Letters Patent Appeal No.1376 of 2010 Against judgment and order dated 24.6.2010, passed by a learned Single Judge of this Court in CWJC No.1810 of 1991. ******** 1(a) Bharat Singh 2(b) Lakshman Singh - Both are sons of Late Thakur Singh, residents of Village – Gangpur – Sisawan, PS Sisawan, District Siwan ....Appellants (Respondent no.5(a) and (b) in writ petition) versus 1. The State of Bihar 2. The Additional Member, Board of Revenue, Bihar, Patna 3. The Additional Collector, Siwan 4. The Deputy Collector Land Reforms, Siwan 5(a) Subhash Singh, son of late Harendra Singh (b) Bhup Narayan Singh, son of late Harendra Singh (c) Umesh Kumar Singh, son of Late Harendra Singh 6. Radhika Devi W/o Late Harendra Singh 7. Vyas Singh, son of late Harendra Singh - Respondent nos. 5 to 7 are residents of Village Gangpur-Sisawan, PS Sisawan, District Siwan ..... Respondents/Respondents (1st set) 8. Triyogi Mahto, son of Late Ram Janam Mahto 9. Ram Mahto, son of Suchit Mahto (Respondents no. 8 and 9 are vendors) -Respondents no.8 and 9 are residents of Village – Gangpur Sisawan, PS Sisawan, District Sisawan .....(Respondent 2nd set)/Respondents ****** For the Appellants : Mr. Dhrub Narayan Senior Advocate For Respondent nos. 5, 6 and 7 : Mr. Udit Narayan Singh Advocate ******* P R E S E N T HON’BLE MR. JUSTICE SUDHIR KUMAR KATRIAR and HON’BLE MR. JUSTICE AHSANUDDIN AMANULLAH Ahsanuddin Amanullah, J. The present Letters Patent Appeal has been filed under clause 10 of the Letters Patent of the High Court of Judicature of 2 Patna, against the order dated 24.6.2010, passed in CWJC No.1810 of 1991 (Harendra Singh & Ors. vs. The State of Bihar & Ors). The writ petition was filed against the order dated 20.7.84, passed by the learned DCLR, Siwan, the order dated 7.11.89, passed by the Collector, Siwan, as well as the order dated 17.1.91, passed by the Additional Member, Board of Revenue, in a matter with regard to 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’). The writ petitioners were the original purchasers of the land in question, whereas the private respondents, who are the appellants herein, were the pre-emptors. The land in question was transferred in favour of the purchasers (writ petitioners) by sale deed executed on 16.3.83 and registered on 25.1.84 under three separate deeds in favour of the three writ petitioners. The private respondents (appellants herein) filed three separate pre-emption cases on 6.2.84 before the DCLR, Siwan, on the ground that they were the adjoining raiyats and thus entitled for getting the land in question reconveyed to them as per the provisions of Section 16(3) of the Act. By order dated 20.7.84, the DCLR, Siwan, allowed the three pre-emption cases in favour of the present appellants. Being aggrieved, the writ petitioners filed separate appeals and finally by order dated 7.11.89 all the said three appeals were dismissed by the Collector, Siwan. Thereafter the writ petitioners preferred three separate revision cases before the Board of Revenue, which were also dismissed by order dated 17.1.91 by the Additional Member, Board of Revenue. In the meantime, on 19.1.90, the appellants herein filed petition in the court of DCLR, 3 Siwan, praying for reconveyance of the land in question in view of the affirmation of the appeals by the court of Collector, Siwan. Being aggrieved by the three concurrent orders of the revenue authorities, the writ petitioners who are the original purchasers preferred CWJC No.1810 of 1991 which came to be allowed by the order dated 24.6.2010 by a learned Single Judge of this Court. The said order is impugned in the present appeal. 2. The learned Single Judge while allowing the writ petition has taken into consideration that the lands purchased by the writ petitioners were very small and the sale deed itself mentions that they had been purchased for the purpose of construction of a house and further that they were in possession of the lands for the past 25 years, i.e. the date from which the sale deed was executed in their favour. The learned Single Judge has also relied upon the judgments referred therein supporting the contention while allowing the writ petition. 3. Learned Senior Counsel appearing for the appellants has submitted that all the three revenue authorities on fact having held that the appellants were the adjoining raiyats and entitled to pre- emption, it was not proper for the learned Single Judge to have allowed the writ petition by over-ruling the factual findings given by all the three revenue authorities. He has further submitted that though three separate revision applications were filed before the Board of Revenue by three different persons, but only one writ petition was filed which was not proper. He also submitted that petitioner no.1 had died during the pendency of the writ proceedings and though 4 substitution application on behalf of the heirs was filed but no order came to be passed on the same. Thus, in that view of the matter, as far as the case of petitioner no.1 in the writ is concerned, no relief could have been granted on the date the order was passed by the learned Single Judge. He lastly submits that Section 16(3) being a statutory provision, has been held to be mandatory in nature and has got the recognition of the statutes and is now a good and enforceable right. He, therefore, submits that once there was concurrent findings of facts by all the said revenue authorities to the effect that the lands in question came within the definition of Section 2(f) of the Act and coupled with the fact that the admitted position is that the appellants are adjoining raiyats, it was not discretionary for the authorities to deny the right of pre-emption to them and thus rightly their application was allowed by the DCLR and upheld by the Collector as well as by the Addl. Member, Board of Revenue. He submits that the learned Single Judge has also erred on this count. In support of his contentions, learned Senior Counsel has relied upon the judgments of the Hon’ble Apex Court in the case of Sheoji Mahto vs. Addl. Member, Board of Revenue, as reported in (1997) 1 SCC 733, and the case of Suresh Prasad Singh vs. Dulhin Phulkumari Devi, as reported in 2010 (2) PLJR 167. 