Jharkhand High Court
Ram Prasad Sao And Ors. vs The State Of Bihar (Now Jharkhand) And ... on 4 March, 2007
Equivalent citations: 2007 (3) AIR JHAR R 306, (2007) 2 JLJR 662
Author: Permod Kohli
Bench: Permod Kohli
JUDGMENT Permod Kohli, J.
1. This writ application is directed against the order dated 3rd August, 1989, passed by respondent No. 2, the revisional authority, in Land Ceiling Revision No. 151 of 1989, setting aside the judgments and orders, passed by its sub-ordinate authorities, and ordered delivery of possession of the property, in question, in favour of Indradeo Sao, respondent No. 5 herein.
2. Briefly stated the facts, giving rise to the present writ application, are that the petitioners herein purchased a piece of land, measuring 33 Decimals (8 Kattha and 17 Dhurs), comprising of Survey Plot No. 935, Khata No. 113 of Village Chiraungia, P.S.- Garhwa in the then district of Palamau (now Garhwa) vide a registered sale deed dated 16th February, 1985 from respondent No. 6, Nathuni Sao, for a consideration of Rs. 7,000/-. It is alleged that this land was purchased for residential purpose. Petitioners also came into possession over the land, in question, on execution of the sale deed. Respondent No. 5, Indradeo Sao, filed an application under Section 16(3) of the Bihar Land Ceiling Act on 15th May, 1985 i.e. within the prescribed time of three months before the Land Reforms Deputy Collector, Garhwa, claiming right of pre-emption, as an adjoining raiyat. This application was registered as Land Ceiling case No. 9 of 1985. The authority i.e. Land Reforms Deputy Collector, after allowing the parties to file affidavits, dismissed the application vide order dated 26th June, 1986, holding that though the land, in question, is recorded as an agricultural land (Tand-3), however, houses having been constructed on both the sides of the land and the land being situated within one mile from Garhwa Town, it has been urbanized and is not being used for agricultural purposes, thus, does not come within the purview of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be referred as Bihar Land Ceiling Act)
3. With a view to support its findings, the Land Reforms Deputy Collector has stated that three purchasers have purchased the land for building purposes and shares of these persons come to 161/2, 81/4 & 81/4 Decimals respectively and this much land cannot be used for agricultural purposes. It is also mentioned that the sale consideration is Rs. 7,000/-, which come to Rs. 21,000/- per Acre and this price for the land, in question, is too exorbitant, which also indicates that the property has been purchased for residential purpose and not for agricultural purpose.
4. Respondent No. 5 preferred an appeal before the appellate authority i.e. respondent No. 3, Additional Collector, Palamau at Daltonganj, who concurred with the findings of respondent No. 4, the Land Reforms Deputy Collector, Garhwa, and dismissed the appeal vide order dated 30th January, 1989. Against the concurrent finding of fact a revision petition came to be preferred by respondent No. 5 before the Board of Revenue, Bihar, being Land Ceiling Revision No. 151 of 1989. The revisional authority, in exercise of jurisdiction under Section 32 of the Bihar Land Ceiling Act, however, reversed the judgments of both the courts and allowed the application for pre-emption.
5. The ground on the basis of which revisional authority set aside the judgments of the courts below is indicated in paragraph No. 6 of the impugned judgment. It has been held that in terms of Section 2(f) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 the 'land' is defined. "Land" means a land which is used or capable of being used for agriculture and horticulture purposes. According to revisional authority, it is only the classification of the land, which is relevant for the purposes of Section 16(3) of the Bihar Land Ceiling Act, irrespective of the fact whether there has been urbanization or not. The revisional authority, accordingly, set aside the judgments on the interpretation of the provisions of Section 16(3) read with Section 2(f) of the Bihar Land Ceiling Act.
