Calcutta High Court (Appellete Side)
Sk. Abdul Odud Ali vs Emanulla Khan And Others on 16 July, 2021
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 785 of 2021
Sk. Abdul Odud Ali
Vs.
Emanulla Khan and others
For the petitioner : Mr. Rabindranath Mahato,
Mr. Aritra Shankar Ray
For the opposite party nos. 1 and 2 : Mr. Smim Ahammed,
Mr. Arka Maiti,
Ms. Saloni Bhattacharyya
Hearing concluded on : 14.07.2021
Judgment on : 16.07.2021
Sabyasachi Bhattacharyya, J:-
1. The short question which falls for consideration is, whether a pre-
emption application under Section 8 of the West Bengal Land Reforms
Act, 1955, on the ground of co-sharership, can be rejected at the
outset as not maintainable if the application is accompanied by a
deposit of an amount less than the consideration shown in the sale
deed sought to be pre-empted, along with the statutory interest of
10%, on the allegations that the price shown in the deed was inflated
and the actual consideration money paid according to the pre-emptor
is the lesser amount deposited with the pre-emption application and
2
that no notice under Section 5 of the said Act was served on the co-
sharer/pre-emptor.
2. Learned counsel for the petitioner submits that the trial court acted
without jurisdiction in rejecting the application for pre-emption, filed
on the ground of co-sharership, at the outset as not maintainable. In
the application under Section 8 of the 1955 Act, the pre-
emptor/petitioner had specifically challenged the amount shown as
consideration in the sale deed-in-question on the ground that it was
inflated and had deposited the actual amount of consideration
according to his version, along with statutory interest of 10%, within
the statutory period. The pre-emption application was also filed within
limitation.
3. Learned counsel seeks to distinguish the ratio laid down by the
Supreme Court in the recent judgment, Barasat Eye Hospital and
Others Vs. Kaustabh Mondal, reported at (2019) 19 SCC 767, wherein
it was held that the deposit of the full consideration money as shown
in the sale deed, along with statutory interest of 10 %, has to be paid
along with the pre-emption application within limitation, by laying
stress on the observations made by the Supreme Court in paragraph
no. 23 of the said report. In the said paragraph, it was observed, inter
alia:
"... In fact, the effect of the right to pre-emption is that a private
contract inter se the parties and that too, in respect of land, is
sought to be interfered with, and substituted by a purchaser who
fortuitously has land in the vicinity to the land being sold. It is not
a case of a co-sharer, which would rest on a different ground."
3
4. It is argued that such observation was the premise of the ratio next
laid down by the Supreme Court in the following paragraphs and,
thus, the ratio should be restricted to pre-emption applications filed
on the ground of vicinage. The petitioner's application for pre-emption
having been filed on the ground of co-sharership, which has been put
on a different footing by the Supreme Court, the proposition laid down
in the above report is not attracted to the present case.
5. As such, it is submitted by learned counsel for the petitioner, the trial
court misinterpreted the proposition and erroneously applied it to the
instant case, thereby vitiating the impugned order as bad in law and
without jurisdiction, thus liable to be set aside.
6. Learned counsel for the pre-emptees/ opposite parties no. 1 and 2
counters such argument by contending that a stray sentence in
paragraph no. 23 of Barasat Eye Hospital (supra) cannot be read in
isolation and there were several other grounds for the Supreme Court
to arrive at the proposition at issue. The conjoint effect of Sections 8
and 9 of the 1955 Act, construed in the backdrop of the history of the
law of pre-emption in India, was discussed by the Supreme Court.
7. Learned counsel argues that the ratio in the said cited judgment of the
Supreme Court has laid down the general law in respect of all
applications for pre-emption under Section 8 of the 1955 Act and did
not draw any distinction in that regard between such applications on
the ground of co-sharership and of vicinage.
4
8. In this context, learned counsel for the opposite party nos. 1 and 2
cites two unreported co-ordinate Bench judgments of this Court in the
following matters:
C.O. No. 2461 of 2007 (Smt. Kamala Rani Roy & Ors. vs. Sri Sambhu
Sen & Ors.), rendered by Kausik Chanda, J. ; and
C.O. No. 2311 of 2006 (Golam Kibria Mallik vs. Sk. Amir Ali & Ors.),
delivered by Biswajit Basu, J.
9. In both the aforesaid judgments, the respective learned Single Judges
followed the ratio laid down in Barasat Eye Hospital (supra).
10. In paragraph no. 25 of Kamala Rani Roy (supra), the learned Single
Judge recorded that a similar argument as that made in the instant
revision, was advanced by learned counsel for the pre-emptor.
