision Case No. 15 of 1986, by the Additional Member, Board of Revenue, under Sec. 32 of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 ("Act of 1961"), whereby, the order, dated 9.12.1985 (Annexure-3), passed in Appeal No. 59 of 1985-86, came to be reversed restoring the order, dated 19.7.1985 (Annexure-2), passed by the Deputy Collector, Land Reforms, Jamui, in Case No. 3 of 1985-86. 2. Some material and relevant facts may be highlighted, at this stage, with a view to appreciating the merits and challenge against the impugned orders. 3. The petitioner purchased 28 decimals of land out of plot no. 2279, by registered sale deed, dated 19.3.1985, from respondent nos. 6 and 7 for a consideration of Rs. 40,000/-. The respondent no. 5. Vidya Singh, claiming to be ajoining raiyat had filed a petition under Sec. 16 (3) of the Act of 1961 before the Land Reforms Deputy Collector (Respondent no. 4) and it was registered as L.C. Case No. 3 of 1985-86. The Respondent no. 4, upon consideration of the facts and circumstances in the case of objections of the petitioner, allowed the petition for pre-emption, in terms of the provision of Sub-section (3) of Sec. 16 of the Act of 1961. This decision was rendered on 19.7.1985. 4. The aforesaid order was challenged in appeal before the Additional Collector, Munger (Respondent no. 3), who upon consideration of the facts and circumstances and hearing the parties, found, on facts the case in favour of the petitioner and, by order dated 9.12.1985, quashed the order of the Land Reforms Deputy Collector, rejecting the application for pre-emption under Sec. 16(3) of the Act of 1961. 5. Being aggrieved by the said order of the appellate authority, the original respondent no. 5 preferred a revision under Section 32 of the Act of 1961, before the Additional Member, Board of Revenue, in Board Revision Case No. 15 of 1986 questioning the legality and validity of the order of the appellate authority, who by order, dated 6.5.1988, allowed the revision, reversing the order of the appellate authority and restoring the order of the Land Reforms Deputy Collector. Hence, this writ petition under Articles 226 and 227 of the Constitution of India against the impugned order of the Additional Member, Board of Revenue, under Sec. 32 of the Act of 1961. 6. Upon consideration of the facts and circumstances, as well as, text and tenor of the impugned orders of the three revenue authorities, as well as, relevant proposition of law, this Court has no hesitation in finding that the revisional court ought not to have reversed the finding of fact recorded by the appellate Court without assigning clear and cogent reasons. The finding of fact once recorded by the Court of appeal can, only, be disturbed and interfered with by the revisional Court provided there is inherent lacuna in the procedure or palpable wrong on the face of the record or there is manifest injustice resulting therefrom or it is perverse, as no prudent man would reach to such a conclusion. So is not the fact-scenario in the present case. 7. This Court in CWJC No. 6549 of 1988 (Md. Alam Vs. Addl. Member, Board of Revenue & Ors), disposed of on 15.2.2007 (quorum : Dr. J.N. Bhatt, CJ.) has held that the revisional court should not interfere with the finding of fact of the appellate court unless some grave mistake of fact is apparent on record. This decision fully attracts the facts of the present case. 8. After having examined and evaluated the evidence on record, this Court is of the opinion that there is material to show that since more than 25 years, the land in question is in use and occupation of the petitioner as homestead and once "homestead land" is established, no pre-emption can be claimed as "Doctrine of Pre-emption" does not apply to homestead lands. The Act of 1961 is designed to provide for fixation of ceiling, restriction on sub-letting and resumption by certain raiyats, for personal cultivation of land, acquisition of status of raiyat by certain under raiyats and acquisition of surplus land by the State in the State of Bihar and matters connected therewith. 9. Undoubedly, this Act is a piece of social legislation for agrarian reforms. 9. Undoubedly, this Act is a piece of social legislation for agrarian reforms. The underlying design of the Act is manifest and is to break-up the concentration of ownership and control of material resources of the community and to distribute the same as best to subserve the common good as enjoined under Article 39 (b) of the Constitution of India. The Act of 1961 has made commendable efforts to make available to members of economically backward classes and persons living below the poverty line, the minimum means of subsistence and to ameliorate the poverty of the landless peasantry. This Act is divided into XIII Chapters and there are about 59 Sections with a Schedule and Amending Acts, as well as, Ordinances. Rules are also framed therein known as "Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surlpus Land) Rules, 1963". In definitional Sec. 2, "Land" is defined which is very important. Therefore, it would be interesting to refer to the provisions of Section 2 (f) of the Act of 1961 which reads hereunder :- "2. Definitions.-\n this Act, unless there is any thing repugnant in the subject or context :- x x x x x x (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 also the land perennially submerged under water or the homestead of a land-holder. Explanation I.-"Homestead" means 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 or horticulture and any tank, library and place of worship appertaining to such dwelling house. Explanation II.-Land perennially submerged under water shall not include submerged in the bed of a river." 10. It is, very clear from Explanation I, that homestead means 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 or horticulture and any tank, library and place of worship appertaining to such dwelling house. 11. There is no dispute about the fact that once the homestead land is proved, there will not apply the claim for preemption. 11. There is no dispute about the fact that once the homestead land is proved, there will not apply the claim for preemption. In the case of Syed Fakir Mohammad Vs. Sheikh Salahuddin & ors. 1975 PLJR 1 (FB), the Full Bench of this Court has clearly held that the Act of 1961 and particularly Sections 2(f), 2(g), and 16(3) are interpreted to the effect that the homestead of a landholder will not attract the "doctrine of pre-emption". In the case of Mukhi Mali Vs. The State of Bihar & Ors 1979 BBCJ 151 , the Division Bench of this Court has, clearly, expounded that transferor is not a landholder, therefore, principles of pre-emption would not apply. Similarly, in the case of Nathuni Singh Yadav & Anr. Vs. The State of Bihar & Ors. 1997(1) PLJR 848, the Division Bench of this Court has held that the landless person cannot be denied of his right to become landowner just because of pre-emption. There is yet another important judgment rendered in the case of Urmila Devi Vs. State of Bihar & Ors 1998 (1) PLJR 758, wherein, it has been held that when the land in question is not agriculture land and is held for residential proposes, as stated in the registered sale deed, the provisions of Sec. 16(3) relating to pre-emption will not be applicable. 12. After having considered the overall facts and circumstances, the catalogue of events, the registered sale deed and other documentary evidence and the impugned orders, this Court has no hesitation in finding that the impugned order of the Additional Member, Board of Revenue in Revision Case No. 15 of 1986 dated 6.5.1988 (Annexure-1) is illegal and not supportable. Therefore, it shall stand reversed restoring the position arising out of the order of the appellate authority, i.e. the Additional Collector dated 9.12.1985 (Annexure-3) in Appeal No. 59 of 1985-86 3). In other words, the appellate order is restored, reversing the order of the Land Reforms, Deputy Collector and setting aside the order of the Additional Member, Board of Revenue. Accordingly, this application shall stand allowed. No costs.