West Bengal Land Reforms Act, 1955: s.5(5), 8, 9 – Right of purchase by co-sharer or contiguous tenant – Pre-emption application – Maintainability of – Vendors of the pre-emptee transferring their entire share in the property to person other than a raiyat in the said plot of land without notice to the pre-emptors – Pre-emption application by respondents-pre-emptor to exercise their right as pre-emptors u/s 8, allowed by the first appellate court – However, the High Court while upholding the said order, granted time to the pre-emptors to deposit the balance consideration money together with further sum of 10% of that amount – On appeal, held : Right of pre-emption is a very weak right – Any provision to enforce such a right must, be strictly construed – Deposit of the entire sale consideration with additional 10% of the sale consideration alongwith the pre-emption application is a statutory and mandatory requirement – It is a pre-condition before any further enquiry as contemplated u/s. 9 is held – On facts, the pre-emptors had not deposited the entire sale consideration with additional 10% of the sale consideration alongwith the pre-emption application – First appellate court or even the High Court did not consider the said aspect – Unless and until the same is complied with, the pre-emption application would not be maintainable – High Court not justified in permitting the pre-emptors to deposit the balance sale consideration while deciding the revision application – Such direction/permission/liberty would be against the intent of s. 8 – Thus, the orders passed by the High Court and that of the first appellate court quashed and set aside – Pre-emption application filed by the original pre-emptors-respondent dismissed.
Allowing the appeals, the Court
HELD: 1.1 The right of pre-emption is “a very weak right”. That being the character of the right, any provision to enforce such a right must, thus, be strictly construed. The deposit of the entire sale consideration with additional 10% of the sale consideration alongwith the pre-emption application is a statutory and mandatory requirement and it is a pre-condition before any further enquiry as contemplated under Section 9 of the West Bengal Land Reforms Act, 1955 is held. In the instant case, admittedly, the pre-emptors had not deposited the entire sale consideration with additional 10% of the sale consideration alongwith the pre-emption application. The said aspects have not been considered either by the First Appellate Court or even by the High Court. [Para 6.1, 6.3][618-G-H; 623-B-C]
1.2. The submission on behalf of the pre-emptors that they bonafidely believed that the sale consideration mentioned in the sale deed is in favour of the vendee, who is an outsider (outside the family) was higher than the actual sale consideration and therefore, they did not deposit the entire sale consideration with additional 10% of the sale consideration alongwith the preemption application is concerned, it is to be noted that the said cannot be a ground not to comply with the condition of deposit as required under Section 8 of the Act, 1955. Such a dispute can be the subject matter of an enquiry provided under Section 9 of the Act. The enquiry under Section 9 with respect to the sale consideration in the sale deed would be only after the condition of deposit of entire sale consideration with additional 10% as provided under Section 8 of the Act has been complied with. [Para 7][623-D-F]
1.3. The submission on behalf of the pre-emptors that the contention of non-deposit of the entire sale consideration with additional 10% of the sale consideration by the pre-emptors was not raised before the Courts below and has been raised for the first time before this Court, and therefore the same be not considered/permitted to be raised now, is concerned, it is to be noted that the said contention would go to the root of the matter on maintainability of the pre-emption application as without complying with the statutory requirements as mentioned under Section 8 of the Act, 1955, the same is not maintainable. It is an admitted position that the pre-emptors had not deposited the entire sale consideration with additional 10% of the sale consideration along with the pre-emption application as required under Section 8 of the Act in the instant case. [Para 8][623-F-H; 624-A]
1.4. Even the High Court in the impugned judgment and order has permitted the pre-emptors to deposit the balance sale consideration. However, faced with the decision of this Court in the case of Barasat Eye Hospital and Ors. and in light of the observations that alongwith the pre-emption application, the preemptors have to deposit the entire sale consideration with additional 10% and only thereafter the further enquiry can be conducted as per Section 9 of the Act, 1955 and therefore, unless and until the same is complied with, the pre-emption application would not be maintainable, the High Court is not justified in permitting the pre-emptors to now deposit the balance sale consideration with additional 10% while deciding the revision application. Such a direction/permission/liberty would go against the intent of Section 8 of the Act, 1955. [Para 9][624-B-D]
Barasat Eye Hospital and Ors. v. Kaustabh Mondal (2019) 19 SCC 767 – relied on.
1.5. The impugned judgments and orders passed by the High Court and that of the first appellate court are quashed and set aside. Consequently, the pre-emption application submitted by the original pre-emptors-respondent Nos. 1 to 3 is dismissed. Respondent Nos. 1 to 3-original pre-emptors are permitted to withdraw the amount, which they might have deposited either alongwith the pre-emption application and/or any subsequent deposit pursuant to the orders passed by the High Court. [Para 10][624-E-F]
Barasat Eye Hospital and Ors. v. Kaustabh Mondal (2019) 19 SCC 767 – relied on.
Sk. Sajhan Ali & Ors. v. Sk. Saber Ali & Anr. 2016 (1) W.B.L.R (Cal) 133; Naymul Haque and Ors. v.
Allauddin Sk. and Ors. 2019 (1) CLJ (CAL) 488; Bishan Singh v. Khazan Singh AIR 1958 SC 838 : [1959] SCR 878 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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