IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15219 of 2006 HARIHAR YADAV & ORS Versus THE STATE OF BIHAR & ORS ----------- 02/ 07.8.2008 Heard learned counsel for the petitioners and the State. 2. Petitioners are the preemptors. They are aggrieved by the order dated 5.4.2006, passed by the Addl. Member, Board of Revenue in Case No. 236 of 2004, as contained in Annexure-3 whereunder appellate order dated 21.8.2004, passed in Land Ceiling Appeal Case No. 71 of 2003-04, Annexure-2 to this application was set aside on various grounds. 3. It appears, preemptors’ claim was rejected by the Collector under the Act i.e. the DCLR under order dated 23.8.2003, Annexure-1 passed in Land Ceiling Case No. 16 of 2002 on the ground of pendency of civil suit assailing the validity of the sale deed, whereafter they filed Appeal No. 71 of 2003-04, which was allowed under orders dated 21.8.2004, Annexure-2 against which private Respondent no.5 filed Board Revision Case No. 236 of 2004 asserting that the Appeal Case No. 71 of 2003-04 was time barred and without condoning the delay the same was admitted and ultimately allowed under orders dated 21.8.2004. The Addl. Member, Board of Revenue, while passing order dated 5.4.2006, has taken note of the said fact in paragraph 2 of his order. 4. During the hearing of this writ application, attention of the learned counsel for the petitioners was invited to the aforesaid aspect of the matter, then the counsel submitted that such statement in - 2 - the order of the Addl. Member, Board of Revenue appears to be an error of record, but no such averment has been made in the petition that Appeal No. 71 of 2003-04 was not time barred and statement to the contrary made by the learned Addl. Member, Board of Revenue in the order dated 5.4.2006 is error of record. In the circumstances, I proceed on the basis that the Land Ceiling Appeal No. 71 of 2003-04 was admitted as also allowed under orders dated 21.8.2004 without condoning the delay. If the appeal was time barred, then without condoning the delay, the same could not have been admitted or allowed, as such, order allowing the appeal dated 21.8.2004, Annexure-2 is wholly without jurisdiction. Besides, Addl. Member, Board of Revenue has also given reasons in support of his order for defeating the claim of the preemptors, as such, when the appeal filed by the preemptors against the order defeating their claim was time barred and the claim for preemption has also not been found to be meritorious by the Addl. Member, Board of Revenue under order dated 5.4.2006, Annexure-3, the High Court in writ jurisdiction is not inclined to issue writ of certiorari which is a discretionary remedy and this Court does not issue such a writ only because it is lawful to do so. Reference in this connection may be made to the case of Ram Naresh Sharma Vrs. Vijay Sharma & others, reported in 1993(2) PLJR 364 (DB) paragraph 17. It may not be out of place to mention that preemption is a weak right and can be defeated by all legitimate means as also on account of laches on the part of the preemptors, as has been held by the Hon’ble Supreme Court in the case of Bishan - 3 - Singh and others Vrs. Khazan Singh and another, reported in AIR 1958 Supreme Court 838. 5. In view of my discussion above, this writ application is dismissed. AFR Arjun/ (V.N. Sinha, J.)