IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.2300 OF 2002 1. MOST. BAL KUWAR, WIFE OF LATE SUKHDEO SAH 2. MUNNA SAH, SON OF LATE SUKHDEO SAH 3. RAMAWATI DEVI, DAUGHTER OF LATE SUKHDEO SAH ALL RESIDENTS OF VILLAGE BASANT NAGAR, POST OFFICE SAHULI, POLICE STATION M-H NAGAR (HASANPURA), DISTRICT SIWAN ..........................................................................................PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. THE LAND REFORMS DEPUTY COLLECTOR, SIWAN 3. THE COLLECTOR, SIWAN 4. THE ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR, PATNA 5. MOSTT. SARSWATI DEVI, WIFE OF LATE DHONDHA LAL 6. CHANDRAMA MAHTO, SON OF LATE DHONDHA LAL 7. DURGA MAHTO, SON OF LATE DHONDHA LAL 8. BABULAL MAHTO, SON OF LATE DHONDHA LAL 9. DASRATH MAHTO, SON OF LATE DHONDHA LAL 5 TO 9 ARE RESIDENT OF VILLAGE BASANT NAGAR, POST OFFICE SAHULI, POLICE STATION M-H NAGAR (HASANPURA), DISTRICT SIWAN ...................................................................................RESPONDENTS *********** 9 10 /11/2010 The petitioners are the pre-emptors who have challenged the order of Additional Member, Board of Revenue dated 07.07.2000 passed in Revision Case No. 55 of 2005, as contained in Annexure-4. The lands in question is situated in village Basant Nagar, Police Station M-H Nagar (Hasanpura) in the district of Siwan, appertaining to Khata No. 41, Plot No. 383 and 383/838, measuring 1 katha 16 dhurs. Mostt. Nageshwari executed a sale deed in favour of Dhondha Lal Mahto (now substituted by 2 respondents 5 to 9) on 09.11.1992. The sale deed was registered on 14.09.1996. Thereafter, the petitioners filed an pre-emption application after depositing the consideration amount along with statutory 10 per cent vide challan no. 26, dated 14.12.1996. The pre-emption application was filed on 16.12.1996. The only question in this case is whether the pre-emption application was filed within the time, as it is not disputed that the pre-emptors are boundary raiyats and co-sharers. It is also admitted that the pre- emption application was filed after a delay of one day. The Land Reforms Deputy Collector allowed the pre- emption application on the ground that the petitioners are co-sharers of the vendor. The appeal of the purchasers, the original respondent no. 5 was dismissed on 29.12.1998, whereas the Additional Member, Board of Revenue set aside the orders of the Land Reforms Deputy Collector and the Collector, Siwan on the ground that the application for pre-emption was time barred. Learned Counsel for the petitioners submits that in view of the judgment of this Court passed in the case of Kula Nand Jha vs. The State of Bihar & Others [1998 (2) PLJR 693] and the judgment of the Supreme Court in the case of Krishna Kumar Choudhary vs. Alliance Agro Industries (P) Ltd. and Others [1991 (1) 3 PLJR (SC) 3, the Land Reforms Deputy Collector had the power to condone the delay in filing of the pre-emption application under Section 29 of the Limitation Act. Paragraph 2 of the judgment of the Supreme Court in the case of Krishna Kumar Choudhary, reads as follows:- “We are of the opinion that Section 29 of the Limitation Act applies to the facts and circumstances of this case and that it is now for the Deputy Collector, Land Reforms and the Collector under the Act to consider whether the delay in filing the proceeding should be condoned. Thereafter the Deputy Collector Land Reforms and the Collector under the Act will dispose of the case on the remaining points in accordance with law.” Counsel appearing on behalf of the private respondents, on the other hand, relied on the decision rendered in the case of Gopal Sardar vs. Karuna Sardar [2004 SAR (Civil) 382 SC], wherein the Supreme Court has held that the right of pre-emption conferred under the statutory right is a weak right and Sections 5 and 29 of the Limitation Act would not apply in such cases. After considering both the decisions of the Supreme Court, this Court comes to the conclusion that undoubtedly the statutory right of the pre-emption is a weak right as compared to a citizen’s right to purchase a 4 piece of land. The application for pre-emption should be filed within time. However, it cannot be held by this Court that in no case, can the delay be condoned. In the present case, the delay is of one day and that is also for the reason that the day on which the statutory period of 90 days was expiring, was a Sunday. Thus, the filing of the pre-emption application on the following day cannot be said to be careless act and the preceding Sunday ought to be excluded for the purpose of counting 90 days period. Apart from which, the formalities for filing the pre-emption application i.e. the deposit of the amount was within time. In the circumstances, even if it is held that ordinarily the authorities under the Ceiling Act cannot condone the delay as provided under Section 16 (3) of the Ceiling Act, on the other hand, there can be no doubt about the proposition that this Court can condone the delay in the circumstances mentioned aforesaid. In the result, I find that the order of the Additional Member, Board of Revenue dismissing the revision application on the ground that the pre-emption application was barred by limitation is quashed and the matter is remanded back to the Additional Member, Board of Revenue to decide the case on its own merits. Since, one of the questions that were raised on behalf of the purchaser is that the lands in 5 question are not agricultural lands, it would be proper for the Additional Member, Board of Revenue to get a spot enquiry done in the presence of both the parties. This case is thus remanded to the Additional Member, Board of Revenue, Bihar, Patna on this limited point. This writ application is disposed of with the aforesaid observations and directions. Anand ( Sheema Ali Khan, J. )