- (1.) This appeal has been filed for setting aside the judgment of the High court, dismissing the application under Section 16 (3 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (12 of 1962 (hereinafter referred to as 'the Act') filed on behalf of the appellants, claiming retransfer of the lands which had been transferred by Respondent 5 in favour of Respondent 7 through the registered sale deed dated 30/12/1969. Respondent 7 by the aforesaid sale deed purchased 5 kathas of land of Survey Plot No. 610 and 6 kathas 10 dhurs of land of Survey Plot No. 614 fromrespondent 5 for a consideration amount of Rs. 4,600. 00. The purchase had been made for construction of a house in Mohalla Sahjadpur Aderkila within the town a of Hajipur.
(2.) An application under Ss. (3 of Section 16 of the Act was filed on behalf of the appellants before the Deputy Collector, Land Reforms, for a direction that Respondent 7, the transferee be directed to convey the lands purchased by him by executing and registering a deed of transfer in favour of the appellants in terms of the said Ss. (3 of Section 16. That application was dismissed by the Deputy Collector, Land Reforms, on the ground that the lands which had been transferred shall not be deemed to be the lands within the meaning of the Act, as such the provisions thereof shall not be applicable. However, an appeal being filed on behalf of the appellants, was allowed by the Collector. The member, Board of Revenue, dismissed the revision application, filed on behalf of Respondent 7. Thereafter, a writ petition was filed on behalf of Respondent 7, for quashing the orders passed by the Collector and the member, Board of Revenue before the High court. The High court by the impugned judgment quashed the orders passed by the Collector and the member. Board of Revenue, on a finding that as the lands which had been transferred were within the town of Hajipur and were urban in nature, the provisions of the Act shall not be applicable including Ss. (3 of Section 16 thereof. This finding of the High court is being questioned in this appeal.
(3.) The preamble of the Act says that it is an Act to provide for fixation of ceiling, restriction on sub-letting and resumption by certain raiyats, for personal cultivation of land, acquisition of status of raiyat by certain under-raiyats and acquisition of surplus land by the State in the State of Bihar and matters connected therewith. Section 2 (j) defines land: "2.(F) land' means land which is used or capable of being used for agriculture or horticulture and includes land which is an orchard, kharhur or pasturage (or forest land or even land perennially submerged under water) or the homestead of a landholder; Explanation 1.-'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 outbuilding and includes any outbuilding for the purpose connected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house. Explanation II.-Land perennially submerged under water shall not include land submerged in the bed of a river. "section 2 (g) defines landholder': "2.(G) landholder' means a family as defined in clause (ee) holding land as raiyat or as under-raiyat or a mortgagee of land in possession or holding land permanently settled by government or lessee of land not resumable by government. "on a plain reading of the definition of land it means land which is used or capable of being used for agriculture or horticulture or for the homestead of a landholder. Explanation I specifies what is meant by homestead which shall include dwelling house for the purpose of living or for the purpose of letting outon rent together with courtyard, compound, attached garden, orchard and includes any outbuilding for the purpose connected with agriculture or horticulture. Section 4 prescribes the ceiling area of the land which a landholder can hold under the provisions of the Act. The other provisions relate to fixation of such ceiling and declaration of the surplus land which shall vest in the State. Ss. (1 of Section 16 provides that no person shall, after the commencement of the Act, either by himself or through any other person, acquire or possess by transfer, exchange, lease, mortgage, agreement or settlement any land which together with the land, if any, already held by him exceeds in the aggregate the ceiling area. Ss. (3 of Section 16 provides: "16.3 (1 When any transfer of land is made after the commencement of this Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document of transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed: Provided that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten per cent thereof is deposited in the prescribed manner within the said period. (ii) On such deposit being made the co-sharer or the raiyat shall be entitled to be put in possession of the land irrespective of the fact that the application under clause (i) is pending for decision: Provided that where the application is rejected, the co-sharer or the raiyat, as the case may be, shall be evicted from the land and possession thereof shall be restored to the transferee and the transferee shall be entitled to be paid a sum equal to ten per cent of the purchase money out of the deposit made under clause (i). (iii) If the application is allowed, the Collector shall by an order, direct the transferee to convey the land in favour of the applicant by executing and registering a document of transfer within a period to be specified in the order and, if he neglects or refuses to comply with the direction, the procedure prescribed in Order XXI, Rule 34 of the Code of Civil Procedure, 1908, (V of 1908, shall be, so far as may be, followed. "in view of Ss. (3 of Section 16, whenever any transfer of land is made to any person other than the co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled within the period prescribed therein to make an application before the Collector for the transfer of the land to him on the terms and conditions contained in the said deed. He has to comply with the other requirements of the said section by way of deposit of purchase money along with a sum equal to 10% thereof.;