IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 4129 of 2005 SHYAM BIHARI SINGH & ANR Versus THE STATE OF BIHAR & ORS ----------- 5 07.07.2008 The present writ application arises from the resolution of the Board of Revenue in Revision Case No 214 of 2004 disposed of on 07.02.2005 wherein the order rejecting the claim of pre-emption in terms of Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act which was affirmed by the appellate Court has been reversed. The petitioners are the vendees whose purchases have been sought to be pre-empted by respondents No 4 and 5. Respondents 4 and 5 have appeared and filed counter affidavit. Parties have been heard and with their consent, the writ application is being disposed of at this stage itself. On behalf of petitioners, it is submitted that the lands in question were Firni lands (land immediately adjoining urbanized area likely to be used for urbanization). Being Firni lands when the consolidation proceedings of agricultural holdings were taken up, these lands were exempted and fell outside the purview of consolidation of agricultural holdings. On these facts which were found and accepted by the original authority and the appellate authority, it was submitted that the provisions of Section 16 (3) of the Act would not apply as the Act applied to agricultural holdings. On behalf of respondents, it was submitted that these lands, as per revisional survey, were shown to be agricultural lands and that consolidation proceedings have now been put 2 in abeyance for the entire village. It is further submitted on behalf of respondents that the Board of Revenue rightly relied on the revisional survey entry and held the lands to be agricultural lands liable to be pre- empted. Having considered the matter, in my view, when the two original authorities went into the question of fact and recorded concurrent findings of fact that the land has been excluded as Firni land under the consolidation proceeding, therefore, the private respondents could not exercise their right in terms of Section 16 (3) of the Act. It was not open to the Board of Revenue in revision to take a different view of the matter ignoring this concurrent finding of fact in the revisional jurisdiction merely relying on revisional survey entry which is of several decades back as against findings of consolidation authorities rendered recently. It is also well established that pre- emption is a very weak right. In that view of the matter, in my view, the resolution of the Board of Revenue cannot be sustained and is liable to be set aside and is set aside as such. Shri Bindhyakeshri Kumar, learned Senior Counsel appearing for the private respondents raised an objection as regards the maintainability of writ petition on the ground that petitioners’ vendors were not made parties to the writ petition. They were necessary parties and in absence thereof, the writ petition is not maintainable. In my view, petitioners are claiming no relief as against their vendors. Their relief is as against respondents No 4 and 5 who have sought to pre-empt the petitioners’ purchase. The dispute is essentially between the vendee 3 and the pre-emptor, the vendor has no role to play in the present circumstances. The situation may have been different where the pre- emptor was seeking a relief of pre-emption in the present proceedings before this Court inasmuch as if the pre-emption application are to be allowed by this Court then a direction would be necessary to be issued to the vendors to execute the sale deed and accept the consideration as statutorily fixed but that eventuality does not at all arise at all in the present proceedings. Thus, the objection is misconceived and is rejected. The writ application is, thus, allowed and the resolution of Board of Revenue is, thus, set aside. M.E.H./ (Navaniti Prasad Singh)