RAMJI SHARMA @ RAMJI BABU (DEAD) BY LRS.versusTHE STATE OF BIHAR AND ORS.

A             RAMJI SHARMA @ RAMJI BABU (DEAD) BY LRS.
                                  v.
                     THE STATE OF BIHAR AND ORS.

                               SEPTEMBER 19, 1996

B                    [N.P. SINGH AND S.B. MAJMUDAR, JJ.J·

          Bilzar Land Refonns (Fixation of Ceiling Area and Acquisition of
    Surplus Land) Act, 1961:

C        Sections 2(b), 2(g), 16(3)-Transfer of la11ds to any person other than
  the co-sharer or a raiyat of adjoining land-Right of any co-sharer of the
  transferor or any raiyat holdi11g land adjoi11i11g the land trans/eJTed, to make
  an application for transfer of the land to him-Held : In view of the fact that
  the lands in question were in the urban area, the High Court lightly rejected
  the application-Appellant pennitted to withdraw the amount deposited by
D him alo11g with the application-Refund ordered to be made within three
  months.

         Fakir Mohammad v. Salahuddin & Ors., AIR (1975) Patna 119, ap-
    proved.

E           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1505 of
    1981.

         From the Judgment and ::lrder dated 15.9.80 of the Patna High Court
    in LP.A. No. 103 of 1980.
F            L.R. Singh for the Appellants.

             S.B. Sanyal, S.K. Sinha, R.P. Singh, AK. Pandey for the Respon-
    dents.

             The following Order of the Court was delivered :
G
          This appeal has been filed for setting aside the judgment of the High
    Court, dismissing the application 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 Act) filed on behalf of the appellants,
H   claiming retransfer of the lands which had been transferred by respondent
                                        514
                          RAMJISHARMAv. STATE                                515

   No. 5 in favour of respondent No. 7 through the registered sale deed dated       A
· 30.12.1969. The respondent No. 7 by the aforesaid sale deed purchased 5
 · kathas of land of survey plot No. 610 and 6 kathas 10 dlutrs of land of survey
   plot No. 614 from respondent No.5 for a consideration amount of Rs. 4,600.
   The purchase had been made for construction of house in Mahalia Sah-
   jadpur Aderkila within the town of Hajipur.
                                                                                    B
        An application under sub-section (3) of Section 16 of the Act was
 filed on behalf of the appellants before the Deputy Collector, Land
 Reforms, for a direction that respondent No. 7, the transferee be directed
 to convey the lands purchased by him by executing and registering a deed
 of transfer in favour of the appellants in terms of the said sub-section (3) C
 of Section 16. That application was dismissed by the Deputy Collector,
 Land Reforms, on the ground that the lands which had been transferred
 shall not be deemed to be the lands within the meaning of the Act, as such
.the provisions thereof shall not be applicable. However, an appeal being
 filed on behalf of the appellants, was allowed by the Collector. The
 Member, Board of Revenue, dismissed the Revision Application, filed on D
 behalf of Respondent No. 7 Thereafter, a writ petition was filed on behalf
 of Respondent No. 7, for quashing the orders passed by the Collector and
 the Member, Board of Revenue before the High Court. The High Court
 by the impugned judgment quashed the orders passed by the Collector and
 the Member, Board of Revenue, on a finding that as the lands which had
 been transferred were within the town of Hajipur and were urban in nature, E
 the provisions of the Act shall not be applicable including sub-section (3)
 of Section 16 thereof. This finding of the High Court is being questioned
 in this appeal.

        The Preamble of the Act says that it is an Act to provide for fixation
 of ceiling, restriction on sub-letting and resumption bY\certain raiyats, for
                                                                                    F
 personal cultivation of land, acquisition of status of raiyc\t by certain under
 raiyats and acquisition of surplus land by the State in the State of Bihar
 and matters connected therewith. Section 2(t) defines land :

              "(t) "land" means land which is used or capable of beirtg used G
          for agriculture or horticulture and includes land which is an or-
          chard Kharhur or pasturage (or forest land or even land. peren-
          nially submerged under water) or the homestead of the
          land-holder;

              Explanation I. - "Homestead" means a dwelling house for the           H




                                                '
    516                   SUPREME COURT REPORTS [1996] SUPP. 6 S.C.R.

