Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 5355 of 2006 1. Nunulal Mahato 2. Gulu Mahato 3. Govind Mahato ….. Petitioners Versus 1. The State of Jharkhand 2. Jharilal Mahato 3. Shyamlal Mahato ….. Respondents ----- CORAM HON’BLE MR. JUSTICE RAJESH SHANKAR ----- For the Petitioners: Mr. Nagmani Tiwari For the Respondent Nos. 2 & 3: Mr. Sanjay Prasad For the State: Mr. J.
F. Toppo, S.C (L & C) ----- 05/10.07.2017 Heard learned counsels for the parties.
2. In the present writ petition, the petitioners have prayed for quashing the order dated 17.07.2006 passed by the Member, Board of Revenue, Jharkhand in Pre-emption Revision Case No. 10/2005 whereby, the revision petition filed by the petitioners has been dismissed.
3. The factual matrix of the case is that the petitioners had purchased 12 Decimals of land out of total area of 39 Decimals appertaining to Plot No. 384, Khata No. 18 of Village-Garge, P.S- Govindpur, District-Dhanbad from Bigu Mahato, son of Rupan Mahato by registered sale deed being Sale deed No. 5552 dated 16.11.2001. The respondent Nos. 2 and 3 filed an application under Section 16(3) (i) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 [hereinafter to be referred to as ‘the said Act’] before the Land Reforms Deputy Collector on the ground that the petitioners were neither the co-sharers of the vendor nor an adjoining raiyat of the vended land and the respondent Nos. 2 & 3 were the adjoining raiyats and as such the said land should be transferred to them under the provisions of the said Act. Notices were issued to the petitioners by the Land Reforms Deputy Collector, Dhanbad on the said application and meanwhile, the respondent Nos. 2 and 3 filed a 2 petition before the Land Reforms Deputy Collector, Dhanbad on 06.05.2002 to the effect that the vendee/petitioners have undertaken constructions of a building on the disputed land in order to change the nature of the land and they should be directed to stop construction. The Land Reforms Deputy Collector, Dhanbad issued order directing the petitioners to cease construction. Thereafter, the Land Reforms Deputy Collector personally conducted spot enquiry on 20.12.2002 and in course of said enquiry, he came to the conclusion that the construction activities were commenced by the petitioners 5 to 6 months ago from the date of spot verification. Thereafter, the petitioners appeared in the case and contested it on the ground that there is no specific provision in the said Act for restraining the purchasers from making any construction over the said land in normal course when the persons have purchased any land for the purpose of constructing house. It was also stated by the petitioners therein that there is no provision in the said Act that if the land was agricultural land at the time of purchase, subsequently, it cannot be converted into a land for residential purposes, if the situation permitted. After hearing both the parties, the Land Reforms Deputy Collector, Dhanbad considering the aforesaid facts, allowed the case vide order dated 08.04.2003. Aggrieved by the order of the Land Reforms Deputy Collector, Dhanbad, the petitioners preferred an appeal before the Additional Collector, Dhanbad being L.C. Appeal No. 5/03-04 and the said Court after hearing the parties, dismissed the appeal vide order dated 13.01.2005. Thereafter, the petitioners preferred revision bearing Case No. 10/05 before the Court of the Member, Board of Revenue, Jharkhand and the learned Member also dismissed the revision case vide order dated 17.07.2006.
4. The main submission of learned counsel for the petitioners is that the nature of the land had already been changed by way of 3 making construction over the same and therefore there would be no application of Section 16(3) of the said Act. It is also submitted that since the petitioners have been using the land in question as their dwelling place, the impugned order of the learned Member, Board of Revenue, Jharkhand being erroneous, may be set aside.
