ORDER
1. This application by Smt Uma Devi under Articles 226 and 227 of the Constitution of India is directed against the resolution dated the 23rd of October, 1972 (Annexure 7) passed by the Additional Member, Board of Revenue, respondent No, 5, directing the property purchased by the petitioner from Dwarika Mistry, respondent No, 2, to be pre-empted by Raktoo Thakur, respondent No. 1, under Section 16 (3) (i) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act).
2. In order to appreciate the points involved in this application it will be necessary to state briefly the facts mentioned in the petition of the petitioner and in the counter-affidavit (show cause filed on behalf of respondent No, 1). The petitioner is a resident of village Mathiapur, police station Dinapore, in the district of Patna and, according to the petitioner, the village is situated to the close south of Orderly Bazar of Dinapore Cantonment and is fast developing into an urban area, Village Mathiapar is under Revenue Thana No, 30, Police Station Dinapore, Pargana Phulwari, District Patna and is within the notified and controlled area of the Patna Improvement Trust from 1959 and is so notified in the Bihar Gazette, The ancestral house of the petitioner’s husband is situate in cadestral Survey Plot No. 1846 in village Mathiapar and as there were difficulties of residence in the said house due to increase in the family members, the petitioner purchased 13 decimals of the western portion of the land contained under cadestral survey plot No, 1864 for building a house thereon by two registered sale deeds dated the 3rd of April, 1967 from respondent No. 2. Under one sale deed she purchased 6 decimals of land for Rs. 1,000 and under another sale deed she purchased 7 decimals for Rs. 1,000. She stated in her petition that the land contained under plot No. 1864 is a homestead land and is situated south-east of the ancestral house of the petitioner and is only intervened by a public lane. After the purchase of the lands in plot No. 1864 she constructed a brick built room and the same was being utilised for residential purpose by the petitioner and her family members. The petitioner’s family members are raiyats of the village and are cultivators toy profession, only her husband is in military service To the west of the said public passage by the side of the lands of plot No, 1864 is gairmazrue malik land bearing plots Nos. 1-862 and 1847 and in these plots stood respectively the houses of one Ganesh Lal and his brother Mahesh Lal and one Gopi Thakur from before survey. A true copy of the Cadestral Survey Khatian of the said plots is marked as Annexure 1 to the application.
The petitioner stated in her application that respondent No. 1 was originally not a resident of village Mathiapar but he acquired the said house in plot No. 1862 by a registered sale deed in 1963 and is residing therein and is also in possession of the house of Gopi Thakui on plot No, 1847 as Gopi Thakur died issueless and he was allowed to reside therein. It may be noted here that according to the case of respondent No. 1 as stated in his counter-affidavit, the house in plot No. 1862 was acquired by respondent No, 1 in 1965, whereas -as regards the house on plot No. 1847, according to respondent No. 1, after the death of Gopi Thakur he got it by survivorship as Gopi Thakur was the grandfather of respondent No. 1. The petitioner stated in her application that respondent No. 1 is a barber by caste and profession and he had not got any culturable land in the village and is not a raiyat within the meaning of the Act, Plot No, 1862 measures only 5 decimals whereas plot No. 1843 measures only .03 decimals, and the house of respondent No. 1 on those two plots are very small and both are apart and separated by a public lane and they are utilised for residence only and for doing the work of his profession. In other words, according to her, the purpose of those houses are non-agricultural and on those lands no tree of any kind exists. Respondent No, 1 filed a petition under Section 16 (3) (i) of the Act for pre-emption of the said lands of plot No. 1864 purchased by the petitioner from respondent No. 2 and the said application of respondent No. 1 was registered as Ceiling Case No. 5 of 1967-68 before the Subdivisional Officer, Dinapore, respondent No. 3, A copy of the said application of respondent No. 1 is marked as Annexure 2. On behalf of the petitioner an objection was filed before respondent No. 3. A copy of the objection petition is marked as Annexure 3 to the application. After hearing the parties, respondent No, 3, by order dated the 23rd October, 1967 (Annexure 4) allowed the application of respondent No. 1 and directed the petitioner to execute a Kobala in favour of respondent No, 1 by 30th of November, 1967. Aggrieved by the said order the petitioner preferred an appeal before the Additional Collector, Patna, who by his order dated the 3rd of October, 1969 (Annexure 5) allowed the appeal of the petitioner and set aside the order of respondent No. 3. Aggrieved by the order of the Additional Collector, respondent No, 1 filed revision before the Commissioner, Patna Division, respondent No, 4, who by his decision dated 25-11-1971 (Annexure 6) set aside the order of the Additional Collector and allowed the revision application filed by respondent No. 1, As against that the petitioner preferred revision before the Hon’ble Member, Board of Revenue, who by the impugned resolution was pleased to affirm the order passed by the Commissioner, respondent No. 4,
3. In this case, as mentioned earlier, on behalf of respondent No. 1 a counter-affidavit has been filed on the 5th of July, 1973, inter alia, supporting the impugned resolution by respondent No. 5. Thereafter on behalf of the petitioner a supplementary affidavit was filed, reiterating the statements made by the petitioner, on the 24th of February, 1975.