A           purpose of living or for the purpose of letting out on rent together
            with any courtyard, compound, attach~d garden, orchard and
            out-building and includes any outbuilding of the purpo.;e con-
            nected with agriculture or horticulture and any tank, liberary and
            place of worship appertaining to such dwelling house.
B              Explanation II. - Land perennially submerged under water shall
            not include land submerged in the bed of a river."




c
    Section 2(g) defines 'land holder' :

            "(g) 'land holder' means a family as defined in clause (ee) holding
            land as raiyat or as under-raiyat or a mortgagee or land in posses-
                                                                                     -
            sion or holding land permanently settled by Government or lessee
            of land not resumable by Government."

    On a plain reading of the definition of land it means which is used or
D capable of being used for agriculture or horticulture or for the homestead
    of a land-holder. Explanation I, specifies what is meant by homestead
    which shall include dwelling house for the purpose of living or for the
    purpose of letting out on rent together with courtyard, compound, attached
    garden, orchard and includes any outbuilding for the purpose connected
E   with agriculture or horticulture. Section 4 prescribes the ceiling area of the
    land which a land-holder can hold under the provisions of the Act. The
    other provisions relate to fixation of such ceiling and declaration of the
    surplus land which shall vest in the State. Sub-section (1) of Section 16
    provides that no person shall, after, the commencement of the Act, either
    by himself or through any other person, acquire or possess by transfer,
F   exchange, lease, mortgage, agreement or settlement any laild which
    together with the land, if any, already held by him exceeds in the aggregate
    the ceiling area. Sub-section (3) of Section 16 provides :

                "3(i) When any transfer of land is made after the commence-



                                                                                     -
            ment of this Act to any person other than a co-sharer or a raiyat
G           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
H           and conditions contained in the said deed :
                            RAMJI SHARMA v. STATE                            517

               Provided that no such application shall be entertained by the A
            Collector unless the purchase-money together with a sum equal to
            ten per cent thereof is deposited in the prescribed manner within
            the said period.

                (ii) on such deposit being made the co-sharer or the raiyat shall   B
            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 the land
            and possession thereof shall be restored to the transferer and the      C
            transferee shall be entitled to be paid a sum equal to ten per cent
            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 D
            applicant by executing and registering a document of transfer
            within a period to be specified in the order and, if he neglects or
            refuse to comply with the direction, the procedure proscribed in
            Order XXI, Rule 34 of the Code of Civil Procedure, 1908, (IV of
            1908), shall be, so far as may be, followed."
                                                                                    E
    In view of sub-section (3) of Section 16, whenever any transfer of land is
    made to any person other than the 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 the period prescribed therein to make
    an application before the Collector for the transfer of the land to him on      F
    the terms and conditions contained in the said deed. He has to comply with
    the other requirements of the said Section by way of deposit of purchase
    money along with a sum equal to 10% thereof.

           The question which is to be answered is as to whether the expression
    land as defined in the Act will include not 'only the lands which are being G
    used or capable of being used for agriculature or horticulture purposes but
    also lands within the urban areas meant for building purposes. It is well
    known that in and around the towns and urban areas at one point of time
    most of the lands were being used for agriculture or horticulture purposes.
    With growth of population and development activities slowly-slowly such H
    518                  SUPREME COURT REPORTS (1996] SUPP. 6 S.C.R.

