Ramjee Singh S/O Late Mallu Singh vs The State of Bihar

This petition under Article 226 of the Constitution of

India has been preferred on behalf of the petitioner, namely, Ramjee

Singh for quashing the order dated 07.08.2008 passed by learned

Member, Board of Revenue, Bihar, Patna in Board of Revenue

Revision Case No. 80 of 2006 by which and whereunder he affirmed

the order dated 30.03.2006 passed by Additional Collector, Kaimur at

Bhabua in Mutation Appeal No. 21 of 2004-05/ 28 of 2005-06 and

also for quashing the above stated order dated 30.03.2006 passed by

Additional Collector, Kaimur at Bhabua in above stated Mutation

Appeal No. 21 of 2004-05/ 28 of 2005-06 by which and whereunder

he set aside the order dated 06.12.2004 passed by the D.C.L.R.

Mohania in Preemption Case No. 03 of 2003-04 and also for holding

the order dated 06.12.2004 passed by D.C.L.R. Mohania in

Preemption Case No. 03 of 2003-04 as valid and legal.

The brief facts of the present case are that respondent

no. 6 filed a petition 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") before the D.C.L.R. Mohania

claiming his preemptory right over 63 decimal of land of survey khata

no. 8/chak khata no. 30, survey plot no. 442/chak plot no. 222 of

Mauza Lakha Pati District Kaimur on the ground of being adjoining

raiyat. The respondent no. 6 deposited the required amount and

completed all formalities as prescribed in the law before filing the

aforesaid petition. The aforesaid petition filed under Section 16(3) of

the Act was rejected by the D.C.L.R. vide order dated 06.12.2004

passed in Preemption Case No. 03 of 2003-04. The aforesaid order of

D.C.L.R. was challenged by respondent no. 6 before Additional

Collector, Kaimur who, in his turn, set aside the order of D.C.L.R. in

Preemption Appeal No. 21 of 2004-05/ 28 of 2005-06 passing

impugned order dated 30.03.2006 which was challenged by the

petitioner before the Board of Revenue but the learned Additional

Member, Board of Revenue by impugned order dated 07.08.2008

affirmed the order of learned Additional Collector in Revision Case

No. 80 of 2006.

It is undisputed fact that petitioner purchased the

disputed land measuring an area of 63 decimal by registered sale deed

dated 24.11.2003 from respondent no. 7. It is also an undisputed fact

that total area of disputed plot was 1.14 acre and out of the aforesaid

total area, 63 decimal land was only purchased by the petitioner vide

registered sale deed dated 24.11.2003 and the remaining area of

aforesaid plot was purchased by respondent no. 6 and two others vide

registered sale deed dated 15.07.2002 from respondent no. 7 prior to

purchase of petitioner. The claim of respondent no. 6 is that he being

adjoining raiyat is entitled to seek right of preemption under Section

16(3) of the Act. However, the claim of the respondent no. 6 was

rejected by learned D.C.L.R., Mohania on the ground that respondent

no. 6 is not an adjoining raiyat of the disputed land and the nature of

disputed land was commercial and, therefore, Section 16(3) of the Act

was not applicable. The Additional Collector reversed the finding of

D.C.L.R. holding that respondent no. 6 is adjoining raiyat of the

disputed land and the nature of land was agricultural. The aforesaid

finding of Additional Collector was confirmed by the learned

Additional Member, Board of Revenue, Bihar, Patna.

Learned counsel appearing for the petitioner submitted

that admittedly, 51 decimal of chak plot no. 222 was jointly purchased

by respondent no. 6 and Raghubansh Singh as well as one other and

Raghubansh Singh is full brother of respondent no. 6 but except

respondent no. 6, rest two vendees have not made any claim under

Section 16(3) of the Act and, therefore, the petition filed by

respondent no. 6 under Section 16(3) of the Act was not maintainable

because the respondent no. 6 had no right to make claim alone under

Section 16(3) of the Act. He further submitted that the learned

Additional Collector as well as learned Additional Member, Board of

Revenue failed to take note of this fact that the nature of land had

already changed. He further submitted that learned Additional

Collector was duty bound to make enquiry before reversing the

finding of learned D.C.L.R. on the point of nature of the land but

neither learned Additional Collector nor learned Additional Member,

Board of Revenue took any pain to make any enquiry regarding the

nature of the disputed lands. He further submitted that now, it has

already been set at rest that no claim under Section 16(3) of the Act

can be entertained in respect of commercial lands and in the present

case, it is an admitted position that there was several commercial

activities in the vicinity of the disputed plot but both the courts below

i.e. learned Additional Collector as well as learned Additional

Member, Board of Revenue failed to take note of the aforesaid fact.

Continuing his submission, he submitted that petitioner claimed that

disputed land was leased out by the petitioner to his brother in law for

installation of petrol pump and, therefore, the aforesaid fact clearly

goes to show that lands in question was purchased by the petitioner

for commercial purposes but neither Additional Collector nor learned

Additional Member, Board of Revenue gave any finding on the

aforesaid fact.

