Patna High Court
Prabhabati Devi vs State Of Bihar And Ors on 18 January, 2020
Equivalent citations: AIRONLINE 2020 PAT 119
Author: Prabhat Kumar Jha
Bench: Prabhat Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11675 of 1994
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Prabhabati Devi, Wife of Shri Ganesh Singh, Resident of Village Kushahan,
P.O. Jhanjhwa Bazar, District Gopalganj.
... ... Petitioner/s
Versus
1. The State of Bihar.
2. The Additional Member, Board of Revenue, Bihar, Old Secretariat, Patna.
3. Additional Collector, Gopalganj.
4. The Land Reforms Deputy Collector, Gopalganj.
5(a) Rampati Devi, Widow of late Asharfi Prasad.
5(b) Bhagwati Prasad, Son of Late Asharfi Prasad.
5(c) Durga Prasad, Son of Late Asharfi Prasad, All residents of Village
Kushanan, P.O. Jhanjhawa Bazar, District Gopalganj.
6. Pataro Devi, Wife of Late Lal Bahadur Bhagat, Resident of Village
Kushahan, P.O. Jhanjhwa Bazar, District Gopalganj.
7. Rajmati Devi, Wife of Shri Rajendra Prasad, Resident of Village Kushahar,
P.O. Jhanjhwa Bazar, District Gopalganj.
... ... Respondents
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Appearance :
For the Petitioner : Mr. Waliur Rahman, Advocate
For Res. No.5 : Mr. Y.V. Giri, Senior Advocate
Mr. Nikhil Kumar Agrawal, Advocate
For the State : Mr. Ajay, G.A.12
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CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA
CAV JUDGMENT
Date : 18-01-2020 The petitioner in this writ petition seeks quashing of the order dated 07.12.1993 (Annexure-1), passed by the learned Additional Member, Board of Revenue, Bihar in Land Ceiling Revision Case No.325 of 1993 and the order dated 21.05.1993 (Annexure-2), passed by the Additional Collector, Gopalganj in Land Ceiling Appeal No.10 of 1993/18 of 1992-93 by which the Additional Collector set aside the order of the Deputy Collector Land Reforms, passed in Land Ceiling Case No.1 of 1992-93 and the learned Additional Member, Board of Revenue affirmed the order passed by the Additional Collector.
Patna High Court CWJC No.11675 of 1994 dt.18-01-2020 2/8
2. The petitioner is the vendee of 2 Kathas 6 Dhurs of land of Khesra No.639(part) of Khata No.644 from respondent no.6, Pataso Devi and respondent no.7, Rajmati Devi. Respondent No.5, Asharfi Prasad (now deceased and his legal heirs have been substituted) filed petition under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter referred to as 'the Act') claiming himself to be the co-sharer and adjoining raiyat of the land bearing Plot No.639 purchased by the petitioner. The preemptor also claimed the land to be agricultural land. The petitioner appeared and filed objection. The petitioner stated that the preemptor has wrongly mentioned the boundary of the land purchased by the petitioner and not described in the sale deed. The petitioner further stated that from boundary of purchased land, it would be clear that there are roads from east and west side of the land and in the northern portion, the land of Sadhu Bhagat is situated. In the southern portion, the land of Indrajeet Bhagat, the father of respondent no.5 is situated. The petitioner purchased the land situated adjacent west to the Chapra-Siwan main road and the petitioner purchased the same for construction of house and shops. Plot No.640 is a Parti land and on Plot No.641, there is a residential house. On Plot No.642, there is a flour mill. On Plots No.643, 644 and 645, there are residential houses, likewise, towards south of Plot No.639, Plot No.638 is situated, which is vacant land but adjacent to that, Plot No.637 is situated on which there are four storied building. On the second block of the land, Asharfi Prasad, the preemptor, has also constructed house after purchasing the same @ Rs.30,000/- per Katha. Only Plot No.634 is a Parti land surrounded by compound wall but on Plot No.810, there are many shops. A sketch map was also appended. The Deputy Collector Land Reforms during Patna High Court CWJC No.11675 of 1994 dt.18-01-2020 3/8 the course of hearing called for a report from the Anchal Adhikari, Baikunthpur and when the Anchal Adhikari did not submit the report, on the prayer of the petitioner, the Deputy Collector Land Reforms, Gopalganj himself inspected the plot in question and submitted the report. The Deputy Collector Land Reforms dismissed the preemption case holding that the land although mentioned in the record of rights as Dih but the land is meant for construction of house and there is no application of Section 16(3) of the Act. The preemptor filed Land Ceiling Appeal No.10 of 1993/18 of 1992-93 and the Additional Collector allowed the appeal holding that the Deputy Collector