Case Background
The dispute concerns a very small piece of land in village Arga, P.S. Biraul, District Darbhanga. The land is recorded in Khata No. 370, old Plot Nos. 808 and 809 (new Plot Nos. 860 and 872), measuring 12 dhurs. Respondent nos. 5 and 6 purchased this land through a registered sale deed dated 24.05.2000 from respondent no. 7.
The petitioner, who owns land on the western boundary of this plot, filed a pre-emption application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. He claimed to be a boundary raiyat and asserted that the purchasers were not co-sharers of the vendor and that the land was agricultural.
The Deputy Collector Land Reforms, Biraul (DCLR) accepted the petitioner’s plea and allowed the pre-emption application by order dated 04.05.2001. Respondent nos. 5 and 6 then filed Appeal Case No. 3 of 2001-02 before the Additional Collector, Darbhanga.
By order dated 26.05.2003, the Additional Collector set aside the DCLR’s order. He held that the disputed land did not fall within the definition of “land” under Section 2(f) of the Act, and therefore Section 16(3) on pre-emption was not attracted.
The petitioner carried the matter in Revision Case No. 141 of 2003 before the Member, Board of Revenue, Patna. By order dated 21.02.2005, the Member, Board of Revenue upheld the Additional Collector’s view, again holding that the plot was not “land” as defined in Section 2(f) of the Act.
Aggrieved, the petitioner approached the Patna High Court under Article 226 of the Constitution in Civil Writ Jurisdiction Case No. 5590 of 2005, challenging both the Additional Collector’s and the Board of Revenue’s orders.
The writ petition was initially allowed by a co-ordinate Bench of the High Court on 14.03.2011, apparently in the absence of effective representation from respondent nos. 5 and 6. They filed a Letters Patent Appeal (L.P.A. No. 853 of 2012), which was dismissed on 22.11.2012 on the ground of delay. Their review (Civil Review No. 2 of 2013) was also dismissed on 26.09.2013.
Respondent nos. 5 and 6 then approached the Supreme Court by way of Special Leave Petitions, later numbered Civil Appeal Nos. 416-417 of 2017. By judgment dated 13.01.2017, the Supreme Court allowed the appeals, mainly on the ground that there were sufficient reasons to condone the delay in filing the LPA. It set aside the orders dated 22.11.2012 and 26.09.2013 and remanded the LPA to the High Court for decision on merits.
On remand, L.P.A. No. 853 of 2012 was decided by a Division Bench of the Patna High Court on 01.02.2018. The Division Bench allowed the appeal, set aside the earlier writ order dated 14.03.2011, and remanded the writ petition itself for fresh adjudication. This is how the matter came before Hon’ble Mr. Justice Chakradhari Sharan Singh for final decision on 04.01.2019.
What the Court Examined and Decided
The heart of the dispute before the Patna High Court was narrow but important. It was not about who originally owned the land, or whether the petitioner was in fact on the western boundary. Nor was it seriously contested that the purchasers were not strict “co-sharers”.
The core question was: did this tiny homestead plot qualify as “land” within the meaning of Section 2(f) of the Bihar Ceiling Act, so that the pre-emption right in Section 16(3) could be used at all?
To understand this, the Court first noted the undisputed family background. One Hanuman Mandar had three sons: Ishwar, Mehi and Parsi. Ishwar’s line included Yadu and Boku; Yadu’s sons included Mahavir and Sitaram; Boku’s son was Pyare. The vendor, respondent no. 7, is Bilti, daughter of Pyare and thus granddaughter of Boku. The petitioner is the son of Mahavir. The purchasers, respondent nos. 5 and 6, are sons of Sitaram. So, the petitioner and purchasers come from closely related branches of the same family.
It was also undisputed that the land sold to respondent nos. 5 and 6 had been acquired by the vendor in 1993 through a gift deed from her father. The sale deed of 24.05.2000 described the plot as parti land in the homestead area, and contained a recital that the purchasers could use it either for residential or agricultural purposes.
The petitioner argued that:
- He was the boundary raiyat on the western side, as shown in the sale deed.
- The purchasers were not co-sharers of the vendor, so they did not have a superior right.
- Because the sale deed allowed agricultural use, the land was “capable of being used for agriculture” and therefore fell within Section 2(f) of the Act.