On the other hand, learned counsel appearing for the

respondent no. 6 refuted the above stated submissions arguing that not

only learned Additional Collector but also learned Additional

Member, Board of Revenue considered and appreciated all pros and

cons of the present case and came to conclusion that respondent no. 6

is a boundary raiyat of the lands in question and has right to seek

remedy under Section 16(3) of the Act and furthermore, both the

above stated courts came to conclusion that the nature of the disputed

land was of agricultural land and, therefore, the concurrent findings of

both the courts below cannot be disturbed by this court while

exercising the writ jurisdiction. He further submitted that even if a

land is situated in a market area, then also, Section 16(3) of the Act is

applicable unless the land in question is used for commercial purpose.

He further submitted that nature of land can only be decided on the

basis of evidence adduced by the concerned parties. In support of his

contention, he referred the decision of Chandrika Sah vs. Additional

Member, Board of Revenue, Bihar, Patna and Ors . reported in

1981 PLJR 124 wherein at para-11 of the aforesaid decision his

Lordship held as follows:-

"Then remains for consideration the

second question as to whether the Act would apply to

the land in question which was situated in the Bazar

Area. There is no warrant for this proposition that

the provisions of the Act would have no application

to a land simply because it happens to be situated in

a Bazar area. It has been observed by several

decisions of this Court that the provisions apply even

to a land which happens to be situated within a

municipal area. Both the authorities, namely, the

Deputy Collector and the Additional Collector, on

the evidence adduced by the parties have clearly

held that the nature of the land was agricultural.

Nothing was shown to me that this finding, in any

way, was vitiated. The second point, therefore, also

has got no substance."

On the strength of aforesaid decision, learned counsel

for respondent no. 6 submitted that Khatiyan of disputed plot clearly

goes to show that nature of land was of agricultural land and the

nature of disputed land was not of commercial land. He also

submitted that right of preemption under the Ceiling Act is a creature

of statute and, therefore, the aforesaid right cannot be said a weak

right. In support of his contention, he referred the decision of Suresh

Prasad Singh vs. Dulhin Phulkumari Devi and Ors . reported in

2010(2) PLJR (SC) 167.

Having heard the contention of both the parties, I have

gone through the record as well as the impugned orders. It is an

admitted position that the respondent no. 7 executed registered sale

deed dated 15.07.2002 of some portion of the plot in question in

favour of respondent no. 6 and three other persons including

Raghubansh Singh who happens to be full brother of respondent no.

The photostat copy of the aforesaid sale deed has been brought on

record as Annexure-A to the counter affidavit. The aforesaid photostat

copy of registered sale deed dated 15.07.2002 goes to show that 51

decimal of area of chak plot no. 222 was transferred in favour of the

vendees and the aforesaid sale deed contains specific recitation to this

effect that out of above stated 51 decimal, 21 decimal land was

transferred to Raghubansh Singh and Chhedi Singh whereas 29

decimal of land was transferred to respondent no. 6 and his son. The

boundary of both the aforesaid transferred area was given separately.

In western boundary of 21 decimal of land transferred to Raghubansh

Singh and Chhedi Singh, there was remaining part of khesra no. 222

whereas in eastern boundary of 29 decimal of land transferred to

respondent no. 6 and his son, there was remaining part of plot no. 222.

So the aforesaid fact goes to show that even after transfer of area of

51 decimal of chak plot no. 222, the area of chak plot no. 222

remained in eastern as well as in western side of aforesaid transferred

area of 51 decimal. It is also an undisputed fact that petitioner got

executed registered sale deed dated 24.11.2003 in respect of 63

decimal of remaining land of chak plot no. 222 and in the sale deed

dated 24.11.2003, in eastern side of the purchased area, the plot of

Raghubansh Singh has been shown but the contents of sale deed dated

15.07.2002 contradicts the boundary given in sale deed dated

24.11.2003 because in sale deed dated 15.07.2002, in western side of

purchased plot of Raghubansh Singh the remaining area of khesra no.

222 has been shown whereas in eastern side of purchased area of

respondent no. 6, the remaining area of plot no. 222 has been shown

and, therefore, the aforesaid fact goes to show that land purchased by

the petitioner was situated between the lands of Raghubansh Singh

and respondent no. 6 and, therefore, the aforesaid fact clearly goes to

show that respondent no. 6 is boundary raiyat of purchased land of

petitioner. The learned Additional Collector as well as learned

Additional Member, Board of Revenue discussed and appreciated the

materials available on the record in respect of the aforesaid fact and

there is nothing on the record on the basis of which this court could

differ with the findings recorded by Additional Collector as well as

learned Additional Member, Board of Revenue, Bihar, Patna.

So far as nature of the land is concerned, admittedly, in

sale deeds of both the parties, the nature of land was recorded as

agricultural land and the documents produced before both the courts

below also reveal the same fact. However, the petitioner has claimed

that he purchased the land in question for commercial purposes but

unless any commercial activities is done either on the purchased land

or in the vicinity of the lands, it cannot be said that nature of land has

already been changed. Moreover, both the courts below have held that

nature of purchased land was agricultural land and, therefore, this

court does not think it fit to interfere into the findings recorded by

both the courts below in respect of above stated fact.

On the basis of aforesaid discussions, I do not find any

ground to interfere into the impugned orders and, accordingly, this

writ petition stands dismissed.