However, in paragraph no. 26, the Hon'ble Justice Chanda observed
that though His Lordship found the argument to be very attractive,
His Lordship was unable to persuade himself to accept such
contention, since it did not appear that the Supreme Court expressly
made any such distinction between a co-sharer and a contiguous
owner for the purpose of deposit to be made under Section 8 of the
1955 Act and that it was not permissible to construe otherwise by way
of making any logical deduction from any observation made in the
said judgment.
11. In Golam Kibria Mallik (supra), the revision also arose, as in the
present case, from a pre-emption application on the ground of co-
sharership. The Hon'ble Justice Basu, without much ado, was pleased
to observe simpliciter that the Supreme Court had held in Barasat
Eye Hospital (supra) that, to maintain an application under Section 8
of the said Act, the preemptor is required to deposit the entire
consideration money, and that being the position, His Lordship did
not find any reason to interfere with the order of the appellate court
below, which had affirmed the trial court's order dismissing the pre-
emption application.
12. Upon considering the judgments cited by counsel for both the
contesting parties and the arguments advanced on Sections 8 and 9 of
the 1955 Act by counsel, I arrive at the following decision:
13. A proposition laid down in a judgment of a superior forum, in this
case the Supreme Court in Barasat Eye Hospital (supra), has
precedentiary and binding value only in the factual and legal context
of the same and ought not to be followed blindly.
14. The very premise of the ratio of Barasat Eye Hospital (supra) necessary
follows from the observations made by the Hon'ble Supreme Court in
paragraph no. 23 thereof, which categorically distinguishes the
respective footings of a co-sharer and a contiguous owner. The
finding, that pre-emption is a secondary and "weak right", was the
plinth of the proposition that such right curtails the superior rights of
a lawful owner and hence ought to be strictly construed. The mandate
of Sections 8 and 9 of the 1955 Act were interpreted in such light.
Therefore paragraph no. 23 was an integral component of the ratio of
the said report. The previous discussions by the Supreme Court on
the historical background of the right of pre-emption is qualified in
the present case by the crystallization of such right as a statutory one
under Section 8 of the West Bengal Land Reforms Act, 1955 and not
merely an equitable right. Since the right of pre-emption has been
conferred by the said Act, the provisions thereof ought to be looked
into for a proper and meaningful interpretation of the nature of the
right.
15. In paragraph no. 23 of Barasat Eye Hospital (supra), the Supreme
Court observed that the effect of the right to pre-emption is that a
private contract inter se the parties and that too, in respect of land, is
sought to be interfered with, and substituted by a purchaser who
"fortuitously has land in the vicinity to the land being sold". The next
sentence in the said paragraph more explicitly expressed that "It is not
a case of a co-sharer, which would rest on a different ground". Such
words are strong enough to convey the purport of the proposition laid
down ultimately.
16. It is to be considered here that pre-emption under Section 8 of the
1955 Act is not a mere customary or secondary right in common law
or equity but a specific statutory right conferred by a special statute
governing the field. Section 3 of the 1955 Act, which was not
considered either by the Supreme Court or any of the learned Single
Judges, clearly provides that the provisions of the said Act shall have
effect notwithstanding anything inconsistent therewith in any other
law for the time being in force "or in any custom or usage or contract,
express or implied, or agreement or decree or order or decision or
award of a court, tribunal or other authority. The said provision
specifically stipulates that the rights conferred under the 1955 Act
(which includes the right of pre-emption under Section 8) shall
override even contracts, express or implied, or agreements, amongst
other things. Hence, the statutory right of pre-emption under Section
8 of the Act transcends the character of a weak or secondary right, as
opposed to the general right of pre-emption under the Muhammedan
Law, and even prevails over personal contracts, express or implied,
and agreements.
17. Delving further into the discussions of the Supreme Court in Barasat
Eye Hospital (supra), two aspects catch the eye at first glance. Bishan
Singh's case, which was relied on by the Supreme Court for a general
exposition of the right of pre-emption, cannot be attracted to a specific
statutory right with overriding effect over contracts, as in Section 8,
read with Section 5, of the 1955 Act.
18. On the other hand, Kedar Mishra v. State of Bihar, another essential
component of the Supreme Court's rationale, was rendered in the
context of the Bihar Land Reforms (Fixation of Ceiling Area and
Acquisition of Surplus Land) Act, 1961. Section 16 (3), as quoted in
paragraph no. 14 of Barasat Eye Hospital (supra), has two major
distinctions from Section 8 of the West Bengal Land Reforms Act,
1955.
