IMPORTANT POINT
Where a right of pre-emption is recognized by statute, it has to be treated as mandatory and not discretionary. The claim does not lapse by afflux of time.

JUDGMENT

A. K. Patnaik, J. —

This is an appeal against the judgment and order dated 19.02.2001 of the Division Bench of the Patna High Court in L.P.A. No. 127 of 2000 (for short ‘the impugned judgment’).

2.The relevant facts briefly are that land measuring 1.30 acres comprising Revisional Survey Plot Nos.1501, 1512, 1513, 1514 and 1527 of Khata No.229 in village Paiga in District Bhojpur in Bihar was sold by Brij Bihari Singh and Rash Bihari Singh to respondent No.1 by a registered Sale Deed on 04.08.1980. Soon thereafter, the appellant filed an application before the Deputy Collector, Land Reforms, Sadar, Arrah, under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (for short “the Act”) claiming hat he was a co-sharer and a boundary raiyat in respect of the land and that the land be transferred to him. The appellant also deposited the purchase money together with 10% extra of the purchase money in accordance with the proviso to Section 16(3)(i) of the Act. The Deputy Collector, Land Reforms, however, rejected the application of the appellant by his order dated 10.02.1981. The appellant thereafter filed an appeal against the order of rejection before the Additional Collector, Bhojpur (Arrah) and by order dated 06.04.1993 the Additional Collector allowed the appeal. The Respondent No.1 challenged the order of the Additional Collector before the Board of Revenue in a revision and the Board of Revenue set aside the order passed by the Additional Collector. The appellant then filed a Writ Petition being C.W.J.C. No.13318 of 1993 and by order dated 06.03.1995, a learned Single Judge of the Patna High Court set aside the order passed by the Board of Revenue and remitted the matter back to the Board of Revenue for reconsideration on the question whether there has been a partition between the appellant and Brij Bihari Singh and Rash Bihari Singh prior to 21.06.1980 and whether the appellant ceased to be a co-sharer in respect of the land. Thereafter, the Board of Revenue again held that the appellant was not entitled to pre- empt under Section 16(3) of the Act and set aside the order of the Additional Collector in the appeal and restored the order of the Deputy Collector dated 10.02.1981 rejecting the claim of pre-emption made by the appellant. Aggrieved, the appellant filed a fresh Writ Petition being C.W.J.C. No.7714 of 1997 before the Patna High Court and the learned Single Judge of the High Court dismissed the Writ Petition by order dated 17.11.1999. The appellant then filed L.P.A. No.127 of 2000 before the Division Bench of the High Court and by the impugned judgment, the Division Bench of the High Court dismissed the L.P.A. of the appellant.

3.Learned counsel for the appellant submitted that the Division Bench of the High Court, while dismissing the L.P.A., has held that the Court cannot ignore two important facts and these are: firstly, that the right of pre-emption is a weak right and secondly, that the vendee has remained in possession for more than twenty years and at this stage the Court was not inclined to interfere with the matter. He submitted that the Division Bench of the High Court failed to appreciate that the right of pre-emption under Section 16(3) of the Act was a statutory right and the appellant had filed an application under Section 16(3) of the Act within three months of the date of registration of the Sale Deed as provided in Section 16(3) of the Act. He cited the judgment of this Court in Shaym Sunder & Ors. v. Ram Kumar & Anr.1 [(2001) 8 SCC 24] in which it has been held that the right of pre-emption under statutory law is mandatory and not discretionary and submitted that the view taken by the High Court that the right of pre-emption is a weak right and should not be enforced so as to disturb the long possession of the respondent No.1 in respect of the land is not correct.

4.Learned counsel for the appellant next submitted that the learned Single Judg