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2018 DIGILAW 753 (PAT)

Ramesh Kumar Singh v. State of Bihar

2018-05-02

AJAY KUMAR TRIPATHI, NILU AGRAWAL

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JUDGMENT : Nilu Agrawal, J. Appellants have preferred the two intra-court appeals aggrieved by the order dated 18.11.2016, passed by the learned Single Judge in C.W.J.C. No. 3639 of 2004 heard analogous to C.W.J.C. No. 3734 of 2004 whereby the learned Single Judge by a common order has dismissed the writ application preferred by these appellants. 2. The appellants had moved the learned Single Judge for setting aside the order dated 10.01.2004, passed by the Additional Member, Board of Revenue, Bihar, Patna wherein the Additional Member, Board of Revenue had set aside the order of the Additional Collector, passed in Ceiling Appeal No. 10 and 11 of 1998 and upheld the order passed by the Deputy Collector Land Reforms in Land Ceiling Case No. 22 and 23 of 1972. 3. The facts of the case is that one Harbansh Narain Singh, father of the appellant nos. 1, 2, 6, 7 and 8 had purchased 1 katha 4½ dhurs in two plots by two registered sale deeds dated 20.07.1972 out of plot no. 458 pertaining to khata no. 478 situated in mauja Garkha in the district of Saran from Late Jamuna Prasad and after purchase came in peaceful physical possession and started his business. Father of private respondent nos. 5 and 6, Late Thakur Prasad filed a pre-emption application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Ceiling Act). The pre-emption was challenged by the appellants before the DCLR. Late Thakur Prasad challenged the order of the DCLR on the ground of not being given an opportunity of hearing before this Court in C.W.J.C. No. 12634 and 12636 of 1992 whereby this Court remanded the matter to the DCLR to pass a fresh order after local inspection and decide the case on merits. Since there were two sale deeds, two ceiling cases were filed, parties adduced evidences, DCLR inspected the spot and vide order dated 27.03.1998 passed in Land Ceiling Case No. 22 and 23 of 1972, held that the land purchased by the appellants were agricultural land and allowed the pre-emption in favour of private respondents. Since there were two sale deeds, two ceiling cases were filed, parties adduced evidences, DCLR inspected the spot and vide order dated 27.03.1998 passed in Land Ceiling Case No. 22 and 23 of 1972, held that the land purchased by the appellants were agricultural land and allowed the pre-emption in favour of private respondents. The appellants moved in appeal before the Additional Collector being Appeal No. 10 and 11 of 1998 whereby the Additional Collector set aside the order of the DCLR vide order dated 16.11.2001 by himself holding a fresh spot inspection and taking statement of witnesses and holding that the land was a commercial plot and structure was erected nearly 20-21 years back on the said land although the land was recorded as agricultural land, Garkha Bazar was within the vicinity of half kilometer and the plot in question was surrounded by shops. The private respondents then preferred revision before the Additional Member, Board of Revenue, Bihar Patna in Case No. 249 and 248 of 2001. The Additional Member, Board of Revenue after taking into consideration only whether the nature of land was agricultural or non-agricultural at the time of filing of pre-emption application found that at the time of execution of sale deeds and filing of preemption application the land was agricultural, and, thus, allowed the pre-emption in favour of private respondents setting aside the order of the Additional Collector vide order dated 10.01.2004. This brought the appellants before the learned Single Judge in the two writs. The learned Single Judge also held that the issue to be decided was whether the suit property was agricultural land or nonagricultural on the date of transfer and even the sale deed and the records in the year 1972 would reveal that the land recorded was agricultural land, hence, dismissed the writ application. Hence this intra-court appeal. 4. Learned Senior Counsel Sri Keshav Srivastava appearing on behalf of the appellants duly assisted by Sri Gopal Pandey, Advocate submits that learned DCLR had decided the matter on remand by the writ Court passed in the earlier writ applications whereby he was directed to make a local inspection and decide the case on merits but the DCLR keeping in view the nature of land had decided pre-emption only on the basis of the land being agricultural on the date of transfer. The Member, Board of Revenue as well as learned Single Judge has also only taken into consideration the nature of land and finding it to be agricultural at the relevant time i.e. 1972, has allowed the pre-emption of the pre-emptors, private respondents. However, he urges that the Additional Member, Board of Revenue had taken into consideration that the total area of plot no. 458, khata no. 478 of village Garkha was 4 katha 16 dhurs standing in the name of Kishun Chand Raut and others in R.S. Khatiyan. Out of the said chunk of land vide sale deed dated 08.01.1924, the original land holders sold two kathas 9 dhurs in favour of Shiv Dayal Sah, father