- On this basis, Section 16(3) conferred on him a right of pre-emption.
He relied on two Division Bench decisions:
- Jugeshwar Singh and Another v. Jainandan Prasad Singh and Others, 1970 BLJR 1010, to say that there is no distinction in Section 16(3) between homestead, residential or non-residential area, and therefore even homestead land can be the subject of pre-emption.
- Hiralal Chauhan v. The State of Bihar and Others, 2004 (2) PLJR 339, to argue that homestead land falls within the purview of Section 16(3).
On the other side, counsel for respondent nos. 5 and 6 accepted that, strictly speaking, the purchasers could not be called co-sharers of the vendor, though they belonged to the same extended family. He took his stand instead on the nature of the plot itself.
He argued that the land was simply parti homestead land with no dwelling house or any of the features mentioned in the statutory explanation. As such, it did not come within the definition of “land” in Section 2(f) of the Act. He relied heavily on the Full Bench judgment of the Patna High Court in Fakir Mohammad v. Salahuddin and Others, AIR 1975 Patna 119, which was later approved by the Supreme Court in Ramji Sharma @ Ramji Babu (Dead) by Lrs. v. State of Bihar and Others, (1996) 10 SCC 671.
The respondents also pointed out that constructions had been raised on the land during the long pendency of the pre-emption proceedings. On this basis, citing Ram Niwas Singh and Another v. The State of Bihar and Others, 2010 (1) PLJR 845, and Ramayan Sah v. The State of Bihar and Others, 2009 (3) PLJR 833, they argued that any right of pre-emption, even if once available, had been defeated due to change in the nature of the land and because pre-emption is a “weak right” that can be defeated by legitimate means.
The petitioner countered this by showing photographs annexed with the respondents’ own affidavits, arguing that the constructed structure was being used for keeping cattle, which he claimed was an agricultural purpose. Relying on the Supreme Court decision in Suresh Prasad Singh v. Dulhin Phulkumari Devi and Others, 2010 (2) PLJR 167 (SC), he submitted that pre-emption is a statutory right, not a weak right, and survives such changes.
The Single Judge, however, made it clear that, in light of the Division Bench’s earlier order dated 01.02.2018 in the LPA, the main and almost sole question to decide in the writ petition was whether the petitioner had established that the land in question fell within the definition of “land” under Section 2(f). The question about subsequent constructions and possible defeat of pre-emption was treated as secondary.
The Court reproduced Section 2(f) of the Act, which defines “land” as land used or capable of being used for agriculture or horticulture, and includes orchards, pasturage, certain forest and submerged land, and also “the homestead of land-holder”. Explanation I to this definition gives a detailed meaning of “homestead”, including a dwelling house for living or letting out, with its courtyard, compound, attached garden, orchard, outbuildings connected with agriculture or horticulture, and any tank, library or place of worship appertaining to such house.
Turning to the Full Bench decision in Fakir Mohammad, the Court noted that it had been conclusively held there that a parti piece of land belonging to a raiyat, which is his homestead but on which there is no dwelling house or any of the things mentioned in Explanation I, is not “land” covered by the Act. The Court quoted the key passage where the Full Bench observed that such parti homestead land does not fall within the Act.
It was not disputed before the Court that the land in question was part of the vendor’s homestead and that there was no dwelling house or any of the specific features listed in Explanation I standing on it at the relevant time. The Court therefore held that, to qualify as “land” under Section 2(f), a homestead must satisfy the conditions in Explanation I. Without those features, a bare homestead plot, even if capable of being used for agriculture, does not come within the statutory definition.
Because of this clear legal position, affirmed by the Supreme Court in Ramji Sharma, the Court concluded that the disputed plot did not fall within Section 2(f). Consequently, Section 16(3) on pre-emption could not be applied at all. Once that conclusion was reached, the Court found no need to discuss in detail the secondary question of whether subsequent construction or change in land use could defeat a pre-emption right.
The Court also clarified that there was no conflict with the Division Bench ruling in Jugeshwar Singh. That decision only held that Section 16(3) itself does not distinguish between homestead and other areas. But whether a particular homestead is “land” for the purposes of the Act is controlled by Section 2(f) and Explanation I, as interpreted in Fakir Mohammad. Likewise, the Division Bench ruling in Hiralal Chauhan was found inapplicable on the facts of this case, because here the land was admittedly parti homestead land that did not fulfil the Explanation I requirements.
