NARENDRA NATH TIWARI, J. - (1.) IN this writ petition, petitioner has prayed for quashing the order dated 19.01.2006 passed by the Member, Board of Revenue in revision, setting aside the order of the Appellate Court and rejecting the claim of preemption of the petitioners made under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as 'the said Act') The appellate order has been set aside on the ground that the purchaser of the land has got adjoining land and a corner of the land touches the vended land. The petitioners have assailed the order of the Member, Board of Revenue on the ground that larger area of the petitioners' land adjoins the vended land whereas only a small portion of the land of the purchaser -respondent Nos. 8 and 9 is adjacent to the vended land and comparatively, the petitioners have got better right of preemption.
(2.) LEARNED Counsel for the petitioners submitted that the Appellate Court has properly considered the petitioners' case and had rightly allowed the claim of preemption which has been erroneously set aside by the revisional authority. Learned Counsel submitted that in view of the controversy the Court below should have appointed a Commissioner for the purpose of verifying the adjacency and having not done so, the impugned order of the learned Member, Board of Revenue is bad in law Learned Counsel relied on a decision of the Division Bench of the Patna High Court in Moghal Singh and Ors. v. Member, Board of Revenue and Ors. reported in 1981 BLJ 91 wherein it has been held thus: The authority holding the inquiry shall hold it on spot in order to ascertain as to whether (i) the preemptors are the adjoining raiyats of plot No. 25 (the plot on which right of pre -emption was claimed), and (ii) the petitioners were adjoining raiyats before the purchase made by them. While holding such inquiry the authority shall not go into the question of title between the parties. In my view the said submission of the learned Counsel has no relevance in the instant case. The provision of Section 16(3) of the said Act does not speak about the degree of adjacency for the purpose of consideration of a right of preemption. Section 16(3) of the said Act runs as follows: 16(3) (i) 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 the 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 percent thereof in 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 land and possession thereof shall be restored to the transferor and the transferee shall be entitled to be paid a sum equal to ten percent 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 21, Rule 34 of the Code of Civil Procedure, 1908 (V of 1908), shall be so far as may be, followed.
(3.) FROM bare reading of the said provision, it is clear that there is nothing in the said provision which gives the raiyat, having larger adjoining area, a preferential right of preemption over the purchaser, who has got smaller adjoining area of land. In view of the said provision, even if a corner of the purchaser (as has been held by the learned Lower Appellate Court) touches the transferred land, neither the raiyat having more adjacent area nor a co -sharer can claim right of preemption. Since the Appellate Court has observed in its order that a corner of the purchaser -respondent Nos. 8 and 9 touches the transferred land and the same has not been challenged by the petitioner, there was no question of holding any further inquiry to decide as to whether the purchaser was an adjacent raiyat or not. The decision of Moghal Singh and Ors. (supra) was rendered on a different facts and circumstances and the same has got no application to the facts of this case.;