No right to pre-emption for co-sharers under Bihar Land Reforms Act if the land is non-agricultural

Patna High Court: A Division Bench set aside an order by a Single Judge of the same Court which allowed pre-emptive rights to co-sharers in a property. The appellant purchased a small piece of land from one of the respondents, who since died and was represented by his legal heirs. Other respondents who are all descendants of a common ancestor, claiming to be boundary raiyats and co-sharers in the property filed before the Deputy Collector Land Reform (“DCLR”) for pre-emption, who allowed the application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (“the Act”), which reads:

“When any transfer of land is made after the commencement of the 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 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 is deposited in the prescribed manner within the said period.”

This decision was challenged before the Additional Collector of Saran, Chapra, the Additional Member of the Board of Revenue, Bihar and a Single Judge Bench of the Patna High Court, all of whom upheld the pre-emption.

The respondents maintained the position that since the land was agricultural land, they were entitled to pre-emption under the Act and the said land be transferred to them at the rate paid by the appellant-transferee.

The appellant contended that though the land was listed in public records as agricultural and ‘sinchit’ (irrigated), it had changed its nature over the years and that pucca houses had been built on the said piece of land and also on adjoining land, making it a residential property and hence not under the purview of Section 16(3) of the Act. This factum of permanent construction on the land in question and surrounding land was observed and reported by the amin (local official) sent to inspect the land by the DCLR but the DCLR had ruled against the appellant only because the land was originally listed as agricultural.

The Court observed that the Act was made to facilitate cultivation of larger tracts of land and to offset the fragmentation of land caused by partition within families to facilitate better cultivation. Since the evidence was presented to show that the land was now being used as a residential tract and further that the piece of land under dispute was too small to sustain cultivation, no right of pre-emption would exist for co-shareres and boundary raiyats under the Act. Hence the judgment by the lower forums was set aside, and the appeal was allowed. [Kalika Prasad Rai v. State of Bihar, 2018 SCC OnLine Pat 813, decided on 17-05-2018]

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