Land Reforms himself should not have inspected the disputed plot after hearing both the parties and based his finding on the report of the Anchal Adhikari that the land is agricultural land, set aside the order of the Deputy Collector Land Reforms by allowing the appeal. The petitioner preferred Land Ceiling Revision Case No.325 of 1993 and the learned Additional Member, Board of Revenue, Bihar, Patna held that beside the fact that the preemptor being co-sharer of the vended land, preemptor is also an adjoining raiyat of the vended land and held that the Anchal Adhikari has very categorically reported that the nature of the land is Dih agricultural. The learned Additional Member, Board of Revenue, Bihar, Patna further held that the land is the land of a raiyat or a cultivator and is connected with agriculture. Even if the land is situated at a short distance from Mohammadpur cross section of two pucca road which is purely an agricultural piece of land of a cultivator and the same is not homestead and connected with agriculture. Even the homestead of a cultivator connected with agriculture comes within the definition of land and dismissed the revision petition. Thus, the petitioner filed this writ petition. Patna High Court CWJC No.11675 of 1994 dt.18-01-2020 4/8
3. Learned counsel for the petitioner submits that the petitioner purchased a small piece of land for the purpose of construction of house. Admittedly from two sides from the western and eastern side of the vended land, there is a Rasta. Even in and around the land purchased by the petitioner, there are many houses and at some distance, there are Mohammadpur Bazar. In the sale deed itself, the petitioner mentioned the purpose of purchasing the land for construction of house and shops and there are many houses and shops situated in and around the purchased land by the petitioner. A sketch map was also filed but the Additional Collector as well as the learned Additional Member, Board of Revenue did not consider this aspect of the fact that the plot is situated adjacent to the market place and by the two sides of road. Even from northern and southern side of the plot, there are many house. Learned counsel for the petitioner in support of his contention placed reliance on the judgment of this Court in the case of Nagendra Singh v. State of Bihar, reported in 2009 (1) PLJR 28 in which it has been held that the land is situated 50 yards away from a market place and surrounded by houses on both sides of the State Highway but the preemption application was allowed on the ground that on the date of inspection, maize crop was standing on the land in question but this Court held that with regard to such land bounded by houses in and around the vicinity of the land in question and situated at a short distance from the market, there shall be no application of Section 16(3) of the Act. It is further submitted that the land of Indrajeet Bhagat is situated in the southern boundary of the vended land. The preemptor is one of the sons of Indrajeet Bhagat but preemptor has not stated that by virtue of partition, any part of the land fell in his share and, therefore, it is not clear that the petitioner is the adjoining raiyat of the land.
Patna High Court CWJC No.11675 of 1994 dt.18-01-2020 5/8
4. The respondent-preemptor filed counter affidavit. Learned counsel for the respondent-preemptor submits that as per the own admission of the petitioner, the grandfather of the respondent, namely, Indrajeet Bhagat has been shown in the southern boundary of the property under preemption. Even if the own brother of Asharfi Prasad has not joined in the preemption application filed before the Deputy Collector Land Reforms. Preemption application is maintainable on behalf of one of the brothers. Learned counsel placed his reliance in support of his contention on the judgment reported in 2009 (3) PLJR 224 (Jaleshwar Chaubey v. State of Bihar). It is further submitted that the petitioner is trying to give an impression that the land in question was surrounded by construction and since the same is situated near by to a Bazar, Highway Road, the land is not suitable for agriculture and can only be used commercially but the petitioner has not brought on record any document to show that the nature of land has changed and infact the land is still used for agricultural purpose. It is further submitted that of course Mohammadpur Chowk is situated at some distance from the land but Mohammadpur is not a municipality nor a notified area. It is simply a crossing of two pucca roads with few shops and houses and the land in question is not situated within a crowded locality of a municipality or surrounded by houses.
