Sipahi Chaubey v. The State of Bihar & Ors.

Heard Sri Rajendra Narayan, learned Senior Counsel, who was assisted by Sri Surendra Kumar Choubey, learned counsel for the petitioners, learned A.C. to Govt. Pleader no.15 and Sri Jitendra Prasad Singh, learned counsel, who has appeared on behalf of Respondent nos. 5 and 6 / purchasers of the land. Petitioners claiming pre-emptor have approached this Court with a prayer to quash an order dated 07.02.2006 passed by Respondent no.2/ Addl. Member Board of Revenue , Bihar,Patna in Case 2 Patna High Court CWJC No.7504 of 2006 (7) dt.08-04-2013 No.283 of 2002, whereby the learned Addl. Member Board of Revenue , while allowing the case of the purchasers ( Respondent nos. 5 and 6 herein) has quashed the order dated 11.07.2000 passed by the learned D.C.L.R. , Sasaram in Case No.8/99-2000 and order dated 23.10.2012 passed by the Addl. Collector, Rohtas in Appeal no.19/2000-01. Sri Rajendra Narayan, learned Senior Counsel submits that learned D.C.L.R. after finding that the petitioners were boundary raiyat had allowed the pre-emption by assigning detailed reason, which was affirmed by the Addl. Collector in appeal in its order dated 23.10.2002. He submits that though there was no error in both the orders, the Addl. Member Board of Revenue in a cryptic manner as well as accepting new plea of the purchasers has allowed the case in favour of the purchasers. He submits that the order of the learned Addl. Member Board of Revenue is fit to be rejected. He submits that before the revisional court, a new plea was taken by the purchasers that the land was Firni and homestead, whereas in the court below no such plea was taken. Sri Jitendra Prasad Singh, learned counsel for the purchasers/ Respondent nos.5 and 6 has vehemently opposed the prayer of the petitioners. At the very outset, it was submitted that the land in question, which was only 1 Katha 10 dhurs, was 3 Patna High Court CWJC No.7504 of 2006 (7) dt.08-04-2013 purchased by the Respondents/ purchasers only and only for the purposes of construction of their houses. He further submits that the purchasers were landless persons and, as such, in respect of the said purchase, Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act,1961 (hereinafter referred to as the “Land Ceiling Act”) was not applicable. In reply, Sri Rajendra Narayan, learned Senior Counsel has argued that it hardly matter whether it was a big chank of land or small piece of land. Once the Statute provides a right under Section 16(3) of the Land Ceiling Act for claiming pre-emption, in absence of any contrary finding, pre-emption is required to be allowed. In support of his argument, he has heavily relied on Apex Court Judgment reported in (1997)1 SCC 733; Sheoji Mahto Vs. Addl. Member Board of Revenu and others. He submits that in the said case only one Katha of land was involved, even then the Apex Court had allowed the claim of pre-emption and, as such, the present case is on better footing than the case of Sheoji Mahto (supra). Besides hearing the parties, I have also perused the materials available on record. Fact remains that before the court below, a specific plea was taken that Respondent nos. 5 and 6/ 4 Patna High Court CWJC No.7504 of 2006 (7) dt.08-04-2013 purchasers were landless persons and moreover the object for purchasing the land was for construction of their houses. This plea is apparent from the order of the appellate authority i.e. order dated 23.10.2002. Besides this, in the present case, a small piece of land measuring an area of 1 Katha 10 dhurs is involved. The learned Addl. Member Board of Revenue has also noticed that the dispute was in respect of Firni and homestead land. Besides this, the object for purchasing the land, from the pleadings, appears to be for construction of the house. Time without number it has been held that the right of pre-emption is a weak right , which has been noticed long back by five Judges Bench of the Apex Court in AIR 1958 SC 838 :Bishan Singh & Ors. Vs. Khazan Singh & Anr.and it was reiterated in AIR1960 SC 1368 ( Radhakishan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi and Ors ). It would be appropriate to mention that the Apex Court in Radha Kishan’s Case, particularly in paragraph-13, has recorded that “there are no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by Statute”. The Court is of the opinion that since a plea was taken that the purchasers were landless persons and also the object for the purchase of land was to construct their houses, it can be considered that the right of petitioner- pre-emptor was defeated by 5 Patna High Court CWJC No.7504 of 2006 (7) dt.08-04-2013 legitimate ground. After perusing the impugned order i.e. order dated 07.02.2006 passed in Case No.283 of 2002 by the Addl. Member Board of Revenue , the Court is of the opinion that it is not a fit case for granting equity in favour of the petitioners/pre- emptor, but equity lies with the purchasers and, as such, there is no ground for interference. The writ petition stands dismissed. NKS/- (Rakesh Kumar, J)