4. Learned Counsel appearing for the private respondents has submitted that so far as objection with regard to non-filing of three separate writ petitions is concerned, the same was not required since the parties to the dispute were common in all the three cases and the order passed was also a composite order by the Board of Revenue. 5 Further, three separate sets of court-fee stamps were deposited alongwith the writ petition, and this objection was not pressed before the learned Single Judge as it is clear from the order itself and moreover the matter having reached this stage, such objection is not fit to be entertained. He further submits that as far as the non-substitution with regard to petitioner no.1 is concerned, an interlocutory application being IA No.2634 of 2009 was filed in time in the writ case for substitution of the heirs of petitioner no.1, and even otherwise, since the estate of petitioner no.1 was already represented by his wife and son, who were petitioners no.2 and 3 in the writ, there was no question of any abatement. He has lastly submitted that all the three revenue authorities have noticed the fact that transfers were made for the purposes of building a house and that the writ petitioners were in possession of the lands in question right from the year 1984 when the said sale deeds were executed in their favour and thus after being in possession for almost 27 years, it would not be proper to direct them to re-convey the lands in favour of the appellants. In support of his contentions, he has relied upon the decisions, which have also been noticed in the order of the learned Single Judge, rendered in the case of Vidya Prasad Singh vs. State of Bihar, reported in 2010 (2) PLJR 17, Urmila Devi vs. State of Bihar, reported in 1998(1) PLJR 758, and Gajadhar Prasad Choudhary vs. State of Bihar, reported in 1994 Supp.(1) SCC 114. 5. After hearing learned counsel appearing for the parties at length, we are of the considered opinion that the appeal deserves to be allowed for the following reasons. 6 6. The findings recorded consistently by all the three revenue authorities is to the effect that the land comes within the purview of the Act and this fact has not been seriously contested by any of the parties. Further, it is also not in dispute that the appellants are adjoining raiyats of the lands in question. This being the admitted factual position, the claim of the appellants for pre-emption under Section 16(3) of the Act was legally enforceable and sustainable. In this connection it would be relevant to refer to the decision of the Hon’ble Apex Court in the case of Sheoji Mahto (supra), wherein it has been held that once the conditions of Section 16(3)(i) are satisfied, the appellants are entitled to pre-emption of the land. This view has further been reiterated in the case of Suresh Prasad Singh (supra), the relevant being at paragraph-12. 7. The learned Single Judge has relied upon the decision rendered in the case of Vidya Prasad Singh (supra). We humbly differ with this interpretation of the said judgment in as much as the said judgment has proceeded on the presumption that pre-emption is a weak right which is no more a good law in view of the decision rendered by the Hon’ble Apex Court in the case of Suresh Prasad Singh (supra), wherein at paragraph-3 it has been held that pre- emption under statutory law is mandatory and not discretionary and thus it being considered a weak right is not correct, and also the fact that in the present case there is a categorical finding that the land is outside the city limits and further, as has been stated in the memo of appeal, the sale deed itself mentions that the nature of the land as per khatian is agricultural land (the relevant portion of the khatian to this 7 effect has also been annexed as Annexure-1 to the memo of appeal). Coming to the next decision relied upon by the learned Single Judge in the case of Gajadhar Prasad Choudhary (supra) to the effect that the purchaser has remained in possession of the land over a long time and thus it would not be proper to dispossess the person concerned, we humbly differ with the learned Single Judge as the decision rendered in the said case was under Article 142 of the Constitution, and also for the reason that in the case of Suresh Prasad Singh (supra) the Hon’ble Apex Court in paragraph-13 has clearly held as follows:- “..... Thus, even if there has been a long lapse of 19 years, the High Court could not have rejected the claim of the appellant for pre-emption when the claim was recognized by the statute, had been lodged in accordance with the statute and within the time prescribed by the statute and in the manner provided by the statute.” 8. Coming to the last decision relied upon by the learned Single Judge in the case of Urmila Devi vs. State of Bihar, rendered by a learned Single Judge of this Court, as reported in 1998(1) PLJR 758, wherein it has been held that when the land in question is situated in municipal area, it may be presumed and it is not agricultural land, the said decision has also gone on the presumption that pre-emption is a weak right. After going through the said decision, we once again humbly differ from the view taken by the learned Single Judge as relied upon in this case, for the reason that in the case of Suresh Prasad Singh (supra) it has been held that pre-emption is not a weak right and coupled with the findings of the revenue authorities to the effect that the land is outside the city limit. Thus, the said judgment does not support the case of the writ petitioners. 8 9. Upon consideration of the rival contentions and the decisions referred to hereinabove, we have no hesitation in holding that the appellants, being the adjoining raiyats, and the land in question being covered under the definition of `land’ under Section 2(f) of the Act, their application under Section 16(3) of the Act was maintainable, specially in view of the concurrent findings of facts to this effect by the three revenue authorities, and thus the applications filed for pre-emption have been rightly allowed. 10. In the result, we disagree with the order of the learned Single Judge, and the appeal is accordingly allowed. However, in the facts and circumstances of the case, there shall be no order as to cost. S K Katriar, J. (Ahsanuddin Amanullah, J.) ( S K Katriar, J.) Patna High Court, Patna The 18th of August 2011 NAFR/ mrl