In the end, the Court held that there was no illegality in the findings of the Additional Collector, Darbhanga in his order dated 26.05.2003, and of the Member, Board of Revenue, Patna in his order dated 21.02.2005. Both had rightly concluded that the plot in question was not “land” as defined in Section 2(f) and therefore was beyond the reach of pre-emption under Section 16(3).
On this basis, the writ application was dismissed. No order as to costs was made.
Why This Judgment Matters
This judgment is important for small landholders and boundary neighbours who wish to use pre-emption to challenge sales.
It clarifies that before claiming pre-emption under Section 16(3) of the Bihar Ceiling Act, one must first ensure that the property sold is “land” as defined in Section 2(f). If the plot is merely a bare piece of homestead land without any house or the other features described in Explanation I, the Act does not apply.
This means that even if a person genuinely is a boundary raiyat and the purchaser is an outsider or distant relative, pre-emption cannot be claimed for such bare homestead plots under this Act. The decision reinforces the Full Bench ruling in Fakir Mohammad and the Supreme Court’s approval of that view.
For people in rural Bihar, where homestead plots are often sold in very small bits, this judgment from the Patna High Court sends a clear message: pre-emption rights under the ceiling law are limited and technical. They do not automatically cover every piece of homestead land, especially if it is just open land without a dwelling or other qualifying structures.
Legal Issues and Answers
- Issue: Does a small parti homestead plot without any dwelling house or structures mentioned in Explanation I to Section 2(f) qualify as “land” under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, so as to allow a neighbour to claim pre-emption under Section 16(3)?
Answer: No. Applying the Full Bench decision in Fakir Mohammad, as approved by the Supreme Court, the Court held that such bare homestead land does not fall within the definition of “land” in Section 2(f). Therefore, Section 16(3) does not apply and no pre-emption right arises. - Issue: In light of this finding, were the orders of the Additional Collector and the Member, Board of Revenue, rejecting pre-emption, liable to be quashed?
Answer: No. The Court found no illegality in their concurrent conclusion that the disputed land was outside the scope of Section 2(f). The writ petition challenging their orders was dismissed.
Cases Cited by the Court
- Jugeshwar Singh and Another v. Jainandan Prasad Singh and Others, 1970 BLJR 1010.
- Hiralal Chauhan v. The State of Bihar and Others, 2004 (2) PLJR 339.
- Fakir Mohammad v. Salahuddin and Others, AIR 1975 Patna 119 (Full Bench).
- Ramji Sharma @ Ramji Babu (Dead) by Lrs. v. State of Bihar and Others, (1996) 10 SCC 671.
- Ram Niwas Singh and Another v. The State of Bihar and Others, 2010 (1) PLJR 845.
- Ramayan Sah v. The State of Bihar and Others, 2009 (3) PLJR 833.
- Suresh Prasad Singh v. Dulhin Phulkumari Devi and Others, 2010 (2) PLJR 167 (SC).
Case Details
Case Number: Civil Writ Jurisdiction Case No. 5590 of 2005
Case Title: Shiv Lal Mandar v. The State of Bihar & Ors.
Citation: 2019 (2) PLJR 1193
Court: High Court of Judicature at Patna
Coram: Hon’ble Mr. Justice Chakradhari Sharan Singh
Date of Judgment: 04.01.2019
Advocates:
- For the petitioner: Mr. Shashinath Jha
- For respondent nos. 5 and 6: Mr. Jagdish Prasad Singh
- Advocates for State/respondent authorities: Not specified in the judgment
Nature of the Case: Writ petition under Article 226 of the Constitution of India challenging revisional and appellate orders under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, in a pre-emption proceeding under Section 16(3).
Impugned Orders:
- Order dated 26.05.2003 by the Additional Collector, Darbhanga in Appeal Case No. 3 of 2001-02.
- Order dated 21.02.2005 by the Member, Board of Revenue, Patna in Revision Case No. 141 of 2003.
Link to Judgment: Click here to read the full judgment of the Patna High Court
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