NATHUNI MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD Mr. Amrendra Nath Verma for the petitioner, learned JC to GP II for respondent nos. 1 to 5, and Mr. Sanjeev Kumar No. I for respondent no. 6. This writ petition is directed against the order dated 26.4.2000 (Annexure 6), passed by the learned Member, Board of Revenue in Case No. 59 of 2000 (Nathuni Mahto V/s. Shrinath Tiwari), whereby he has dismissed the revision application at the instance of the present petitioner in terms of Section 32 of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act). The present petitioner had purchased two portions of the same plot, namely plot no. 266, appertaining to Khata no. 344one measuing 1 Katha and 8 dhurs, and the other measuring 1 Katha and 10 dhurs, from the same vendor (respondent no. 7, Basant Natn Tiwary), by two separate registered deede of absolute sale dated 3.4.93. Respondent no. 6 filed a pre -emption application before the learned LRDC claiming pre -emption in terms of 16 (3) of the Act on the ground that he is an adjoining raiyat of the vended land. The same was allowed by order dated 19.9.99 (Annexure 4), passed by the learned Deputy Collector Land Reforms. The present petitioner preferred an appeal before the learned Collector of the district of West Champaran, Bettiah, which was registered as R.M. No. 19/1999 -2000 (Nathuni Mahto V/s. Srinath Tiwari) by order dated 22.3.2000 (Annexure 5). The petitioner preferred revision application in terms of Section 32 of the Act before the Board of Revenue which has been rejected by the impugned order.

(2.) WHILE assailing the validity of the impugned order, learned counsel for the petitioner submits that pre -emption being a weak right, the purchaser is entitled to defeat the same by any lawful means. In the present case, in his submission, he himself became an adjoining raiyat with respect to his own and purchased by two sale deeds. He relies on the Division Bench judgment of this Court reported in 1987 PLJR 456 (Ram Roop Yadav V/s. State of Bihar). He next submits that the petitioner is a landless person, and in case of doubt or difficulty, the court must lean in favour of the landless purchaser, otherwise he shall always remain landless. He relies on the Division Bench judgment of this Court reported in 1997 (2) PLJR 287 (Nathuni Singh Yadav & Another V/s. State of Bihar).

(3.) I have perused the orders of the three authorities on record and considered the submissions of learned counsel for the parties. All the three authorities have concurrently found that the petitioner (the purchaser) is neither a co -sharer nor an adjoining raiyat of the vended lands, respondent no. 6 (pre -emptor) is an adjoining raiyat of the vended lands, and the petitioner is admittedly not a landless person. In so far as the first submission advanced on behalf of the petitioner is concerned, I am unable to accede to the same. The vended lands are portions of the same plot where the vendor and the vendee are the same persons and the documents have been executed on the same day. On account of such a transaction in my view, the petitioner does not become an adjoining raiyat. Let us test the submission of learned counsel for the petitioner by taking a hypothetical case. Suppose the petitioner had purchased only one portion on a particular day and in a situation where he was neither a co -sharer nor an adjoining raiyat of the vended land. In such circumstances, application for pre -emption with respect to such plot will succeed. When the first application for pre -emption with respect to such a plot is allowed, it will automatically, lead to success of the next application for preemption with respect to the second portion of the land purchased some time later. I am, therefore, of the view that such a purchase as has taken place in the present case, does not make the petitioner an adjoining raiyat of the vended land. In order to defeat the claim of pre -emption, the purchaser should have been a co -sharer or an adjoining raiyat from before. In the present case, both the portions of the vended land are on trial and have to simultaneously survive the test of Section 16 (3) of the Act, namely, the purchaser should be a co - sharer and/or adjoining raiyat from before, and not by such a simultaneous purchase. The act of the purchaser in the instant case by splitting the same plot into two is a mala fide act to defeat the claim of preemption and is intended to defeat the intention, aim and object of the legislature and almost verges on fraud. In so far as the judgment in the case of Ram Roop Yadav (supra) is concerned, the same was rendered in view of the facts and circumstances of that case which stood on a different footing.