Sri Subrata Bhattacharjee ... vs Abdul Matin Mallick And Others
2021 Latest Caselaw 3960 Cal

                         In the High Court at Calcutta
                          Civil Revisional Jurisdiction
                                 Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                             C.O. No.1153 of 2021

                      Sri Subrata Bhattacharjee (Banerjee)
                                      Vs.
                        Abdul Matin Mallick and others




For the petitioner                           :       Mr. Tanmoy Mukherjee

For the pre-emptee/opposite party no.1       :       Mr. Ranjan Kali

Hearing concluded on                         :       22.07.2021

Judgment on                                  :       27.07.2021


Sabyasachi Bhattacharyya, J:-



1.

The short question which has come up for consideration is the present

case is, whether the executing acted without jurisdiction in directing a

sale deed to be executed in favour of the successful pre-emptors under

Section 8 of the West Bengal Land Reforms Act, 1955 (in short, "the

1955 Act"), as a pre-condition of proceeding further with the

execution case.

2. The facts of the instant lis are:

The revisionist-petitioner and proforma opposite parties no. 2 and 3

filed a pre-emption application under Sections 8 and 9 of the 1955 Act

against the pre-emptee/opposite party no. 1, giving rise to

Miscellaneous Case No. 08 of 2012. The said application was

dismissed by the trial court.

3. On an appeal, bearing Miscellaneous Appeal No. 07 of 2014, being

preferred by the pre-emptors, the Additional District and Sessions

Judge, Kalna, by a judgment and order dated September 1, 2016, set

aside the order of the trial Judge and allowed the pre-emption

application.

4. A co-ordinate Bench of this Court, by an order dated April 17, 2019,

disposed of CO. No. 4266 of 2016, which was taken out against the

order of the appellate court, and affirmed the appellate courts' order of

pre-emption.

5. The present revisionist/petitioner, as one of the successful pre-

emptors put the order into execution, thereby giving rise to Title

Execution Case No. 01 of 2019, before the Civil Judge (Junior

Division) at Kalna. In the execution case, the petitioner prayed for

delivery of possession of the property-in-question to the pre-emptors

by issuance of warrant of khas possession. The pre-emptee raised a

question of maintainability of the execution application, which issue

was being heard over a long period of time due to adjournments and

staggered function of courts due to the pandemic situation.

6. Lastly, vide Order No. 48 dated March 8, 2021, the executing court

disposed of the execution case along with Miscellaneous Pre-emption

Case No. 08 of 2012 by directing the opposite parties in the pre-

emption proceeding (pre-emptee and his vendors) to execute a deed in

favour of the petitioner "so that the petitioner can proceed with the

Execution Case in respect to this order and comply with the order..."

of the appellate court.

7. Learned counsel for the petitioner, upon placing reliance on the

provisions of Sections 8, 9 and 10 of the 1955 Act, submits that title

in the pre-empted property automatically vests on the pre-emptors

upon compliance of necessary formalities as stipulated in the said

sections. No further transfer deed is required to be executed.

8. Learned counsel for the pre-emptee/opposite party no. 1 contends

that as per the scheme of the 1955 Act and recent judgments of the

Supreme Court, the entire consideration money had to be deposited,

along with statutory interest, at the time of filing the pre-emption

application, which time cannot be further extended. Having not done

so, the pre-emptors could not claim relief under Sections 8 and 9 of

the said Act.

9. Moreover, counsel submits that a special leave petition is already

pending against the co-ordinate Bench order affirming the appellate

court's order granting pre-emption.

10. Hence, the opposite party no. 1 argues that title could not have vested

in the pre-emptors automatically, as envisaged in Sections 8, 9 and 10

of the 1955 Act; as such, no interference with the impugned order is

necessary.

11. To decide the question posed in the matter, a brief consideration of

the relevant legal provisions is required. Section 8 of the 1955 Act

confers the right of pre-emption, while Section 9 lays out the

procedure to be followed upon filing of a pre-emption application and

the effect of a pre-emption order. As a follow-up, Section 10 of the Act

stipulates the consequences of an order of pre-emption and

consequent transfer.