5. Having heard both sides and on the basis of the submissions, one and only question arises as to whether the land purchased by the petitioner is purely an agricultural land and the preemption application is maintainable even though the land is situated and surrounded by roads, highways and houses in and around and there is a market place just few yards away from the land?
Patna High Court CWJC No.11675 of 1994 dt.18-01-2020 6/8
6. It is evident from the facts and the statements made in the writ petition that the petitioner purchased only 2 Kathas 6 Dhurs of land of Plot No.639. Admittedly in the southern boundary of the land, the land of Indrajeet Bhagat is situated. Indrajeet Bhagat is the father of Asharfi Prasad, the preemptor-repondent no.5. When Asharfi Prasad filed preemption petition for re-conveyance of the sale deed on the ground of his being co-sharer and adjoining raiyat of the vended land, the petitioner objected the preemption petition mainly on the ground that the nature of the land by efflux of time although recorded as Dih in the record of rights has changed and in and around the vended Plot No.639, there are many plots such as 640, 641, 642, 638, 637, 634 and 810. Many persons have constructed their houses and shops in and around the vended land. Even respondent no.5, the preemptor, constructed shops from northern side of Plot No.637 after purchasing the same. The respondents have not denied the statements of the petitioner made in para 5 of the writ petition. The writ petitioner also appended the sketch map (Annexure-5) and many constructions made on different plots situated in and around the plot in question (Annexure-5/a) and this fact has not been denied by the preemptor. The Additional Collector while allowing the appeal recorded the finding on the basis of the report of the Anchal Adhikari that the nature of the vended land is agricultural but the Anchal Adhikari did not report about the construction made in and around the vended land. Similarly, the learned Additional Member, Board of Revenue who also affirmed the findings of the Additional Collector while dismissing the revision petition recorded that the preemptor is, besides being coparcener, an adjoining raiyat and even though the land is homestead, the land is used by the raiyat as cultivator, therefore, preemption application is maintainable but on the face of Patna High Court CWJC No.11675 of 1994 dt.18-01-2020 7/8 the finding, it appears that both the Additional Collector as well as the learned Additional Member, Board of Revenue failed to appreciate the fact that although the vended land is mentioned as Dih in the record of rights, nature of other plots in and around situated and surrounded by the vended plot is also Dih but by efflux of time, the nature of land of many plots has changed and shops and houses were constructed by different persons, a list of which is appended with the writ petition as Annexure-5/a and this statement has not been denied by the preemptor but since the vended plot is a Parti land, the Additional Collector and the learned Additional Member, Board of Revenue allowed the preemption case. It has been clearly held in the case of Nagendra Singh (supra) that if a plot is situated some yards away from a market place and surrounded by the houses on both sides and the land is also situated by the side of the road in such circumstances, there is no application of Section 16(3) as the land is meant for commercial and residential purpose.
7. The right of preemption itself is a weak right but it has been conferred by a Statute with an object to prevent the fragmentation of plots for the use detriment to agriculture purpose but on account of explosion of population many such lands have been covered for the purpose of construction of residential houses and for the use of commercial activities. If a piece of land is situated in and around the house and commercial places and the same plot is also situated by the side of roads from two sides, in my view, the preemption application for such land is not maintainable. The Legislature has by (Bihar Act 6 of 2019) brought an amendment in Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act and repealed sub-section (3) of Section 16. The amendment also provides insertion of sub- clause 4(i) and 4(ii) of Section 16 which provides for abatement of any Patna High Court CWJC No.11675 of 1994 dt.18-01-2020 8/8 proceeding pending in any court with regard to right of preemption and thus, on account of abolition of right of preemption during the pendency of this writ petition, the preemptor has got no existing right to enforce preemption.
8. Having considered the facts and discussions made above, I find that the order dated 21.05.1993, passed by the Additional Collector, Gopalganj in Land Ceiling Appeal No.10 of 1993/18 of 1992-93 and the order dated 07.12.1993, passed by the learned Additional Member, Board of Revenue, Bihar in Land Ceiling Revision Case No.325 of 1993 are not sustainable, accordingly, set aside and consequently the writ petition is allowed.
(Prabhat Kumar Jha, J.) S.KUMAR/-
AFR/NAFR NAFR CAV DATE 03.10.2018 Uploading Date 18.01.2020 Transmission Date N/A