19. First, the Bihar Act provision-in-question confers a right to apply for
the transfer of the land to the pre-emptor "on the terms and
conditions contained in the said deed", that is, the deed of sale, the
pre-emption of which is sought. Such an expression is conspicuous by
its absence in the West Bengal Act, thereby lending an entirely
different complexion to the right conferred under Sections 8 and 9 of
the West Bengal Act of 1955. If the transfer sought by the pre-emptor
has to be on the exact terms and conditions contained in the deed
itself, then pre-emption can be granted only on such terms, which
includes the purchase price as shown in the deed, whatever be the
assessment of the actual consideration by the pre-emptor.
20. Secondly, the Supreme Court itself observed in paragraph no. 16 of
Barasat Eye Hospital (supra) that it was conscious of the fact that the
proviso to Section 16 (3) (i) of the Bihar Act begins with a negative
connotation, that is, "no such application shall be entertained".
Section 8 and 9 of the West Bengal Land Reforms Act, 1955 is not
couched in such negative language, which prima facie does not give
rise to the presumption that such provision of deposit of consideration
money is mandatory at the inception of the pre-emption application.
21. Thirdly, the relevant portions of the Bihar Act, quoted by the Supreme
Court, do not have any provision for inquiry into the actual
consideration money exchanged for the sale under pre-emption and
subsequent opportunity to the pre-emptor to deposit the excess or to
get refund of excess amount, if deposited.
22. Section 9 of the 1955 Act, however, specifically provides for an enquiry
after the issuance of notice on the pre-emptees and envisages
subsequent direction on the applicant to deposit such further sum, if
any. Moreover, Section 9 also casts the initial obligation on the
transferee (pre-emptee) or any person interested to appear within the
time specified in the notice and "prove the consideration money paid
for the transfer", followed by the suffix "and other sums", if any,
"properly paid by him in respect of the lands" which expression is
merely followed by the corollary "including any sum ..... ". Hence, the
burden of proof of actual consideration money is on the transferee,
and not the applicant, particularly when the applicant specifically
challenges the veracity of the consideration appearing in the sale
deed, as in the instant case.
23. Another remarkable distinction between the Bihar Act, which was
considered by the Supreme Court in Barasat Eye Hospital, and the
West Bengal Act is that the former contemplates that no such
application "shall" be entertained unless the "purchase money"
together with ten per cent thereof is deposited "within the said period",
whereas the latter Act of 1955, in Section 8 thereof, merely
contemplates that the applicant shall apply to the Munsif having
territorial Jurisdiction for transfer of the said portion or share of the
plot of land to him, on deposit of the "consideration money" together
with a further sum of ten per cent thereof.
24. The expression "purchase money", read in conjunction with the rider
that the transfer of the land applied for by the pre-emptor shall be "on
the terms and conditions contained in the said deed" and the negative
language in which Section 16 (3) (i) of the Bihar Act is couched,
unerringly indicate that the purchase money to be deposited "within
the prescribed period" is equivalent to the amount of consideration
shown in the sale deed itself, since the final relief is restricted to
transfer to the pre-emptor "on the terms and conditions contained in
the said deed".
25. On the other hand, Section 8 of the 1955 Act of West Bengal
contemplates mere "transfer", not necessarily on the same terms and
conditions as the sale deed. Moreover, Section 9 of the 1955 Act
provides sufficient leverage for subsequent deposit of the actual
consideration money, as ascertained upon enquiry, that too, only on
the transferee or any other interested person proving the actual
consideration amount. No time limit can, thus, be attached to the
deposit of the consideration money before the actual price is
ascertained upon such an enquiry.
26. Thus, the term "consideration" used in Section 8 of the 1955 Act is
diluted by the provisions of Section 9, which envisages proof by the
transferee of the actual consideration money and an ensuing enquiry
to ascertain the actual consideration amount. This gives a leeway to
the pre-emptor to dispute the consideration money paid and, if
disclosed in the pre-emption application itself, such dispute justifies
the deposit of an amount equivalent to the actual consideration as per
the petitioner's version, with statutory interest, subject to subsequent
directions on the pre-emptor to deposit any further amount, if found
necessary by the court.
27. Hence, the ratio laid down in Barasat Eye Hospital (supra), upon a
meaningful reading of the entire judgment, in particular paragraph
no. 23 thereof, clearly distinguishes the strength of the respective
rights of pre-emption of a "fortuitous" raiyat holding land in the
vicinity and that of an existing co-sharer of the property.
28. We cannot, in this context, lose sight of the initial phrase used in
Section 8 as a pre-requisite for exercising the right of pre-emption,
that the right of pre-emption only arises if a portion or share of a plot
of land of a raiyat is transferred to "any person other than a co-sharer
of a raiyat", thus conferring a preferential right of purchase on the co-
sharer which is not a mere "secondary right" as distinguished by the
Supreme Court, but a primary right as well, which is not as weak as it
appears at the first blush.