of private respondents and one Jamuna Prasad, half of which was the disputed plot which was sold to the father of the appellants by Jamuna Prasad way back in 1972. Some part of plot no. 458 was also sold on 26.12.1964, 18.05.1976, 13.11.1978 and 08.07.1980 to different persons. Thus, out of 2 kathas 9 dhurs of land of plot no. 458, 1 katha 4 ½ dhurs was sold to Harbansh Narain Singh, father of the appellants by Late Jamuna Prasad, the private respondents were left with only half i.e. 1 katha 4½ dhurs and, although, it was recorded as agricultural land but the appellants had constructed shops which was found existing in its spot inspection by the DCLR. What the DCLR and Additional Member, Board of Revenue failed to consider is that the small chunk of land of 1 katha 4½ dhurs remaining with the private respondents could not be used for agricultural purposes as the Ceiling Act has been predominantly drawn up for purpose of agricultural land ceiling but Section 16(3) of the Ceiling Act has been introduced giving a right of pre-emption to agriculturist to prevent fragmentation of land and resumption by certain rights for personnel cultivation of land. In this connection, he relies on a judgment in the case of Mohammad Yasin vs. Abdul Rauf and others since reported in 1967 BLJR 49. 5. However, Sri Shashi Shekhar Dubedi, learned Senior Counsel appearing for the private respondents submits that the finding of the DCLR, the Additional Member, Board of Revenue and the learned Single Judge are based on evidence, hence, the order of the learned Single Judge does not call for any interference. 5. However, Sri Shashi Shekhar Dubedi, learned Senior Counsel appearing for the private respondents submits that the finding of the DCLR, the Additional Member, Board of Revenue and the learned Single Judge are based on evidence, hence, the order of the learned Single Judge does not call for any interference. He submits that nowhere the appellants had made out a case that prior to purchase in the year 1972 the nature of land had already changed from agricultural land to residential land and nature of property will not be dependent on the subsequent development by the purchaser during pendency of pre-emption proceeding or subsequent development of a bazar near the purchased property, hence, the DCLR on the materials available on record gave a clear finding that on the date of transfer in the year 1972 the property was agricultural land which has also been taken note of by the Member, Board of Revenue. In this regard, he refers to the case of Nathuni Mahto Vs. State of Bihar and others since reported in 2004(2) PLJR 334 and in the case of Suresh Prasad Singh vs. Dulhin Phulkumari Devi and others since reported in (2010) 6 SCC 441 . 6. Heard the parties. Both the DCLR and the Additional Member, Board of Revenue have gone wrong in only considering the nature of land as agricultural and lost sight of the fact that out of plot no. 458 which was 4 katha 16 dhurs, 2 katha 9 dhurs were sold by the original landlord to the forefather of private respondents and Jamuna Prasad, from which Jamuna Prasad had sold half of the land to Harbansh Narain Singh, father of the appellants. Both the courts below as well as the learned Single Judge lost sight of the fact that pre-emption under Section 16(3) of the Ceiling Act is a right exclusively available for the land actually meant for agricultural operation and it is the resumption of agricultural land by certain rights for personal cultivation of land that the right of pre-emption has been given under Section 16(3) of the Ceiling Act to facilitate personal cultivation of land by certain classes of raiyats and to allow under-raiyats to acquire the status of raiyats. The fact that 1 katha 4½ dhurs left with the private respondents was a small piece of land, on which the pre-emptor private respondents were claiming pre-emption, would by no stretch of imagination be a large chunk of land which could be used for agricultural purposes. It has been held in the case of Kamlakant Goswami vs. Balgobind Sah and others since reported in 1971 BLJR 974 that small piece of land purchased in a bazar and in the vicinity of growing bazar will generally not fall within the mischief of pre-emption and such small plot of land was not ordinarily capable of organised agricultural activities. More so, when plot no. 458 was 4 katha 16 dhurs in 1924 wherein 2 katha 9 dhurs was sold to forefather of private respondents and Jamuna Prasad and it is from Jamuna Prasad that Harbansh Narain Singh, father of the appellants, had taken 1 katha 4½ dhurs by registered sale deed in 1972 in which the remaining 2 kathas 7 dhurs was further fragmented by different sale deeds to different persons in the year 1964, 1976, 1978 and 1980. 7. Considering the facts found, and that the transferred land of the appellants is a very small plot with constructions for the last 20-21 years, which could not be used for agricultural purposes, the order of the learned Single Judge dated 18.11.2016 is set aside. Consequently, the orders of the DCLR dated 27.03.1998 and Additional Member, Board of Revenue dated 10.01.2004 are also set aside. 8. Appeals are allowed. Ajay Kumar Tripathi, J : I agree.