PRABHABATI DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) 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.

(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 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.

(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.