A agricultural lands are converted to uses which are non-agricultural. Many
  colonies have been developed by the side of the old cities which at one
  point of time were agriculture fields and crops used to be grown. But with
  passage of time and cry for more plots of land for construction of buildings
  they lost their original character and purpose. It appears that the farmers
B of the Act were quite conscious of this aspect of the matter, that is why
  while defining 'land' they laid much emphasis in respect of the nature of
  use such land was being put by saying that it meant land which is used or
                                                                                 (
  capable of being used for agriculture or horticulture or the homestead of
  the land-holder. It need not be pointed out that the sole object of the Act
C is to put ceiling on the lands held by land-holders for agriculture or
  horticulture purposes and to declare the areas beyond the ceiling as surplus
  which shall vest in the State Goverilment. In this background neither it can
  be assumed nor it can be held that the framers of the Act had in mind even
  the lands which are in the heart of the cities meant for construction of
  buildings. It is a matter of common knowledge that even in areas which are
D completely urban in nature or even in a colony some plots are lying vacant
  as no constructions have been made over the same for one reason or the
  other including financial constraint. Till constructions are made they are
  being used for growing some crops or fruits. But can it be said that such
  plots which are meant for building purposes shall be deemed to be land
E within the meaning of Section 2(f) of the Act? According to us, the answer
  is in negative. Whenever an application under sub-section (3) of Section
  16 is filed, which is in respect of a land within the urban area, the
  authorities or the High Court concerned should first examine what is the
  primary-object for which such land was being used or is capable of being
  used. If it is found that the land was being retained by the transferor or
F
  was being transferred to another person for a purpose and object which is
  not connected with agriculture then an application under sub-section (3)           _j>
  of Section 16 should not be entertained. On other hand, if the authorities
  or the High Court are satisfied that the land which has been transferred is
  fully covered by the definition of land as given under Section 2(f) then
G provision of the Act have to be applied for examining the question as to
  whether the applicant was entitled for retransfer in his favour from the
  transferee on the same terms and conditions. A Full Bench of the Patna
  High Court in the case of Fakir Mohammad v. Salahuddin & Ors., AIR
  (1975) PATNA 119, presided over by N.L. Untwalia, CJ. (as he then was)
H examined the scope of expression 'land' as defined in Section 2(±) of the
                         RAMJI SHARMA v. STATE                            519

Act, It was observed :                                                           A
            "The consensus of opinion - and, as I shall presently show, there
        is no conflict in any of the decisions - is that a parti piece of land
        belonging-to a raiyat, an agriculturist, which is his homestead on
        which there is no dwelling house or any of the things as mentioned
                                                                                 B
        in the Explanation, is not a land covered by Act. It has been fwther
        pointed out that a land fit for building proposes not connected with
        agriculture situated ordina1ily and general(v in town or bazaar areas,
        to which are applicable the provisions of the Transfer of Property
        Act, is not the homestead of a land-holder to made it a land within
        the meaning of Section 2(f)."                                            c
                                                        (Emphasis supplied)

We are in agreement with the view expressed in the aforesaid judgment of
the Full Bench.                                                          D
      So far the facts of the present case are concerned, the High Court
has rejected the contention that the land in question can be held to be land
within the meaning of Section 2(t) merely because in the Kathian Entry it
had been recorded as Bhit Land. The High Court in the impugned order
has observed :                                                                   E

            "It goes without saying that all the urban lands at some point
        to time or the other were rural in nature where agricultural
        operations were carried on. Therefore, mere description of the
        land as a Bhit Land by the Survey authorities would not be a F
        conclusive proof that land was agricultural in nature. The fast
        development and urbanisation of the town of Hazipur which has
        very recently been made a district, cannot be lost sight of. There-
        fore, I would accept the second contention of Mr. Krishna Prakash
        Sinha and hold that the pre-emptor has not succeeded in estab-
        lishing his case that the disputed land was a land within the G
        meaning of the provisions of the Act to which the provisions of
        section 16(3) would apply."

In view of the findings recorded by the High Court that the land which
have been transferred were in the town of Hajipur and in the urban area,         H
    520                  SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.

A   the application filed under sub-section (3) of Section 16 has been rightly
    dismissed. Accordingly, appeal fails and it is dismissed. There shall be no
    orders as to cost.

          The appellant shall be permitted to withdraw the amount which has
    been deposited on behalf of the appellant in connection with the applica-
B   tion under sub-section (3) of Section 16 of the Act. The refund shall be
    made within three months from the date of the filing of the application on
    behalf of the appellant.

    G.N.                                                    Appeal dismissed.