5. Learned counsel appearing on behalf of the respondent Nos. 2 & 3 submits that there being concurrent findings recorded against the petitioners by the Land Reforms Deputy Collector, Dhanbad, Additional Collector, Dhanbad and the Member, Board of Revenue, Jharkhand, it is well established that the petitioners have no case in law as well as on facts. All three Courts below have considered the rival claims of the parties and thereafter they recorded their findings against the petitioners. The said authorities have also held that the application filed by the respondent Nos. 2 & 3 under Section 16(3)(i) of the said Act claiming right of pre-emption over the land in question is lawful. In support of his said submission, learned counsel for the respondent Nos. 2 & 3 puts reliance on a judgment rendered by this Court in the case of Md. Jasmuddin Ansari Vs. The State of Jharkhand & Ors. reported in 2009 (3) JLJR533 It is lastly submitted that considering the aforesaid aspects, the impugned order dated 17.07.2006 passed by the learned Member, Board of Revenue does not warrant any interference by this Court.
6. Having heard learned counsels for the parties and after going through the relevant documents placed on record, it appears that the respondent Nos. 2 & 3 filed an application under Section 16(3)(i) of the said Act before the Land Reforms Deputy Collector, Dhanbad on 02.02.200, on which notice was issued to the petitioners vide order dated 18.02.2002. Thereafter, on 18.03.2002, the petitioners appeared before the Land Reforms Deputy Collector and prayed for time for filing the show cause reply. Subsequently, on 06.05.2002, the 4 respondent Nos. 2 & 3 filed a petition before the Land Reforms Deputy Collector to the effect that the petitioners have undertaken the construction of a building over the said land. To ascertain the true facts, an enquiry was conducted by the Land Reforms Deputy Collector on 20.12.2002 and on such enquiry, he came to the conclusion that the construction activities were commenced by the petitioners 5 to 6 months before the date of spot verification.
7. The learned Member, Board of Revenue has considered the aspect as to whether the petitioners by virtue of changing the nature of the land can claim the non-applicability of Section 16(3)(i) of the said Act. It has been observed by the learned Member, Board of Revenue that if the petitioners had constructed the house before the application was filed by the respondent Nos. 2 & 3 under Section 16(3) (i) of the said Act, they would have supported the said fact in their claim. It has also been observed in the impugned order that after filing of the pre-emption application, the respondent Nos. 2 & 3 also filed a petition before the Land Reforms Deputy Collector for restraining the petitioners from raising construction over the land, pending final disposal of the case. Subsequently, on two occasions, the respondent Nos. 2 & 3 informed the Land Reforms Deputy Collector that the petitioners were trying to change the nature of the land by constructing a house. The Land Reforms Deputy Collector also ordered the petitioners to cease construction, but in spite of that, the petitioners completed the construction.
8. Thus, under the said facts, in my opinion, the petitioners cannot claim that the nature of the land has been changed. Otherwise also, the said construction over the land in question is over 2 Decimals out of 12 Decimals of land and the rest of the land has been used for agricultural purposes. Thus, about 90% of the disputed land has been used for agricultural purposes. Under the said factual background, the 5 learned Member, Board of Revenue has rightly observed that the land in question still falls under the purview of the land, as defined under Section 2(f) of the said Act. It has also been observed by the learned Member, Board of Revenue that the petitioners were not residing in the house constructed over the land in question, rather they were living in other house in the village, which was found by the Land Reforms Deputy Collector in course of spot verification. In the case of Md. Jasmuddin Ansari Vs. The State of Jharkhand & Ors. (Supra), this Court while considering the concurrent findings of the Courts below relating to similar issue, has held that challenging the concurrent findings of the Courts below purely on facts, is not capable of interference in the writ jurisdiction.
9. Considering the facts and circumstances of the case, I find no reason to interfere with the impugned order dated 17.07.2006 passed by the Member, Board of Revenue, Jharkhand in Pre-emption Revision Case No. 10/2005. The writ petition being devoid of merit, is, accordingly, dismissed. (RAJESH SHANKAR, J) High Court of Jharkhand, Ranchi Dated 10.07.2017 Satish/A.F.R