AD. 10.
July 14, 2021.
MNS.
C. O. No. 785 of 2021 (Via video conference) Sk. Abdul Odud Ali Vs.
Emanulla Khan and others Mr. Rabindranath Mahato, Mr. Aritra Shankar Ray ... for the petitioner.
Mr. Samim Ahammed, Mr. Arka Maiti, Ms. Saloni Bhattacharyya ...for the opposite party nos. 1 and 2. Learned counsel appearing for the petitioner places reliance on the judgment of the Supreme Court rendered in Barasat Eye Hospital and others Vs. Kaustabh Mondal, reported at (2019) 19 SCC 767, in particular paragraph no. 23 thereof, where the right of preemption has been held to be a weak right and, in the last sentence of the said paragraph, a distinction has been made between the rights of a co-sharer and a contiguous owner.
Learned counsel for the petitioner contends that in view of the premise of the Supreme Court, being the weakness of the right of a contiguous owner, which is not applicable in 2 the case of co-sharer, the ratio laid down in Barasat Eye Hospital (supra) is distinguishable in the present case, where the petitioner sought preemption on the ground of co-sharership, but the trial court, by the impugned order rejected the said application at the outset.
Learned counsel appearing for the opposite party nos. 1 and 2- preemptees cites two unreported judgments respectively passed by other co-ordinate Benches of this Court in C. O. No. 2461 of 2007 (Smt. Kamala Rani Roy & Ors. Vs. Sri Sambhu Sen & Ors.) and C. O. No. 2311 of 2006 (Golam Kibria Mallik Vs. Sk. Amir Ali & Ors.). In the first of the above judgements, a specific objection in tune with the objection taken by the petitioner in the present case was raised, but such question was decided in the negative by the co-ordinate Bench. The Learned Single Judge opined that even in case of a preemption application by a co-sharer, the ratio of Barasat Eye Hospital (supra) holds good.
That apart, learned counsel for the opposite party nos. 1 and 2 places specific reliance on the language of Section 9 of the West Bengal Land Reforms Act, 1955 (in short '1955 Act') which, according to counsel, does not 3 distinguish between the grounds of seeking preemption but apply to all applications under Section 8 of the 1955 Act.
Learned counsel for the opposite party nos. 1 and 2 also places stress on paragraphs 26, 27 and 28 of Barasat Eye Hospital(supra) in order to contend that apart from the distinction between co-sharers and contiguous owners, as held in a stray sentence in paragraph 23 of the judgement, the Supreme Court judgement was passed on several other considerations as well.
As such, it is argued that the same principle was correctly applied by the trial court while passing the impugned order.
Hearing is concluded.
The matter is reserved for judgement.
(Sabyasachi Bhattacharyya, J.) 4