BIBI EDA KHATOON Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Articles 226 and 227 of the Constitution for issuance of a writ of certiorari quashing Annexures 1 and 2. Annexure 1 contains the order passed by the Additional Collector, Aurangabad, in Ceiling Appeal No. 166 of 1975-76, on 22nd Aug., 1977, whereby he set aside an order dated 28th November, 1975, passed by the Land Reforms Deputy Collector, Aurangabad, rejecting the application of respondent No. 2 for pre-emption under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, (hereinafter called the Act), Annexure 2 contains the order of the Board of Revenue in Case No. 263 of 1977, passed on 19th June, 1978, dismissing the application of the petitioner against the order of the Additional Collector mentioned above.

(2.) The petitioner purchased 1 bigha 2 kathas of land appertaining to Khata No. 220, plot No. 3097, situate in village Karap, Tola Fira Bigha, Police Station Rafiganj, district Aurangabad, from one Moulvi Hafizur Rahman of the same village on 25th September, 1974. Plot No. 3097 measuring 3.41 acres belonged to Moulvi Hafizur Rahman. According to the petitioner, there were a number of houses including power-loom factory owned by respondent No. 2 over the land. Respondents Nos. 2 and 3 also purchased a portion of the said plot measuring 7 1/2 kathas on the same date through a registered sale deed from Moulvi Hafizur Rahman. Respondent No. 2 Md. Ramzan was a witness in the sale deed executed in favour of the petitioner. Respondents Nos. 2 and 3 filed an application under Section 16 (3) of the Act before the Sub-divisional Officer, Aurangabad, on 6th June, 1975. The application was sent to the Deputy Collector, Land Reforms, Aurangabad, and was registered as Ceiling Case No. 36 of 1975-76. In receipt of a notice, the petitioner appeared and filed a show cause stating, inter alia, that the application for pre-emption was not maintainable because the land in question was Basgit and that the petitioner also held land on the boundary of the land purchased. The Deputy Collector Land Reforms, after hearing the parties, dismissed the application for pre-emption. Respondents Nos. 2 and .3 thereupon filed an appeal before the Additional Collector, Aurangabad, who reversed the decision of the Deputy Collector Land Reforms and allowed pre-emption. The petitioner took the matter to the Board of Revenue in revision, and lost. The Additional Collector as also the Member, Board of Revenue found that the land in question was not a homestead land and that the petitioner had no land adjacent to the land in question, whereas respondents Nos. 2 and 3 were adjoining tenants.

(3.) In their show cause filed in this Court, respondents Nos. 2 and 3 have stated that the land in question is described in the Khatian as Dhanahar land and in the sale deed as Kasht Nagdi Kaimi. It is further stated that respondents Nos. 2 and 3 were using it as a homestead of an agriculturist and just in a portion of the said house there was a powerloom Kargha. It has been also asserted that the petitioner is not a boundary tenant of the land in question. The land of the petitioner in plots Nos. 3100 and 289 and the land in question are intervened by a Rasta which are plots Nos. 3676 and 3090.