12. Section 9 (1) of the 1955 Act envisages the statutory amount

deposited by the pre-emptor to be paid to the "transferee" and the

excess to be refunded to the pre-emptors. It further proves that the

court granting pre-emption shall then "make a further order that the

portion or share of the plot of land be "transferred to the applicant"

and, more importantly, "... on such order being made, the portion or

share of the plot of land shall vest in the applicant".

13. Sub-section (2) of Section 9 says, "When any person acquires the

right, title and interest of the transferee in such plot of land by

succession or otherwise, the right, title and interest acquired by him

"shall be subject to the right conferred by sub-section (1) of Section 8"

on a pre-emptor.

14. Sub-section (5) of Section 9 reads thus: "The Munsif shall send a copy

of his order as modified on appeal, if any under sub-section (6) to the

prescribed authority for correction of the record-of-rights".

15. Section 10, clause (a) specifically stipulates that, "On an order under

section 9 being made", "the right, title and interest of the raiyat and of

the transferee" or any person acquiring right, title and interest of the

transferee in such plot of land by succession or otherwise "shall vest

in the raiyat whose application for transfer has been allowed...", that

is, the successful pre-emptor. Clause (b) of Section 10 makes the

successful pre-emptor liable for any revenue accruing from "the date

of the order".

16. Thus, the scheme of the 1955 Act does not contemplate the execution

of a further transfer deed, as required by decrees of specific

performance of contract under the Specific Relief Act, 1963, since the

right, title and interest of the transferee/pre-emptee or anyone

claiming through the pre-emptee shall automatically vest in the pre-

emptor.

17. The limited scope of execution of pre-emption orders under the 1955

Act is, thus, confined to delivery of possession to the pre-emptor, in

whose favour title has already vested, and/or implementation of any

costs which may have been granted in favour of the pre-emptor.

18. Hence, the concept of execution of a further transfer deed is entirely

de hors the scheme of the 1955 Act.

19. Mere filing of a special leave petition against the order of the High

Court affirming the pre-emption order does not operate as a stay of

the order of pre-emption, which itself vests title in the pre-emptor.

Any further deed is superfluous in the context of the 1955 Act, unlike

the Specific Relief Act, 1963 Act.

20. The other facet of the argument of opposite party no.1, that it is now

settled law that the entire consideration was to be deposited with the

pre-emption application, is equally not tenable in law. The order of the

first forum merged with those of the appellate court and the High

Court and has attained finality. To quote the Supreme Court, even a

judgment and decree impugned in appeal at the most "at jeopardy".

Despite so, as of date, the order of pre-emption stands and, by

operation of Section 9 and 10 of 1955 Act, as discussed above, vests

title in the pre-emptors from date of the pre-emption order.

21. It is settled law as well that the executing court, within its limited

conspectus (particularly in respect of a pre-emption order under the

1955 Act), cannot go behind the decree or order sought to be

executed. All the more so, in view of the title in the pre-empted

property having already vested in the pre-emptors upon compliance of

the requirements of Section 9 of the 1955 Act by the petitioner, as

recorded in the impugned order itself, there is no scope of re-opening

the final order of pre-emption and divesting the pre-emptors from title

which has been conferred on them by operation of law.

22. Hence, the second limb of the submissions of opposite party no. 1 has

been rendered otiose and is of mere academic interest.

23. In such view of the matter, C.O. No. 1153 of 2021 is allowed, thereby

setting aside Order No. 48 dated March 8, 2021 passed by the Civil

Judge (Junior Division) at Kalna. The execution case filed by the

petitioner for implementing the pre-emption order is revived. The

executing court shall direct possession to be handed over to the pre-

emptors at the earliest and shall pass ancillary orders in aid of such

relief, if necessary, and ensure that possession is handed over to the

pre-emptors in respect of the property-in-suit positively within August

31, 2021.

24. The parties as well the court below shall act on the communication of

this order by the learned advocates, accompanied by a server copy of

this order, without insisting upon prior production of a certified copy.

25. There will be no order as to costs.

26. 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. )

LATER

After the judgment is passed in open court, learned counsel for the

opposite party No. 1 submits that an order of stay of operation of this order

be granted. However, since in the opinion of the court, there is no

substantial question of law of importance is involved in the matter, such

prayer is refused.

( Sabyasachi Bhattacharyya, J. )