UMA DEVI Vs. RAKTOO THAKUR

JUDGEMENT

(1.) This application by Smt Uma Devi under Articles 226 and 227 of the Constitution of India is directed against the resolution dated the 23rd of October, 1972 (Annexure 7) passed by the Additional Member, Board of Revenue, respondent No, 5, directing the property purchased by the petitioner from Dwarika Mistry, respondent No, 2, to be pre-empted by Raktoo Thakur, respondent No. 1, under Section 16 (3) (i) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act).

(2.) In order to appreciate the points involved in this application it will be necessary to state briefly the facts mentioned in the petition of the petitioner and in the counter-affidavit (show cause filed on behalf of respondent No, 1). The petitioner is a resident of village Mathiapur, police station Dinapore, in the district of Patna and, according to the petitioner, the village is situated to the close south of Orderly Bazar of Dinapore Cantonment and is fast developing into an urban area, Village Mathiapar is under Revenue Thana No, 30, Police Station Dinapore, Pargana Phulwari, District Patna and is within the notified and controlled area of the Patna Improvement Trust from 1959 and is so notified in the Bihar Gazette, The ancestral house of the petitioner's husband is situate in cadestral Survey Plot No. 1846 in village Mathiapar and as there were difficulties of residence in the said house due to increase in the family members, the petitioner purchased 13 decimals of the western portion of the land contained under cadestral survey plot No, 1864 for building a house thereon by two registered sale deeds dated the 3rd of April, 1967 from respondent No. 2. Under one sale deed she purchased 6 decimals of land for Rs. 1,000 and under another sale deed she purchased 7 decimals for Rs. 1,000. She stated in her petition that the land contained under plot No. 1864 is a homestead land and is situated south-east of the ancestral house of the petitioner and is only intervened by a public lane. After the purchase of the lands in plot No. 1864 she constructed a brick built room and the same was being utilised for residential purpose by the petitioner and her family members. The petitioner's family members are raiyats of the village and are cultivators toy profession, only her husband is in military service To the west of the said public passage by the side of the lands of plot No, 1864 is gairmazrue malik land bearing plots Nos. 1-862 and 1847 and in these plots stood respectively the houses of one Ganesh Lal and his brother Mahesh Lal and one Gopi Thakur from before survey. A true copy of the Cadestral Survey Khatian of the said plots is marked as Annexure 1 to the application. The petitioner stated in her application that respondent No. 1 was originally not a resident of village Mathiapar but he acquired the said house in plot No. 1862 by a registered sale deed in 1963 and is residing therein and is also in possession of the house of Gopi Thakui on plot No, 1847 as Gopi Thakur died issueless and he was allowed to reside therein. It may be noted here that according to the case of respondent No. 1 as stated in his counter-affidavit, the house in plot No. 1862 was acquired by respondent No, 1 in 1965, whereas -as regards the house on plot No. 1847, according to respondent No. 1, after the death of Gopi Thakur he got it by survivorship as Gopi Thakur was the grandfather of respondent No. 1. The petitioner stated in her application that respondent No. 1 is a barber by caste and profession and he had not got any culturable land in the village and is not a raiyat within the meaning of the Act, Plot No, 1862 measures only 5 decimals whereas plot No. 1843 measures only .03 decimals, and the house of respondent No. 1 on those two plots are very small and both are apart and separated by a public lane and they are utilised for residence only and for doing the work of his profession. In other words, according to her, the purpose of those houses are non-agricultural and on those lands no tree of any kind exists. Respondent No, 1 filed a petition under Section 16 (3) (i) of the Act for pre-emption of the said lands of plot No. 1864 purchased by the petitioner from respondent No. 2 and the said application of respondent No. 1 was registered as Ceiling Case No. 5 of 1967-68 before the Subdivisional Officer, Dinapore, respondent No. 3, A copy of the said application of respondent No. 1 is marked as Annexure 2. On behalf of the petitioner an objection was filed before respondent No. 3. A copy of the objection petition is marked as Annexure 3 to the application. After hearing the parties, respondent No, 3, by order dated the 23rd October, 1967 (Annexure 4) allowed the application of respondent No. 1 and directed the petitioner to execute a Kobala in favour of respondent No, 1 by 30th of November, 1967. Aggrieved by the said order the petitioner preferred an appeal before the Additional Collector, Patna, who by his order dated the 3rd of October, 1969 (Annexure 5) allowed the appeal of the petitioner and set aside the order of respondent No.

(3.) Aggrieved by the order of the Additional Collector, respondent No, 1 filed revision before the Commissioner, Patna Division, respondent No, 4, who by his decision dated 25-11-1971 (Annexure 6) set aside the order of the Additional Collector and allowed the revision application filed by respondent No. 1, As against that the petitioner preferred revision before the Hon'ble Member, Board of Revenue, who by the impugned resolution was pleased to affirm the order passed by the Commissioner, respondent No. 4, 3. In this case, as mentioned earlier, on behalf of respondent No. 1 a counter-affidavit has been filed on the 5th of July, 1973, inter alia, supporting the impugned resolution by respondent No. 5. Thereafter on behalf of the petitioner a supplementary affidavit was filed, reiterating the statements made by the petitioner, on the 24th of February, 1975.