4. Mr. Radhey Shyam Chatterjea, learned counsel appearing on behalf of the petitioner, has assailed the impugned order and has raised the following points for consideration by us:–
(i) Respondent No. 1 is not a raiyat within the meaning of the Act,
(ii) The Act does not apply to the building site in an urban area.
(iii) Respondent No. 4, namely, the Commissioner, had no right to entertain the revision application under the Act.
5. It will be convenient to deal with the first point first. On this point we had also called for a report from the Land Reforms Deputy Collector, by order dated the 15th of May, 1975. The relevant portion of the order reads thus:–
“On the hearing of the parties we considered that for the disposal of this application a finding as to whether Raktu Thakur, the pre-emptor in ceiling case No. 5 of 1967-68 (before S.D.O., Dinapore) under Section 16 (3) (i) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to ‘be called as the Act) is a r-aiyat within the meaning of the Act. Therefore we direct the Land Reforms Deputy Collector, Dinapur to give a finding and report within three months to this Court after hearing the parties and after giving them an opportunity to adduce evidence on that point. Learned counsel for the parties have undertaken that they would co-operate and give full facilities to L. R. D. C., Dinapur in submitting his report within the time prescribed by this court. Meanwhile the status quo shall be maintained by, the parties.”
The Land Reforms Deputy Collector has submitted a report on 19-4-76 and in his report, inter alia, has found that respondent No. 1 is a raiyat within the meaning of the Act.
6. Mr. Chatterjee submitted that his report is not correct and not in accordance with law. According to him, the lands under plots Nos. 1847 and 1862 of respondent No. 1 are merely homestead lands and those lands are not used for cultivation purpose. They contain mere small houses. Therefore, according to him, respondent No. 1 had no right to pre-empt the land purchased by the petitioner In plot No. 1864. He submitted that he might be cultivator elsewhere but on different plots. That, according to him, is not sufficient. Respondent No. 1 could have been land-holder and entitled to pre-empt only when the lands under plots Nos. 1847 and 1862 were under cultivation. According to the report of the Land Reforms Deputy Collector it is clear that no cultivation work was done on any piece of the lands by respondent ‘No. 1 under plots Nos. 1847 and 1862. He further submitted that they were merely homestead lands, not meant for agriculture. In order to find support to his submission, he referred to the various provisions of the Act. He referred to Section 2(f) of the Act which reads:–
” ‘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 the homestead of a land-holder.”
The explanation thereunder reads thus:– ” ‘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.”
He also drew our attention to the provisions contained under Section 2 (g) of the Act which is to this effect:–
” ‘Land-holder’ means a family, as defined in Clause (ee) holding land as raiyat or as under-raiyat and includes a mortgagee of land in possession”.
It will be useful also to refer to explanation (i) to Section 2 (g) of the Act, which is to this effect:–
“A member of an undivided Hindu family having or being entitled to a share in land shall be deemed to be a land-holder for the purposes of this Act as if there had been partition in the family immediately before the commencement of this Act.”
He also referred to Section 2 (k) which defines ‘Raiyat’ as hereunder:–
” ‘raiyat’ means .primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants or with aid of partners, and includes also the successors-in-interest or persons who have acquired such a right and includes in the district of Santhal Parganas, village headman in respect of his private land, if any, but does not include in the areas to which the Chotanagpur Tenancy Act, 1:908 (Ben. Act VI of 1908), applies, a Mundari Khuntkattidar or a Bhuinhar.”
