BHARAT PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioners are the purchasers and the order dated 22.10.1990 passed by the Additional Member Board of Revenue in revision case No. 183 of 1999 is under challenge. By this order the revisional authority has set aside the order passed by the Additional Collector, Gopalganj, in Appeal No. 9 of 1991. Petitioners have also challenged the order passed by the D.C.L.R., Gopalganj, in Land Ceiling Case No. 33 of 1987-88 by which pre-emption application of respondent No. 7 has been allowed.

(2.) Petitioners have purchased the land appertaining to khata No. 70, plot No. 516 measuring 1 katha 2 dhoors situated in village Santpur through a registered sale deed dated 26.9.1987 from respondent No. 8 Sheo Shankar Singh. On completion of the registration of the sale deed, respondent No. 7 filed pre-emption application under Section 16(3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the 'Act') and case No. 33 of 1987-88 was registered before the D.C.L.R., Gopalganj, Respondent No 7 claimed to be the adjacent raiyat of the vended plot. The D.C.L.R. by order dated 22.10.1990 allowed the pre- emption application filed by respondent No. 7 holding respondent No. 7 an adjacent raiyat. Being aggrieved with this order, petitioners preferred Land Ceiling Appeal No. 9/91/9/97-98 before the Additional Collector, Gopalganj. Petitioners' case before the D.C.L.R. as well as appellate authority was that the land had been purchased for constructing a house. The nature of the land has been given in the khatian as 'Goenda' land which is supposed to be a homestead land. Further it was their case that they are fully covered within the definition of landless persons as given under Section 27(4) of the 'Act'. They possessed land less than 1 acre, as such they are landless persons and application under Section 16(3) of the 'Act' was not maintainable. So far the pre-emptor's claim of being adjacent raiyat of the vended plot is concerned, the case of the petitioners was that in the sale deed erroneously in the boundary name of respondent No. 7 has been given. Though this stand was taken by the transferees/petitioners but there is no averment, whether any correction in that boundary was made or not. The D.C.L.R. allowed the pre-emption application without considering these facts. Appeal was preferred and the appellate authority directed the Circle Officer to conduct an enquiry with regard to the character of the land. The report submitted by the Circle Officer dated 8.2.1999 (Annexure-4) revealed that the land has been recorded in the khatian as 'Goenda' not as 'dihbasgit land' or 'homestead land', but in the vicinity of the land there are houses of different persons. Mustard crops were grown or portion of the land; but land can be utilised for residential purposes. On consideration of the report of C.O. (A- 4) and other materials on record the Additional Collector by order dated 16.9.1999 allowed the appeal with a finding that since the land is 'homestead', pre-emption application is not maintainable. Further he held that transferee being a landless persons, having less than one acre of land, application for pre-emption is not maintainable. Respondent No. 7 preferred Revision Case No. 183 of 1999 against this order before Board of Revenue. The Additional Member of Board of Revenue by order dated 22.2.2001 has allowed the claim of pre-emption of respondent No. 7. Relying on the report of the Circle Officer, it was held that the land being an agricultural land application for pre-emption is maintainable. Further it was decided that transferees are not landless persons as their grand-father was a recorded tenant of plot Nos. 65, 561 and 99 measuring 6 bighas 19 kathas 33 dhoors in Mouza Santpur. He also possessed homestead land of plot Nos. 361, 369 and 803. Since the transferees are not landless persons and vended land is agricultural land, pre-emption application is maintainable. He allowed the pre-emption application of the pre-emptor.

(3.) In para 7 of the writ application a genealogical table of the petitioner's family has been given to show that Bigu Mahto and Prasad Mahto were the grand-fathers of the petitioners. The land was recorded in the name of Ram Narayan Mahto, Great Grand-father of the petitioners. Even if it is accepted that Ram Narayan Mahto was recorded tenant of 6 bighas 19 kathas 33 dhoors of land, considering the genealogical table, petitioners will get less than 1 acre of land after partition in the family. Since the petitioners possessed less than one acre land, they come within the definition of landless persons, under the provisions of Sub-section (4) of Section 27 of the Act. Sub-section (4) of Section 27 relates to the distribution of surplus land among the persons who are landless, a member of Scheduled Caste and Scheduled Tribe and others. A landless person has been defined as a person possessing less than one acre land. Relying on this definition it has been submitted by the petitioners that they are landless persons, having less than one acre land. The pre-emption application is not maintainable if the transferee is landless. Regarding the nature of the land also they have placed reliance on the report submitted by the Circle Officer wherein it has been stated that in the vicinity of the vended land there are several houses and it can be utilised for residential purposes.