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2013 DIGILAW 1125 (PAT)

Pashupati Nath Tiwary v. State of Bihar

2013-09-16

BIRENDRA PRASAD VERMA

body2013
ORDER Heard the parties. 2. The petitioners are aggrieved by the order dated 22.11.2003 (Annexure-5) passed in Case No. 227 of 2000 by the respondent Additional Member, Board of Revenue, Bihar, Patna, whereby claim of pre-emption raised on behalf of the petitioners with respect to the lands purchased by the original respondent no. 5 from the respondent no. 6 and 7, has been dismissed, after reversing and setting aside the orders passed by the original authority as also the appellate authority. The original respondent no. 5 purchased 5 katha and 13 dhoor of land of khata no. 333, appertaining to plot no. 2811 for homestead purpose. The claims of pre-emption were raised on behalf of the petitioners on the ground of being adjacent raiyat, which was allowed by the original authority as also the appellate authority, but has been reversed and set aside by the revisional authority. In paragraph-10 of the counter affidavit filed on behalf of the respondent no. 5, it has been stated that he was a landless person and was having only 15 dhoor of lands apart from the lands purchased by him. The aforesaid facts have been reiterated once again in paragraph-18 of the counter affidavit. 3. Though a copy of the aforesaid counter affidavit was served on the learned counsel for the petitioners as far back as in the year 2005, but till date the facts stated therein have not been disputed on behalf of the petitioners. 4. Law has been settled by a Full Bench of our own High Court in the case of Fakir Mohammad Vs. Salahuddin and Others [AIR 1975 Patna 119] that homestead of the landholder is the land within the meaning of Section 2(f) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (in short “Land Ceiling Act”) , but homestead of a purchaser is not the land, for which pre-emption application can be filed and entertained. A Division Bench of this Court in the case of Nathuni Singh Yadav & Anr. Vs. The State of Bihar & Ors. [1997(2) PLJR 287] has held that an application of pre-emption under Section 16(3) of the Land Ceiling Act shall lie only when all the three parties, namely, transferor, transferee and the pre-emptor are the landholders. A Division Bench of this Court in the case of Nathuni Singh Yadav & Anr. Vs. The State of Bihar & Ors. [1997(2) PLJR 287] has held that an application of pre-emption under Section 16(3) of the Land Ceiling Act shall lie only when all the three parties, namely, transferor, transferee and the pre-emptor are the landholders. Placing reliance on the aforesaid judgments, recently this Court by a judgment dated 2nd August 2013 passed in CWJC No. 1374 of 1990 (Smt. Pyari Devi Vs. Additional Member, Board of Revenue, Bihar, Patna & Ors.) while considering the scope of Section 16 (3) of the Land Ceiling Act has come to a conclusion that if a landless or poor person purchases a plot of land for residential purposes, then the pre-emption application shall not be maintainable. Paragraph-13 of the aforesaid judgment would be relevant and is reproduced herein below:– “So far as the present case is concerned, admittedly, petitioner is not the landholder of any other land. She is admittedly a landless lady and has purchased the lands under dispute for construction of her residential house. The problem of a landless person for purchasing a plot of land for homestead can be examined from yet another angle. If a person is a landless person and has purchased a plot of land for homestead, then in that case the claim of pre-emption can always be raised by the boundary raiyats and in that case purchaser cannot resist the claim of pre-emption because he or she, being a landless person,will have no other land in the vicinity of the purchased land by him/her. In that situation, for the whole life no landless person can be permitted to purchase any plot of land for his homestead and in that case, he/she will have to remain shelterless for ever. This would put such a landless person in an unjust and inequitable position. I am sure, this could not have been the legislative intent of Section 16(3) of the Land Ceiling Act.” 5. For the reasons recorded above and in view of the law laid down by the Full Bench, as also by a Division Bench of our own High Court and further in view of recent judgment in the case of Smt. Pyari Devi Vs. Additional Member, Board of Revenue & Ors. For the reasons recorded above and in view of the law laid down by the Full Bench, as also by a Division Bench of our own High Court and further in view of recent judgment in the case of Smt. Pyari Devi Vs. Additional Member, Board of Revenue & Ors. (supra), this Court does not find any good ground to interfere with the impugned order dated 22.11.2003 (Annexure-5) passed in Case No. 227 of 2000 by the respondent Additional Member, Board of Revenue, Bihar, Patna. In the result, the application has to fail and is, accordingly, dismissed, but without costs.