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2019 DIGILAW 1892 (JHR)

Pokhan Kumhar v. Dularchand Ram

2019-11-20

RAJESH SHANKAR

body2019
ORDER : The present writ petition has been filed for quashing the order dated 10.03.2008 passed by the Member, Board of Revenue, Jharkhand in Revision Case No. 55 of 2007 whereby the said revision preferred by the respondent no. 4 against the order dated 01.10.2007 passed by the Additional Collector, Giridih in Appeal Case no. 16 of 2006-07 has been allowed and the said order dated 01.10.2007 has been set aside. 2. The factual background of the case as stated in the writ petition is that the respondent no. 4 purchased 28 decimals of land from the respondent nos. 1 to 3 situated at khata no.-05, plot nos. 247 and 248, mouza- Mohlidih, P.S. Ahilyapur, District-Giridih, by way of registered sale deed dated 02.04.2005. The petitioner being the owner of the plot no. 246 i.e. adjacent raiyati land of plot nos. 247 and 248 preferred a pre-emption application on 06.06.2005 under Section 16(3) (i) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (in short “the Act, 1961”) before the Deputy Collector Land Reforms (D.C.L.R.), Giridih after depositing the consideration amount of Rs.56,000/- mentioned in the sale deed dated 02.04.2005 together with 10 % of the said amount. The said application was registered as L.C. Case No. 84 of 2005-06. According to the petitioner, the respondent no. 4 with a motive to change the nature of the land and to deprive the petitioner of getting the benefits of the provisions of Section 16 (3) of the Act, 1961 started construction work over the said land. During pendency of the pre-emption application, the petitioner preferred an application on 13.06.2005 before the D.C.L.R., Giridih as well as on 25.07.2005 and 26.07.2005 before the Officer-in-Charge, Ahilyapur P.S. and the Superintendent of Police, Giridih respectively requesting inter alia to stop the construction being made over the said land by the respondent no. 4 as the same would have changed the nature of the land. On the direction of the D.C.L.R., Giridih, a report in that regard was called from the Circle Officer, Gandey who submitted the report vide letter no. 185 dated 27.05.2006 stating inter alia that a stone boundary wall and a house had been constructed over the same. 4 as the same would have changed the nature of the land. On the direction of the D.C.L.R., Giridih, a report in that regard was called from the Circle Officer, Gandey who submitted the report vide letter no. 185 dated 27.05.2006 stating inter alia that a stone boundary wall and a house had been constructed over the same. Considering the fact that there was already a construction made over the said land, the pre-emption application preferred by the petitioner under Section 16(3) (i) of the Act, 1961 was rejected by the D.C.L.R., Giridih vide order dated 25.11.2006. Aggrieved by the said order, the petitioner preferred an appeal before the Additional Collector, Giridih being Land Ceiling Appeal no. 16 of 2006-07. The learned Additional Collector, Giridih after considering the fact that the structure was erected over the said land during the pendency of the application filed by the petitioner under Section 16(3) (i) of the Act, 1961, allowed the appeal preferred by the petitioner giving him benefit of 16 (3) of the Act, 1961. Against the said order, the respondent no. 4 preferred Revision Case No. 55 of 2007 before the Member, Board of Revenue, Jharkhand and the said court vide impugned order dated 10.03.2008 allowed the said revision primarily considering the fact that even at the time of passing of the original order dated 25.11.2006 by the D.C.L.R., Giridih, the nature of the land did not remain agricultural. 3. The main submission of the learned counsel for the petitioner is that the petitioner had taken due steps before the D.C.L.R., Giridih by filing an application bringing it to the knowledge of the said authority that the respondent no. 4 was making construction over the land with an intention to change the nature of the same for which the pre-emption application was preferred by the petitioner. Though the D.C.L.R., Giridih called for a report from the Circle Officer, Gandey, yet the said report was submitted as late as on 27.05.2006 i.e. after about eleven months from the date of preferring the application by the petitioner and hence there was no fault on the part of the petitioner. In fact, the respondent no. 4 in a clandestine manner changed the nature of the land during the pendency of the pre-emption application preferred by the petitioner before the original authority. In fact, the respondent no. 4 in a clandestine manner changed the nature of the land during the pendency of the pre-emption application preferred by the petitioner before the original authority. The said fact has not been considered by the learned Member, Board of Revenue while passing the impugned order dated 10.03.2008 in Revision Case No. 55 of 2007 and as such the same is liable to be quashed. 4. Mr. Vijay Kumar Roy, learned counsel for the respondent nos. 1 to 3 as well as the respondent no. 4 submits that the report submitted by the Circle Officer, Gandey before the D.C.L.R., Giridih clearly suggested that the boundary wall as well as house were already constructed over the said land as such the benefit of pre-emption under Section 16(3) of the Act, 1961 could not have been given to the petitioner. The said aspect has duly been considered by the learned Member, Board of Revenue while passing the impugned order dated 10.03.2008 and hence the same does not require any interference of this Court. 5. I have carefully gone through the relevant documents available on record including the orders passed by the D.C.L.R., Giridih, Additional Collector, Giridih as well as the Member, Board of Revenue, Jharkhand. The admitted fact in the present case is that the boundary wall and the house were already constructed before passing of the order dated 25.11.2006 by the D.C.L.R., Giridih. Considering the said aspect, the D.C.L.R., Giridih dismissed the pre-emption application of the petitioner. However, the learned Additional Collector while considering the appeal preferred by the petitioner appreciated the fact that the said construction was made during the pendency of the pre-emption application and allowed the said appeal whereas the learned Member, Board of Revenue, Jharkhand while passing the impugned order dated 10.03.2008 took into consideration that the nature of the land had already changed before passing the order by the original authority and hence, the benefits of provisions of Section 16(3) of 1961 could not have been extended to the petitioner. I find no infirmity in the impugned order dated 10.03.2008 passed by the Member, Board of Revenue, Jharkhand as well as the order dated 25.11.2006 passed by the D.C.L.R., Giridih. 6. The “land” has been defined under Section 2(f) of the Act, 1961 which reads as under:- “2(f). I find no infirmity in the impugned order dated 10.03.2008 passed by the Member, Board of Revenue, Jharkhand as well as the order dated 25.11.2006 passed by the D.C.L.R., Giridih. 6. The “land” has been defined under Section 2(f) of the Act, 1961 which reads as under:- “2(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 land-holder.” 7. It would thus be evident that the right of pre-emption can be claimed by an adjoining raiyat under the said Act in relation to the land which is agricultural or horticultural in nature which includes orchard, kharhur or pasturage or the land perennially submerged under water or the homestead of land-holder. Though there was a delay in submission of the report by the Circle Officer, Gandey in the original proceeding, yet admittedly there was a house and boundary wall constructed over the said land. Hence, the nature of the land had already changed. As on date, the house and boundary wall are existing over the land in question and as such, no benefit of pre-emption under Section 16(3) can be extended to the petitioner. 8. In view of the aforesaid facts and circumstance, I find no merit in the preset writ petition and the same is accordingly dismissed.