DUKHO DEVI Vs. UCHIT LALL MANDAL

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution to quash the orders of (1) the Collector of Purnea (Annexure D) dated 4-3-1965 (2) the appellate order of the Commissioner of Bhagalpur (Annexure B) dated 19-7-1965 and (3) the order of the Member Board of Revenue (Annexure E) dated the 22nd September, 1965 In a proceeding under Section 16 (3) of the Bihar Land Reforms (Fixation of ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act 12 of 1962) (hereinafter referred to as the Act). The petitioner claims to be a raiyat of current settlement plot No. 262 (old settlement plot No. 232) in village Simaria Ruchdeo in the district of Purnea. On 5-5-1964 he purchased from one Dhanpat for a sum of Rs. 500 two plots namely, new survey plots 877 and 259. The corresponding old settlement plot for the aforesaid two plots is 204. Opposite party No. 1 claims to be a raiyat of new survey plot No. 260 corresponding to old survey plot 281 which is alleged to be adjacent to the said purchased plots. Soon after the purchase, opposite party No. 1 applied to the Collector under Section 16 (8) (1) of the said Act for transfer to him of the land purchased by the petitioner on the grounds men-Honed in that section. The Collector admitted the application and when the petitioner objected on the ground that he was also an adjacent owner, the Collector held that the new plot 262 on which the petitioner was the owner cannot be considered to be "adjoining land" as it has no common boundary with the land purchased on appeal, however, the Commissioner slightly reversed this finding of fact. He observed; "As far as plot No. 262 is concerned, one corner of it touches a corner of plot No. 259". Thus, the Commissioner seems to have held that the petitioner was also a raiyat of adjoining land". Though his plot merely touched the purchased land, whereas the plot of opposite party No. 1 was more adjacent to the purchased land than plot 262. He however, did not examine the further question whether when two raiyats have lands both of which are adjoining to the purchased land, a proceeding under Section 16 (3) (1) will lie. The member, Board of Revenue, while agreeing with the Commissioner that the petitioner's plot also touches a corner of the purchased land nevertheless observed that the petitioner could not be treated as an adjoining raiyat.

(2.) The main ground urged by Mr. Karuna Nidhan Keshava for the petitioner is that the Act does not contain any provision authorising the appropriate authority to determine the degree of adjacency for the purpose of Section 16 (3) (1) of the Act, According to him therefore, if there are two persons whose lands are adjacent to the purchased land, both of them should be held to be owners of the "adjoining land' for the purpose of Section 16(3)(i) and the Collector has no jurisdiction to hold that the person who has got ft larger extent of common boundary with the purchased land alone should be deemed to be the owner of an adjoining land". This argument appears to be correct. Section 16 (3) (i) merely says that where transfer of land is made to a person other than (1) a cosharer, or (2) a raiyat, of an adjoining land, any cosharer of the transferor or any raiyat of the adjoining land may apply under that section claiming the right of pre-emption. But if the transferee is one of the raiyats of an adjoining land, no right of pre-emption would be available to another raiyat of an adjoining land merely because the common boundary is larger in his case than that of the former. The Act does not contain any provision authorising the Revenue Officer to determine the degree of adjacency for the purpose of recognising the right of pre-emption. Hence once the commissioner and the Board agree that a portion of the petitioner's plot 262 touches a corner of the purchased land no right of pre-emption can be claimed against the petitioner, because he becomes "a raiyat of the adjoining land" for the purpose of Clause (1) of Sub-section (3) of Section 16 of that Act.

(3.) It was then contended that in the current survey the purchased land has been shown in two plots, namely plots 877 and 259 and plot No. 259 alone was held to be adjacent to the petitioner's raiyats land recorded in the current settlement as plot No. 262. Survey plot No. 877 on the other hand, does not touch plot No. 262 anywhere but on the contrary, it is adjacent to opposite party's plot No. 260. An attempt was, therefore, made to split up the two plots of the purchased land and to show that the opposite party's claim for pre-emption must be upheld so far as plot No. 877 is concerned. This argument though ingenious, will not be available at this stage in a writ petition. The purchased land was always treated as one piece of land. In the old survey it was re-corded as one plot No. 204. It is true that it was split up into two separate plots in the current survey, but for the purpose of applying the Act it is not the survey plot that matters but the piece of "land" as defined in Clause (f) of Section 2 of the Act, which does not refer to any survey plot number at all. The litigation appears to have been fought out in the lower courts on the assumption that the purchased land was one piece of land, though it may consist of two survey plots. There was only one transaction of sale in respect of both the plots and one sale deed was taken. At this stage of the litigation we cannot permit the opposite party to split up the land for the purpose of claiming the right of pre-emption. For the aforesaid reasons, therefore, we must hold that as the petitioner-purchaser was also the raiyat of an adjoining land, the Collector had no jurisdiction to apply the provisions of Section 16(3)(1) of the Act. Several constitutional questions were raised but we do not think it necessary to discuss them in view of the success of the petitioner on the question of jurisdiction.