RAMJI SHARMA @ RAMJI BANU V. THE STATE OF BIHAR AND ORS INSC 1162

The question which is to be answered is as to whether the expression land as defined in the Act will include not only the land which are being used or capable of being used for agriculture or horticulture purposes but also land 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 used for agriculture or horticulture purposes. With growth of population and development activities slowly-slowly such agricultural land are converted to use which are non- agricultural. Many colonies have been developed by the side of the old cities which at one point of time were agricultural fields and crops used to be grown. But with passes of time and cry for more plots of land for construction of buildings they lost their original character and purpose. It appears that the framers 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 put by saying that it meant land which 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 is to put ceiling on the land 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 Government. In this background neither it can be assumed not it can be held that the frames 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 completely urban in nature or even in 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 be said that such plots which are meant for building purposes shall be deemed to be land within the meaning of Section 2(f) of the Act? According to us, the answer is in negative. Whenever and application under Sub-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 which is the primary object for which such land was being used or is capable of being used. If it found that the land was being retained by the transferor or was being transferred to another person for a purpose and object which is not connected which agriculture then and application under sub-section (3) of Section 16 should not be entertained. On the 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 provisions of the Act have to be 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 vs. Salahuddin & Ors., Air 1975 PATNA 119, presided over by N.L. Untwalia C.J. (as he then was) examined the scope of expression 'land' as defined in Section 2 (f) of Act. It was observed:

"The consensus of opinnion - 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 in the Explanation, is not a land covered by the Act. It has been further pointed out that land fit for building purposes not connected with agriculture situated ordinarily and agriculture situated ordinarily and generally 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 make it a land within the meaning of Section 2(f). (emphasis supplied) We are in agreement with the view expressed in the aforesaid judgment of the Full Bench. So far the facts of the present case are concerned, the High Court has rejected the contention that the land is question can be held to be land within the meaning of Section 2(f) merely because in the Kathian Entry it had been recorded as Bhit Land. The High Court in the impugned order has observed: "It goes without saying that all the urban lands at some at some point of time or the agricultural operations were carried on. There fore, mere description of the land as a Bhit land by the survey authorities would not be a conclusive proof that the land was agricultural in nature. The fast development and urbanisation of the town Hazipur which has very recently been made a district, cannot be lost sight of. Therefore, I, would accept the second contention of Mr. Krishna Prakash Sinha and hold that the pre-emptor has not succeed in establishing his case that the disputed land was a land within the 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, the application filed under sub-section (3) of Section 16 has been rightly dismissed. Accordingly, the 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 in connection with the application under sub-section (3) of section 16 of the Act. The refund shall be made within three months from the date of the filing the application on behalf of the appellant.