29. Such aspects did not fall for consideration before the Supreme Court
in Barasat Eye Hospital (supra); hence, the proposition laid down
therein is not binding as precedent in case of a co-sharer/pre-emptor.
It can at best be restricted to contiguous owners, labelled as
"fortuitous" by the Supreme Court, having merely a secondary right of
pre-emption, which is weak, as opposed to a prior right of purchase,
which is inherent and primary, as contemplated in paragraph no. 11
of Barasat Eye Hospital (supra).
30. The primacy of the right of a co-sharer is further bolstered by Section
5 (4) of the 1955 Act, which mandates a prior notice to be served on
co-sharers of the transferred land as a pre-requisite of such transfer.
31. Since the petitioner in the present case has specifically pleaded
absence of such notice in the pre-emption application, his right of pre-
emption on the footing of a co-sharer gains primacy as opposed to the
secondary right of a contiguous owner claiming pre-emption on the
basis of fortuitous vicinage, which has been construed as a "weak
right" by the Hon'ble Supreme Court in Barasat Eye Hospital (supra).
32. Hence, the ratio laid down by the Supreme Court in Barasat Eye
Hospital (supra) has to be seen in proper perspective, in the context of
the entire judgment and the ultimate proposition cannot be divorced
from the reasoning given by the Supreme Court itself to arrive at such
proposition in the said report.
33. An additional factor which ought to be considered is that the
consistent view of this court, that Section 5 of the Limitation Act is not
applicable to a pre-emption application, is on the basis of such
proceeding being of an original nature and has the trappings of a suit.
Since Section 5 of the Limitation Act is not applicable to suits, but to
applications and appeals, it was held to be inapplicable to a pre-
emption proceeding, which is akin to a suit.
34. However, the deposit contemplated under Sections 8 and 9 of the
West Bengal Land Reforms Act, 1955 cannot be placed on an equal
footing as the pre-emption application itself. Thus, hypothetically, if
an application is filed for acceptance of late deposit of such
consideration amount, the same is an "application" and not a "suit"
within the contemplation of Section 5 of the Limitation Act. Although
such deposit is a pre-requisite of issuance of notice, the expression
"consideration" need not, in cases where a dispute is raised in the pre-
emption application regarding the veracity of the price shown in the
sale deed itself, be strictly construed as the "price shown in the sale
deed" by introducing such words into the statute, which have been left
out by the Legislature in its wisdom, unlike the Bihar Act, which has
mandated even the final relief to be restricted to the terms and
conditions of the sale deed and is couched in negative language.
35. Hence, the question which has come up for consideration before this
court, as to whether a pre-emption application under Section 8 of the
West Bengal Land Reforms Act, 1955, on the ground of co-sharership,
can be rejected at the outset as not maintainable if the application is
accompanied by a deposit of an amount less than the consideration
shown in the sale deed sought to be pre-empted, along with the
statutory interest of 10%, on the allegation that the price shown in the
deed was inflated and the actual consideration money paid according
to the pre-emptor is the lesser amount deposited with the pre-emption
application as well as that no notice under Section 5 of the said Act
was served on the co-sharer/pre-emptor, is answered in the negative.
36. However, judicial decorum demands that I stop short of allowing the
instant application under Article 227 of the Constitution of India,
thereby setting aside the order impugned herein, since my view, with
utmost humility, is contrary to the interpretation of Barasat Eye
Hospital (supra) by two previous co-ordinate Benches, 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.).
37. Hence I resort to the appropriate course of action according to me and
refer the matter to the Hon'ble the Chief Justice (Acting) for
assignment before a larger Bench of this Court to decide the following
question:
"Whether a pre-emption application under Section 8 of the West
Bengal Land Reforms Act, 1955, on the ground of co-sharership, can
be rejected at the outset as not maintainable if the application is
accompanied by a deposit of an amount less than the consideration
shown in the sale deed sought to be pre-empted, along with the
statutory interest of 10%, on the allegation that the price shown in the
deed was inflated and the actual consideration money paid according
to the pre-emptor is the lesser amount deposited with the pre-emption
application and that no notice under Section 5 of the said Act was
served on the co-sharer/pre-emptor".
38. Further judgment is reserved in the matter till resolution of such
question by the proposed larger Bench.
39. Both parties are restrained by an order of injunction from
transferring, alienating, encumbering and/or creating any third party
interest in respect of the property, which is the subject-matter of the
sale deed sought to be pre-empted, till disposal of this revisional
application.
40. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite
formalities.
( Sabyasachi Bhattacharyya, J. )
