1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4576 of 2005 ANIL DUBEY Versus THE STATE OF BIHAR & ORS ----------- 05 04.07.2008 The petitioner has challenged the resolution of the Board of Revenue by which Revision Case No. 197 of 2003 as filed by the private Respondent No. 5 has been allowed, thus, i.e. disentitling the claim of the petitioner to pre emption. Private respondent has appeared. Parties have been heard. The first point pressed in support of the writ petition was that from the ordersheet of the Board of Revenue it would be evident that notices were not sent/served on the writ petitioner because of which he remain unrepresented leading to an ex parte order. I have examined the entire ordersheet. The ordersheet clearly states that notices are to be issued. Learned counsel for the State submits that notices by ordinary post were sent on several occasions and lastly on 05.10.2004 notice by registered post was sent but the matter was heard on 27.10.2004, 2 i.e. within a period of less than one month. Petitioner submits that even if a presumption is drawn in terms of the Code of Civil Procedure and the General Clauses Act with regard to service of notice through registered post the presumption can only be drawn if the period was more than 30 days. Here the notice was issued on 05.10.2004 and the case was heard and orders reserved on 27.10.2004, i.e. within 22 days. Learned counsel for the petitioner is correct no presumption of valid service of notice can be raised in such a case. Thus, from the ordersheet it is clear that the writ petitioner has not been validly noticed and the matter was heard without notice to him. Learned counsel submits on basis thereof that an order passed in violation of principles of natural justice is void ab initio. The petitioner is correct. This position has been settled by the Apex Court in the decision of S.L. Kapoor Vs. Jagmohan & Ors. AIR 1981 SC 136. But, in the said decision itself an exception has been carved out. It has been specifically held that if 3 failure to give notice has not occasioned failure of justice in any manner then failure to give notice would not vitiate proceedings. In other words, what is said is that if the result that would follow as a consequence of admitted facts was one and only one then if the facts are not in dispute, failure to serve notice could not vitiate the order. In my view, petitioner’s case falls within that exception. Learned counsel for the petitioner clearly states that if the finding as recorded by the Board of Revenue that private Respondent No. 5 had by virtue of a subsequent purchase prior to lodging pre emption application become a adjoining raiyat then the right of pre emption as envisaged under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act would not lie. The right of pre emption would stand frustrated. Learned Additional Member Board of Revenue has categorically recorded the finding that prior to pre emption 4 application being filed which date is not in dispute, private respondent had made a second purchase of adjoining land by registered sale deed dated 11.08.2000. Learned counsel for the Respondent No. 5 has produced the original registered sale deed before this Court of the said date, the authenticity whereof is not challenged by petitioners, that being the position, the facts as noted by the learned Additional Member Board of Revenue are no more open to controversy; if those are the facts then the only consequence that can flow is that the right of pre emption is lost. If the right of pre emption is lost the writ petition is fit to be dismissed and is dismissed as above. Trivedi/ (Navaniti Prasad Singh,J.)