7. In our view, none of these provisions lends support to the contention of the learned counsel for the petitioner. By reference to these provisions, it cannot be said that respondent No. 1 would ‘be considered as land-holder only if he cultivated the lands contained under the homestead land in plots Nos. 1847 and 1862. He can very well be termed as land-holder if he cultivates land on other plots and the findings of the Land Reforms Deputy Collector is that he is cultivator elsewhere. So is the statement of respondent No. 1 in the counter-affidavit. In paragraph 7 of the counter-affidavit he stated that he has got cul-turable land in the village and is a raiyat and land-holder within the meaning of the Act and the kasht land stands in the name of his sons and the joint family of respondent No. 1 is in possession over the same under duly granted rent receipts on payment of rent to the State of Bihar. In paragraph 8 of the counter-affidavit he also stated that the plots Nos. 1862 and 1847 belong to respondent No. 1 and are used for agricultural purposes and the same are homesrtead of an agriculturist.
8. Mr. Chatterjee has also relied in this connection on the decision in the case of Md. Yusuf v. The Member, Board of Revenue (AIR 1973 Pat 97) and he drew our attention to paragraphs 5 and 6 of the judgment. In our opinion, the observations made by their Lordships in that case are also of no avail to the petitioner. It may be noticed that in paragraph 5 it was observed that the definition of the ‘land’ given in Clause (f) includes the homestead but not all kinds of homestead. It includes the homestead of land-holder only. The land-holder must be a person who holds land as a raiyat or as an under-raiyat. He could not hold a land as a raiyat or as an under raiyat unless the homestead land held by him is held for agricultural purpose. In the instant case, as stated earlier, respondent No. 1 has stated that he is using those homestead lands for agricultural purpose, as it is the finding in the report of the Land Reforms Deputy Collector also that he is raiyat in the village. In other words, this homestead land under plots Nos. 1847 and 1862 is used as an ancillary to agriculture. Learned counsel for the petitioner then referred to the decision in the case of Syed Fakir Mohammad v. Sheikh Salahuddin, 1974 BBCJ 941: (AIR 1975 Pat 119) (FB) and he drew our attention to paragraphs 6 and 7 of the judgment. In our view, the observation made therein also does not help the contention of the learned counsel for the petitioner. It may be noticed that in that case also the decision reported in AIR 1973 Pat 97 (supra) was referred and their Lordships came to the same conclusion, that is, that a homestead land used for agricultural purpose is too homestead of a land-holder. Learned counsel then referred to the preamble of the Act which reads thus:–
“To provide for fixation of ceiling restriction on sub-letting and resumption by certan raiyats for personal cultivation of land, acquisition of status of raiyat by certain under-raiyat and acquisition of surplus land by the State in the State of Bihar and matters connected therewith.”
In this connection he also referred to the decisions in the case of Hiralal Agrawal v. Rampadarath Singh (AIR 1969 SC 244) where their Lordships at page 247, in paragraph 4, while construing the provisions contained under Section 16 (3) of the Act observed that it was a piece of beneficent legislation intended to prevent fragmentation of holdings and to facilitate consolidation with a view to utilisation of land in the most advantageous manner, and that to attain these objects when a transfer of land was made, a co-sharer of the transferor or a raiyat of the adjacent land was given the right to have the land reconveyed to him by the transferee through the Collector.
In our opinion, the above observation or the preamble of the Act does not lend support to the contention of the learned counsel. In the instant case, the main question is as to whether respondent No. 1 would be treated as land-holder under the Act and whether he has a right to pre-empt, which we have held in favour of respondent No, 1. In that view of the matter, the contention of the learned counsel for the petitioner under point No. (i) is not acceptable.
9. Now we turn to consider the submission of learned counsel for the petitioner under point No. (ii). In our opinion, on the facts and in the circumstances mentioned in this case, it cannot be held that the disputed plots lie within the urban area. The learned Member, Board of Revenue, under Annexure 7, in paragraph 7 of his resolution, has rightly observed that the argument advanced on behalf of the petitioner regarding the lands in question falling within the urban area was not acceptable as he found that the village in question had a distinct entity and did not come within the municipal corporation or the Cantonment limits. Besides, the statement made by the petitioner in this regard has been controverted by respondent No, 1 in his counter-affidavit, In paragraph 1 thereof, respondent No. 1 has stated that the said village Mathiapar is situated far away from Dinapur Cantonment and is purely a rural area and the same is not close to the orderly bazar of the Dinapur Cantonment, nor It was developing into an urban area. In that view of the matter, the contention of the learned counsel for the petitioner In this regard has also no substance. For the view which we have taken while considering points Nos. (i) and (ii), it is not necessary to deal with the submission of learned counsel under point No. (iii) wherein he stated that respondent No. 4, the Commissioner, had no jurisdiction to entertain the revision.
10. In the result, therefore, the application is dismissed and the impugned order is affirmed. In the circumstances, however, there will be no order as to costs.