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2015 DIGILAW 1021 (JHR)

Md. Jalil v. State of Jharkhand

2015-08-27

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 06.11.2006 in Revision Case No. 23 of 2005, the present writ petition has been filed. 2. The brief facts of the case are that, the father of the petitioner namely, Sahadat Mian acquired 12.75 acres land in Khata No. 5, Plot No. 443 through registered sale deed dated 29.05.1973. Subsequently, the father of the petitioner sold 10 decimals land in Plot No. 443 to his daughter namely, Juveda Khatoon through registered sale deed dated 06.08.1986. After the death of his father, the remaining 2.75 acres land in Plot No. 443 came in possession of the petitioner. The sister of the petitioner namely, Juveda Khatoon sold the aforesaid land to Baleshwari Devi on 31.01.2002. The petitioner filed preemption application under Section 16 (3) of the Bihar Land Reforms Act, 1961 and the said preemption case was allowed vide order dated 25.07.2002. The vendee-respondent no. 6 filed Land Ceiling Appeal No. 15 of 2002 which was allowed and order dated 25.07.2002 was set-aside. Aggrieved, the petitioner filed Revision Case No. 15 of 2003. The Revisional Authority set-aside the appellate order and remanded the matter to the Deputy Collector Land Reforms for a fresh consideration on the point whether the disputed land is agricultural land or not. The Preemption Case was reregistered as L.C. Case No. 01 of 200405. The Deputy Collector Land Reforms dismissed the preemption application vide order dated 15.09.2004 in L.C. Case No. 02 of 200203/01 of 200405. The said order was challenged in Appeal No. 22 of 2004 by the petitioner however, the appeal was dismissed on 31.05.2005 and the Revision Case No. 23 of 2005 filed by the petitioner before the Board of Revenue also stood dismissed on 06.11.2006. Aggrieved, the petitioner has approached this Court. 3. Heard the learned counsel for the parties. 4. The learned counsel for the petitioner submits that, vide order dated 20.12.2005 the Revisional Authority appointed Advocate Commissioner for verifying the nature of the disputed land. In the said order the Member, Board of Revenue has recorded that the claim of the Preemptors that they are adjacent Raiyats has not been challenged. The Advocate Commissioner submitted a report stating that the disputed land is a “Homestead Land” still, the revision petition has been dismissed on the ground that the suit land is not agricultural land. Referring to a decision in “Saikun Bibi Vs. The Advocate Commissioner submitted a report stating that the disputed land is a “Homestead Land” still, the revision petition has been dismissed on the ground that the suit land is not agricultural land. Referring to a decision in “Saikun Bibi Vs. State of Jharkhand” reported in 2005 (4) JLJR 3 , the learned counsel for the petitioner submits that, definition of land includes “Homestead Land” and merely because a dwelling house has been found constructed over the suit land, the suit land does not lose its character as agricultural land. 5. Per contra, the learned counsel for the respondent no. 5 submits that, once it is found that construction has been made over the suit land and it is not used for agriculture purpose, the application for preemption is liable to be rejected. It is further submitted that, the suit land is agricultural land or not was the issue before the Deputy Collector Land Reforms and he recorded a finding that the suit land is not agricultural land. The said fact has been affirmed by the Appellate Court as well as the Revisional Court and thus, the issue is concluded by concurrent findings of fact which cannot be reopened in the present proceeding. 6. I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record. 7. I find that the Member, Board of Revenue vide order dated 24.10.2003 quashed order dated 05.02.2003 in L.C. Appeal No. 15 of 2002 and allowed the Revision Petition in favour of the petitioner. After noticing the contentions of the petitioner that the vendee is neither co-sharer nor adjoining Raiyat and the fact that the sale deed recites that the suit land is “Chattan Tanr”, the Revisional Authority formed an opinion that the whole case hinges on the nature of the land. Accordingly, vide order dated 24.10.2003, the matter was remanded back to the Deputy Collector Land Reforms for fresh decision on the point whether the disputed land is agricultural in nature or not. After the remand, the Land Reforms Deputy Collector conducted inspection in presence of both the parties on 31.07.2004. It was found that long back house was constructed over the suit land. The Deputy Collector Land Reforms held that provision under Section 16 (3) of the Bihar Land Reforms Act, 1961 is not attracted. After the remand, the Land Reforms Deputy Collector conducted inspection in presence of both the parties on 31.07.2004. It was found that long back house was constructed over the suit land. The Deputy Collector Land Reforms held that provision under Section 16 (3) of the Bihar Land Reforms Act, 1961 is not attracted. The petitioner approached this Court in W.P.(C) No. 5947 of 2004 however, the same was dismissed permitting the petitioner to prefer appeal. The Appellate Authority upon noticing that in spot inspection an Old House and a Well were found constructed and the suit land is “Tanr Land”, dismissed the appeal vide order dated 31.05.2005. The Revisional Authority has noticed that the Advocate Commissioner also reported construction of a Puckka House over the suit land. The Revisional Authority held that the suit land is not agricultural land and thus, it is not Raiyati land. Contending that provision under Section 16 (3) of Bihar Land Reforms Act,1961 is applicable only to Raiyati lands, the learned counsel for the respondent no. 5 has referred to order passed in “Shyampado Gorain Vs. State of Bihar” reported in 2004 (3) JCR 256 (Jhr) : 2005 (3) JLJR 543 . In the said case, this Court held that even if the land is recorded as agricultural but it was purchased for making construction and in fact, construction is made, application for preemption is liable to be rejected. In “Kamlakant Goswami Vs. Balgobind Sah & Ors.” reported in 1971 B.L.J.R. 974, the Court held that the main aim of the Legislature in passing the Act was to facilitate the personal cultivation of the land by certain class of raiyats. The definition of raiyat in the Act clearly shows that it refers to persons who have acquired land for the purpose of cultivation. The definition of “land” itself indicates that it must be a land which is either used or is capable of being used for agricultural or horticultural purposes. The Court has held that the land even if it is homestead, it must be homestead of a landholder that is, of a raiyat engaged in agriculture and if the land is not homestead of a landholder, it will not be a land under the Act and hence, provision of Section 16(3) of the Bihar Land Reforms Act (fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, would not be applicable to it. The learned counsel for the petitioner has relied on decision in “Saikun Bibi Vs. State of Jharkhand” reported in 2005 (4) JLJR 3 to contend that merely because it has been found that the land in question is a homestead land, the claim of the petitioner cannot be rejected. In “Saikun Bibi” case, the Appellate Authority as well as Member, Board of Revenue both found the preemptors “landholders” as defined under Section 2(g) of the Act. In the said case, it has not been held that even if the land is not used for agriculture purpose, the preemption application filed with respect to such land can be maintained. As noticed above, in the present case, all three Courts have concurrently held that the land in question is not agricultural land. In “Kumar Gonsusab Vs. Mohd. Miyan” reported in (2008) 10 SCC 153 , the Hon'ble Supreme Court has observed as under; 20. “That apart, it is now well settled that the right of preemption is a weak right and is not looked upon with favour by courts and therefore the courts cannot go out of their way to help the preemptor.” 8. Considering the above facts, I find no merit in the writ petition and accordingly, it is dismissed. 9. I. A. No. 1044 of 2009 and I.A. No. 1672 of 2015 stand disposed of.