IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16039 of 2005 Simirati Devi W/o Shyamlal Ram, R/o Vill- Rampur, P.S. Jamhore, Dist-Aurangabad ---Petitioner Versus 1. The State of Bihar 2. The Additional Member, Board of Revenue, Old Secretariat, Patna 3. The District Magistrate, Dist-Aurangabad. 4. The Deputy Collector Land Reforms, Dist-Aurangabad. 5. Budheshwar Ram @ Budheshwar Prasad, S/o Late Gopi Ram R/o vill- Rampur, P.S. Jamhore, Dist. Aurangabad. --Respondents. ----------- 03 28.04.2011 Petitioner is purchaser. She is raising a grievance with respect to the resolution dated 20.10.2005 (Annexure-7) passed in case no. 34 of 2005 whereby the revision preferred by the pre- emptor (respondent no.5) was allowed and the claim of pre- emption was upheld. Background facts leading to the present case are as under:- On 28.06.2004, 9 ½ decimals appertaining to Khata no. 27, Plot no. 195, was/were vended in favour of the petitioner by a registered sale deed (Annexure-1). Pre-emptor finding himself to be adjoining raiyat of the subject sale filed a proceeding under Section 16(3) of the Bihar Land Reforms ( Fixation of Ceiling Area and Acquisition of Surplus Land ) Act, 1961 ( for short the Act) giving rise to L.C. case no. 9 of 2004-05. On notice, the purchaser/ writ petitioner appeared and filed response/reply resisting the claim of pre-emption. The vendor did not appear and file any reply supporting the case of either party. On a consideration of the matter, the respondent Deputy Collector Land Reforms by a proceeding dated 09.11.2004 (Annexure-3) allowed 2 the claim of pre-emption raised by respondent no.5. Aggrieved by the aforesaid order, the purchaser/petitioner preferred appeal vide L.C. Appeal no. 148 of 2004-05. Appellate Court/Authority by a proceeding dated 07.12.2004 (Annexure-5) allowed the appeal and set aside the order of the respondent D.C.L.R. Aggrieved over the said order, the respondent No.5 preferred revision which was allowed by the impugned resolution leading to filing of the present writ case. Learned counsel for the petitioner while assailing the revisional order submits that the case of pre-emptor has been allowed by the revisional Court after having found that he has better claim than that of the purchaser. It is submitted that this logic is alien to the proceeding under Section 16(3) of the Act. Admittedly the purchaser/writ petitioner is shown as boundary raiyat of the vended plot no. 195 on the Eastern side. There may be a situation where the pre-emptor may have adjoining lands on three sides of the vended plot yet considering the scope of the preferential treatement given to a pre-emptor under the scheme of the Act as engrafted under Section 16(3) thereof the claim of pre- emption would fail once it is shown and demonstrated that the purchaser is herself/himself adjoining raiyat of the vended plot. Right from AIR 1958 SC 838 ( Bishan Singh v. Khazan Singh) the Supreme Court as well this Court have consistently held that although right of pre-emption is a statutory right but in essence itself a weak right since it seeks to create a clog on the right to acquire land/property. 3 Learned counsel for the petitioner referred to few judgments of this Court to show that once it is found and held that the purchaser is himself adjoining raiyat of the plots purchased by him then the claim of pre-emption, howsoever superior they may be, has to fail. Learned counsel appearing on behalf of the respondents, on the other hand, supported the impugned resolution. It is contended that the respondent/pre-emptor had land on two sides of the vended plot/land. It has been found by the revisional Court also. It is, thus, submitted that the pre-emptor has been able to establish his superior claim over the land in question and as such the order impugned may not be interfered with by this Court. It is next contended that although the vendor was made party respondent up to the stage of revision but in the present writ proceeding she has not been impleaded as party respondent as such the writ application be dismissed on the said ground alone. He relies on a judgment of this Court since reported in 1985 BBCJ 458 (Raja Ram Singh vs. The State of Bihar & Ors.)