Vikash Agarwal vs Sri Asit Koley & Anr
2023 Latest Caselaw 489 Cal

S/L 28
17.01.2023

Court No.652 SD CO 2054 of 2021

Vikash Agarwal Vs.

Sri Asit Koley & Anr.

Mr. Kushal Chatterjee Mr. Shibjit Mitra Mr. Amit Chowdhury ... for the Petitioner.

Mr. Sukumar Ghosh Mr. Sandip Ghosh ... for the Opposite Parties.

Affidavit of service filed by the petitioner in court

today be kept with the record.

This application has been preferred challenging the

Order No.15 dated 18.02.2021 passed by the learned Civil

Judge (Junior Division), Additional Court, Chandernagore in

Pre-emption Misc. Case No.13 of 2019.

The petitioner contended that the opposite parties

being the preemptors/petitioners filed an application under

Section 8 read with Section 9 of the West Bengal Land

Reforms Act, 1955 praying for exercising the right of pre-

emption over the sale affected to a registered deed of

conveyance executed on 24.5.2019 on the ground of adjacent

property having largest boundary.

The petitioner herein further submits that the

purchase consideration of the sale transaction in question

was Rs.6,67,000/-. The petitioner further submits that the

opposite party no.1 has no land contiguous to the schedule

property and has no right to pre-empt on the case property.

The petitioner submits that the petitioner/pre-emptor at the

time of filing the preemption case has not deposited the

entire consideration money on the levied amount and

without intimating anything to the petitioner on 18.02.2021,

the opposite party no.1 filed a put up application and moved

another application contending information about deposit of

an amount of Rs.4,03,700/- towards the arrear deposit

through challan. Learned court below, without giving any

opportunity of hearing to the petitioner on 18.02.2021,

passed the impugned order and allowed the petition filed by

the opposite party no.1 about deposit of Rs.4,03,700/-.

Referring Barasat Eye Hospital & Ors. vs. Kaustabh

Mondal reported in (2019) 19 SCC 767, the petitioner

strenuously argued that the preemption application filed

with short deposit is not maintainable and the learned trial

Judge without considering the same simply allowed the

opposite party no.1 to deposit the money and thereby

regularized the short deposit which is contrary to the

judgment passed by the Apex Court in the said judgment.

The petitioner further submits that while passing the

impugned order, learned court below failed to appreciate

that once the preemption application being declared as

illegal by the judgment of the Hon'ble Supreme Court, the

same cannot be regularized by allowing further deposit. The

court below while passing the impugned order had acted

mechanically which is liable to be set aside.

Learned counsel appearing on behalf of the opposite

parties submits that he has deposited the entire

consideration money and the learned court, by its impugned

order, has allowed the petitioner for the aforesaid deposit.

He further submits that an inflated amount of

consideration price is shown on the face of the deed and as

such, challenging the consideration price, he did not deposit

the entire consideration price before the court below at the

time of filing of the case. However, he has deposited the

entire amount subsequently.

He further submits that the issue raised by the

petitioner in this case has been referred by a coordinate

Bench of this court before a Larger Bench in CO 785 of 2021.

Considered the submissions made by both the parties.

Admitted position in the present case is that the

preemption case was filed in the year 2019 on the ground of

having adjacent longest common boundary. Admittedly, at

the time of filing of the application, the consideration price

appearing on the face of the deed along with 10% levy was

not deposited but subsequently, in order to deposit the

opposite parties herein filed a put up petition before the

court below on 18.02.2021. The petitioner alleged that

without hearing the petitioner herein, the court below passed

the impugned order wherein the court below passed the

challan at the risk of the party. Accordingly, by passing the

challan, the court below has not declared any right in favour

of the petitioner nor the petitioner has accrued any right in

respect of continuation of the preemption case in question by

making subsequent deposit of the rest consideration amount

on 18.02.2021.

In Barasat Eye Hospital & Ors. (supra), the Supreme

Court observed as follows:-

"29. We are, thus, firmly of the view that the pre-requisite to even endeavour to exercise this weak right is the deposit of the amount of sale consideration and the 10% levy on that consideration, as otherwise, Section 8(1) of the said Act will not be triggered off, apart from making even the beginning of Section 9(1) of the said Act otiose."

Though, learned counsel appearing on behalf of the

opposite parties submits that the selfsame issue has been

referred to a Larger Bench for adjudication by this Court in

CO 785 of 2021, but it appears that the subject matter of

reference in the said revisional application is different, which

runs as follow:-

"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."

Here, admittedly, the pre-emptors/opposite parties

are not the co-sharers and the pre-emption has been sought

for on the ground of adjacent land holder. Accordingly, the

aforesaid reference has got no connection with the present

case and the judgment passed by the Apex Court in Barasat

Eye Hospital (supra) is squarely applicable in the present

case as the case involved in the Barasat Eye Hospital

(supra) was that the pre-emptor had sought for preemption

claiming that the preemptor is a holder of land contiguous to

the suit land sharing a common boundary line. Accordingly,

present pre-emption case is not maintainable.

In view of the above and also in view of the settled

position of law, the impugned order no.15 dated 18.02.2021

passed by the learned Civil Judge (Junior Division),

Additional Court, Chandernagore in Pre-emption Misc. Case

No.13 of 2019 directing further continuance of pre-emption

case is hereby set aside.

Accordingly, CO 2054 of 2021 is allowed.

There will be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Ajoy Kumar Mukherjee, J.)