ALTAMAS KABIR AND R.K.MERATHIA JJ. - (1.) THIS appeal is directed against the judgment and order of the learned Single Judge dated 13th May, 2005, dismissing the appellant 'swrit application being W.P. (C) No. 2233 of 2005, rejecting the appellant 'schallenge, to the order passed in favour of the respondents under Sec.16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land), Act, 1961 (hereinafter to be referred to as "the aforesaid Act").
(2.) THERE is no dispute that the plot involved in Survey Plot No. 1665 appertaining to Khata No. 41 Measuring 60 decimals situated at Village jhopra in the district of Bokaro and that the same was previously recorded in the name of Shri Ram Pati Das (Sarkar) and Shankar Das. It is also not disputed that Ram Pati Das sold 30 decimals of land located in the plot to respondents No. 2 and (respondents No. 4 and 5 herein) by a registered sale deed dated 5th February, 1988 and that, subsequently, Ram Pati Das and Shankar Das sold the remaining 30 decimals of the same plot to the appellant by a registered sale deed dated 4th February, 2003. The respondents No. 4 and 5 thereupon filed an application for pre -emption of the second sale under the provisions of Sec.16 (3) of the aforesaid Act. The application for pre -emption was considered by the Land Reforms Deputy Collector (hereinafter referred to as "the L.R.D.C.") who, after spot verification, dismissed the claim of the respondents for pre -emption in L.C. Case No. 8 of 2003. The L.R.D.C. was of the view that the land in question is a homestead land surrounded by houses and roads and that the land was lying fallow and was not being used for the purpose of agriculture. 3 An appeal against the order of the L.R.D.C. was filed by respondents No. 4 and 5 herein under Sec.30 of the aforesaid Act. The said appeal being L.C. Appeal No. 3 of 2003 was allowed by the Additional Collector on his finding that merely because the land was lying fallow would not take the said land out of the definition of 'land ' under Sec.2(f) of the aforesaid Act. The Additional Collector also came to a finding that the land was neither within the Municipal Area nor within the Notified Area, but was within a village and it could not be said that merely because the land was not being used for growing crops, it was not used of the purpose of agriculture as indicated in the definition of 'land ' under Sec.2{f) of the aforesaid Act.
(3.) AGGRIEVED by the decision of the Additional Collector, Bokaro, the appellant herein preferred a revision before the Board of Revenue under Sec.32 of the aforesaid Act and the same was registered as Bokaro L.C. Revision No. 47 of 2003. The Member Board of Revenue endorsed the view taken by the Additional Collector upon considering that there was no dispute that the pre -emptees were adjacent raiyat to the disputed plot and that the same is recorded as Bastu Bari in the record of rights. Observing that on spot inspection, the L.R.D.C. had found that the land was used to grow Maize but was no lying fallow, the Member Board of Revenue was of the view that the L.R.D.C. had erred in holding that the land was used particularly for homestead purposes and would not fall within the provisions of Sec.16(3) of the aforesaid Act.;