IMPORTANT POINT
The court emphasized that the right to pre-emption is weak in law and can be declined in appropriate cases.

ORDER :

I.A. No. 5996 of 2020

1. This interlocutory application has been filed seeking condonation of delay of 14 days in filing the present Letters Patent Appeal.

2. Having considered the cause shown by the appellants, we are inclined to condone the delay of 14 days in filing the present Letters Patent Appeal and, accordingly, I.A. No. 5996 of 2020 is allowed.

L.P.A. No. 443 of 2019

3. Abdul Hamid @ Bartu Mian resident of village Uperlotto within PS and district Latehar (respondent no. 4 herein) moved this Court in W.P. (C) No. 759 of 2016 to challenge the revisional order dated 20th July 2015 passed in Land Ceiling Revision Case No. 28 of 2011 by which the orders passed in his favor allowing the application under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (in short Act of 1961) have been set-aside.

4. The writ Court by an order dated 15th February 2019 allowed the writ petition and interfered with the revisional order on the basis of the judgment in Radhe Sharma vs. State of Bihar through District Magistrate and Others, 2009 (4) PLJR 423 to hold that the provisions under Rule 19(3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rule, 1963 are not mandatory.

5. The writ Court has held as under:

“12. This court finds that the provisions contained in Rule 19(3) of the rules of 1963 is basically in the nature of notice being given to the transferor and transferee regarding filing of the application exercising the right of pre-emption by the preemptor. This court finds that the Collector is required to hear and decide the matter after hearing all the parties i.e the transferor and transferee as well as the pre-emptor after issuing notice to the parties under rule 19(4) of the rules of 1963. This court further finds that even if the notice is not issued by the applicant at the stage of filing of the case for pre-emption, the application for pre-emption cannot be allowed without issuing notice to the seller and purchaser of the property and without granting them an opportunity of hearing by the authority.

13. Accordingly, this court is of the considered view that issuance of notice under Section 19(3) of the Rule of 1963 to the transferor and transferee, at the stage of filing the application for pre-emption is directory and not mandatory and further non issuance of such notice under rule 19(3) of the Rules does not prejudice any of the parties, in as much as the parties are required to be heard by the authority before passing any order for which separate notice is contemplated under the provisions of 19(4) of the aforesaid rules of 1963. In aforesaid view of the matter, this court finds that non compliance of sending notice to the seller and purchaser of the property involved in this case under rule 19(3) of the rules of 1963 is not fatal to the application for pre-emption filed by the petitioner.

14. This court further finds that in identical situation, in the case reported in Mohammad Shafique Ahmad vs. State of Bihar, 1995 (1) PLJR 851 which related to issuance of notice under Rule 19(3), the Hon’ble Patna High court has already held that provision therein are merely directory and not mandatory.

15. So far as the judgment reported in AIR 1989 Patna 50 (supra), is concerned ,this court finds that in the said case, transferor was not made a party to the proceeding and it was held that transferor is a necessary party to the proceeding under the provisions of Section 16(3) of the aforesaid Act of 1961 and merely because at the later stage one of the legal heirs of the deceased transferor was made party before the Member, Board of Revenue, the same would not cure the defect. So far as non compliance of Rule 19 is concerned, in this judgment it was also held that in terms of Rule 19(4) of the aforesaid rules of 1963 the Collector is bound to issue notice to the transferor and give an opportunity of show cause to the transferor and also transferee