SHANTI DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioners are the purchasers who have filed this application for quashing the order dated 4.3.2002, passed by the Additional Member Board of Revenue, Bihar, Patna (Annexure-5) passed in Rev. Case No. 232 of 2001 and the order dated 30.10.2001, passed by the Additional Collector, Saran at Chapra in Land Ceiling Appeal No. 17 of 2001 (Annexure-4) as well as the order dated. 2.5.2001, passed by the Deputy Collector, Land Reforms (Ceiling) in Morhorah Saran in Land Ceiling Case No. 23 of 2000-2001 (Annexure-3) whereby the pre-emption application filed by respondent No. 5 under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act has been allowed. Petitioners have claimed to be the benami purchasers of their husband who according to the petitioners themselves are the adjoining raiyat of the vended land i.e. Plot No. 482 measuring 1 katha situated in village Rahimpur in the district of Saran.

(2.) The land under dispute was purchased in the name of the petitioners through registered sale deed dated 23.11.2000, executed by respondent No. 6 Vijay Kishore Upadhayaya for a consideration of Rs. 19000/-. Respondent No. 5 filed an application for pre-emption which was registered as Case No. 23 of 2000-01. The pre-emptor respondent No. 5 claimed to be the adjacent raiyat of the vended land as he possessed Plot No. 482 measuring 12 dhurs situated adjacent southern boundary of the vended land. Petitioners after receiving notice of the case appeared and filed their rejoinder stating that the pre-emptor is not the boundary tenant. By mistake in the sale deed in the southern boundary his name has been mentioned as such pre-emption application at his instance is not maintainable. Further it was stated by the petitioners that their husband are necessary party as the petitioners are only the name lenders. Actually the lands have been purchased by their husband who themselves are the boundary tenant of the vended land and on this account also the pre-emption application was not maintainable. Third objection raised by the petitioners was that the lands which has been purchased through the sale deed is the homestead land and which is not covered by the definition of the land given under Section 2 (f) of the Act for filing a pre-emption application. The vended land must be the land which is used or capable of being used for agriculture or horticulture and includes lands which is an orchard, Kharhur or pasturage of forest land or also the land perennially submerged under water or the homestead of a land- holder. Homestead means a dwelling house for the purpose of living or for the purpose of letting out on rent together with any courtyard, compound, attached garden, orchard and out building and includes any out building for the purpose connected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house. Under Section 16 (3) of the Act only against those homestead lands application for pre-emption can be filed, which are connected with the agriculture purpose of the land holder, objection of the petitioners was that they are not the land holders, they are simply the "benamidar" of ostensible purchasers and also that the land is the homestead not connected with the agriculture purpose as such it is not the land under Section 2 (f) of the Ceiling Act. In this circumstances the pre-emption application should not have been entertained by the D.C.L.R. but it was allowed and subsequently by the appellate authority and the revisional authority. The objection of the petitioners was rejected.

(3.) The petitioners have challenged the impugned orders on the ground that the D.C.L.R. without appreciating the issues involved has allowed the pre-emption application by his order dated 2.5.2001. The appellate authority also failed to give any finding on this issue that the petitioners are ostensible owners. The Member Board of Revenue failed to consider the facts as well as law involved in this case.