(para 10). I have considered the submissions advanced on behalf of the parties. From perusal of the order impugned this much is evident that the writ petitioner/purchaser herself is adjoining raiyat in respect of the vended plot on the Eastern side being owner of plot no. 197. The sale deed in respect thereof is already on record as Annexure-1. The sale deed which became subject matter of the present proceeding reflects the aforesaid position. In Smt. Dulhin Basmatia @ Basmato Devi ( Supra), the Division 4 Bench of this Court in para 6 of the report has held as under:- “6. It is well established that right of pre-emption is a weak right which is defeatable by all legitimate means particularly at the instance of those who themselves claim equal rights. In Smt. Sudama Devi & Ors. V. Rajendra Singh & Ors (AIR 1973 Patna 199 = 1973 PLJR 534) after referring to the judgment of the Supreme Court in Bishan Singh v. Khazan Singh (AIR 1958 Supreme Court 838) dwelling upon the nature and scope of right of pre-emption the similar view was taken.” Dwelling upon the onus of the pre-emptors in such matter this Court in the case of Ram Pravesh Singh vs. The Additional Member Board of Revenue and others reported in 1995(1) PLJR 764 in para 7 held as under:- “7. Having regard to the nature of the right of pre-emption under the Act, the pre- emptor in order to succeed must make out a foolproof case. The transferee need only point out the loopholes. They do not stand on the same footing. The pre-emptor must show that he is either the co-sharer or the adjoining raiyat of all the plots, where the land comprises of more than one plot, which the transferee is not. The transferee, on the other hand, may successfully resist the claim if he is able to show that he is adjoining raiyat of some of the plots, even one of them, and he cannot, therefore, be made to reconvey those plots except where the transfer of other plots can be identified as separate transaction…...” Learned counsel for the respondents has not been able to submit with reference to the provision(s) of the Act or the case law to show that if the pre-emptors are adjoining raiyats on more than one sides of the vended land/plot then the claim of pre-emption is required to be upheld treating the superior claim of the pre-emptor. 5 On the contrary, Courts have consistently held that if the purchaser himself is adjoining raiyat of at least one of the vended plot then the claim of pre-emption would fail. It has been submitted on behalf of the respondents that vendor of the land is not party respondent in the present proceeding and as such the writ petition is fit to be rejected. On the contrary, it has been submitted on behalf of the petitioner that the vendor was made party in the proceeding by the pre-emptor and in spite of service of notice she did not appear and contest the same. At the appellate stage, an affidavit, affirmed by the vendor, was filed on behalf of the purchaser declaring therein that she had vended subject land in favour of the purchaser. It has, thus, been submitted that no prejudice is caused to the pre-emptor in absence of vendor not made party respondents in both proceeding. The said factum has not been disputed by the learned counsel for the respondents. Reliance placed by learned counsel for the respondents on the ratio laid down in Raja Ram Singh (Supra) (para 10) in my view, will not be applicable to the facts and circumstances of the case. A duty is caste on the pre-emptor to implead the vendor as party respondent to the pre-emption proceeding and thereby affording the Court an opportunity to adjudge whether a sale in the eye of law has taken place or not which would enable the Court to proceed with further consideration of the matter. If at the initial stage no such opportunity is granted to the vendor by impleading him as party respondent the application would fail as serious prejudice in law 6 would be caused to the party to the said proceeding. In the setting of the facts of the present case, in my view, said proposition shall not be applicable. The purchaser has already stepped into the shoes of the vendor. The vendor did not appear and file any show cause/reply in this proceeding up to the revisional stage. In these fact situations, this Court holds that non impleadment of the vendor in the writ proceeding shall not render the present application incompetent. For the reasons discussed above, this application is allowed. The resolution dated 20.10.2005 passed by respondent Additional Member, Board of Revenue, Bihar in case no. 34 of 2005 (Annexure-7) is quashed and set aside. There shall be no order as to costs. Sym/pkj (Kishore K. Mandal, J.)