6. I have heard learned Counsel appearing for the parties. It is not in dispute that the nature of the land recorded is Tand-3, which is, admittedly, an agricultural land, though not of a high quality. The only question, which needs consideration, is whether the urbanization of the adjoining areas is sufficient to declare the land, which is otherwise an agricultural land, as non-agricultural so as to bring it out of the purview of Section 16(3) of the Act. Provisions of Section 16(3) read with 2(f) of the Bihar Land Ceiling Act have been interpreted by the Apex Court in the case of Ramji Sharma v. State of Bihar , wherein, in paragraph No. 4 of the judgment, the Apex Court has observed as under:
4. The question which is to be answered is as to whether the expression 'land' as defined in the Act will include not only the lands which are being used or capable of being used for agriculture or horticulture purposes but also lands within the urban areas meant for building purposes. It is well known that in and around the towns and urban areas at one point of time most of the lands were being used for agriculture purposes. With growth of population and development activities slowly-slowly such agricultural lands are converted to uses which are non-agricultural. Many colonies have been developed by the side of the old cities which at one point of time were agricultural fields and crops used to be grown. But with passage of time and cry for more plots of land for construction of buildings they lost their original character and purpose. It appears that the framers of the Act were quite conscious of this aspect of the matter, that is why while defining 'land' they laid much emphasis in respect of the nature of use such land was being put to by saying that it meant land which is used or capable of being used for agriculture or horticulture or the homestead of the landholder. It need not be pointed out that the sole object of the Act is to put ceiling on the lands held by landholders for agriculture or horticulture purposes and to declare the areas beyond the ceiling as surplus which shall vest in the State Government. In this background neither it can be assumed nor it can be held that the framers of the Act had in mind even the lands which are in the heart of the cities meant for construction of buildings. It is a matter of common knowledge that even in areas which are completely urban in nature or even in a colony some plots are lying vacant as no constructions have been made over the same for one reason or the other including financial constraint. Till constructions are made they are being used for growing some crops or fruits. But can it be said that such plots which are meant for building purposes shall be deemed to be land within the meaning of Section 2(f) of the Act? According to us, the answer is in negative Whenever an application under Sub-section (3) of Section 16 is filed, Court concerned should first examine what is the primary object for which such land was being used or is capable of being used. If it is found that the land was being retained by the transferor or was being transferred to another person for a purpose and object which is not connected with agriculture then an application under Sub-section (3) of Section 16 should not be entertained. On the other hand, if the authorities or the High Court are satisfied that the land which has been transferred is fully covered by the definition of land as given under Section 2(f) then provisions of the Act have to be applied for examining the question as to whether the applicant was entitled for retransfer in his favour from the transferee on the same terms and conditions. A Full Bench of the Patna High Court in the case of Fakir Mohd. v. Salahuddin, presided over by N.L. Untwalia, C.J. (as he then was) examined the scope of the expression 'land' as defined in Section 2(f) of the Act. It was observed:
The consensus of opinion- and, as I shall presently show, there is no conflict in any of the decisions- is that a parti piece of land belonging to a raiyat, an agriculturist, which is his homestead on which there is no dwelling house or any of the things us mentioned in the Explanation, is not a land covered by the Act. It has been further pointed out that a land fit for building purposes not connected with agriculture situated ordinarily and generally in town or bazaar areas, to which are applicable the provisions of the Transfer of Property Act, is not (he homestead of a landholder to make it a land within the meaning of Section 2(f).
(emphasis supplied) We are in agreement with the view express in the aforesaid judgment of the Full Bench
7. The Apex Court in the aforesaid judgment has clearly indicated that the authorities while considering an application under Section 16(3) are required to examine what is the primary object for which such land was being used or is capable of being used and if it is found that the land was being retained by the transferor or was being transferred to another person for a purpose and object, which is not connected with agriculture, then an application under Section 16(3) should not be entertained. The present case is required to be examined on the touchstone of the decisions, laid down by the Apex Court in the aforesaid judgment. There is a concurrent finding of fact by respondent Nos. 4 and 3 that the land is situated within one mile from Garhwa town and houses have come up on both the sides of this land. It has also come in evidence that three houses have been constructed, adjoining the land in dispute.
8. Learned Counsel appearing for respondent No. 5 has vehemently argued that the authorities below have returned the findings merely on the basis of surmises and conjectures and affidavits, filed by the parties, without allowing them to lead oral evidence. With a view to support his contention, learned Counsel appearing for respondent No. 5 has relied upon the provisions of Section 33 of the Bihar Land Ceiling Act, which, inter alia, provides for holding an enquiry by the authorities under the Act and for the purposes of making an enquiry the authorities have been vested with the power under the Code of Civil Procedure for trying a suit for the purpose i.e. (a) admission of evidence by affidavits; (b) summoning and enforcing the attendance of any person and examining him on oath; (c) compelling the production of documents; and (d) award of costs.
9. Based on the aforesaid provisions, it is contended that both the sides had filed affidavits. The affidavit, filed by respondent No. 5, clearly indicates that the land was being used for agriculture purposes whereas the affidavit from the other side indicates that houses have come up on the sides of the land, in question. According to him, the affidavits were not sufficient to arrive at a conclusion regarding the urbanization of the property. It is, accordingly, stated that the courts below should have asked for oral evidence to appreciate the facts regarding the urbanization of the area.
10. I have perused the order of the revisional authority. The revisional authority has not set aside the orders of the courts below on this ground. Otherwise also Section 33 only speaks of an enquiry and not trial like a civil suit and while holding enquiry, the authorities have been vested with the power to receive evidence by way of affidavits. If respondent No. 5 was not satisfied with any affidavit or affidavits of other side, it was open to him to have made a proper application before the concerned authorities for further cross-examination of the deponent, whose affidavits were filed, or for leading oral evidence. It is not the case of respondent No. 5 that such an application was made and the authorities have not considered the same or refused the same for no reason. As a matter of fact, whatever evidence was led by them before the first authority, basing upon such evidence concurrent findings have been returned. The revisional authority without disturbing the concurrent finding of fact set aside the orders only on interpretation of the provisions of Section 16(3) of the Bihar Land Ceiling Act. On the basis of established facts, the ratio of the judgment of the Apex Court, referred to above, is fully applicable. In view of the fact that the area has been urbanized and the land is only 33 Decimals that too divided into three shares and on the basis of the findings that the land has been purchased for residential purposes, it cannot be said that it continues to be an agricultural land. The revisional authority has committed a glaring illegality in setting aside the judgments, without disputing the evidence on record for which there was concurrent finding. In view of the above circumstances, this writ petition is allowed and the judgment and order dated 3rd August, 1989, passed by revisional authority i.e. respondent No. 2 in Land Ceiling Revision No. 151 of 1989 is hereby set aside and the application of respondent No. 5 for pre-emption is hereby dismissed; However, in the facts and circumstances there shall be no order as to costs.