West Bengal Land Reforms Act, 1955 – ss. 8 and 9 – Right of purchase by co-sharer or contiguous tenant – Exercise of right of pre-emption – Pre-condition for – Held: Right of pre-emption is activated on deposit of the consideration money together with the further sum of 10% of that amount – Unless such a deposit is made, the right of a pre-emptor is not even activated – Provisions of s. 8 are explicit and clear in their terms – Inquiry into the stated consideration, as envisaged in s. 9, is on the deposit of the amount mentioned in the sale transaction as per sub-section (1) of s. 8 – Thereafter, transferee is given notice who enters appearance within the time specified, and proves the consideration money paid for the transfer “and other sums” – In case pre-emptor raises doubts regarding the consideration amount, enquiry into the said aspect can be done only upon payment of the full amount, along with the application – Thus, when the inquiry is being made by the Munsif, whether in respect of the stated consideration, or in respect of any additional amounts which may be payable, the pre-requisite of deposit of the amount of the stated consideration u/s. 8(1) would be required to be fulfilled – Provisions of ss. 8 and 9 must be read as they are – Full amount has to be deposited – Discretion is not left to the pre-emptor to deposit whatever amount, in his opinion, is the appropriate consideration, in order to exercise a right of pre-emption – Amount can always be directed to be refunded, if deposited in excess – In the instant case, in an application u/ss. 8 and 9, respondent-pre-emptor did not file any material to substantiate even the plea on the basis of which, even if an inquiry was held, could a conclusion be reached that the stated consideration was not the market value of the land – Thus, the order passed by the High Court that application u/ss. 8 and 9 could be entertained on short deposit of consideration amount; and only on final adjudication by the Munsif would the occasion arise to deposit the balance amount, is set aside – Furthermore, there cannot be any extension of time granted to the respondent to deposit the balance amount now, to exercise such a right, however he cannot be deprived of the amount deposited – Thus, the respondent entitled to the refund of the amount deposited with interest, if any.
Pre–emption: Right relating to pre-emption – Held: Pre-emptor has two rights, inherent or primary right, which is right for the offer of a thing about to be sold; and secondary or remedial right to follow the thing sold – Secondary right is a right of substitution, in place of an original vendee – Pre-emptor is bound to show not only that his right is as good as that of that vendee, but that it is superior to that of the vendee which has to subsist at the time when the pre-emptor exercises his right – Right of pre-emption is a very weak right – Any provision to enforce such right must be strictly construed.
Interpretation of Statutes: Rule of construction – Held: Legislative provisions should be read in their plain grammatical connotation, and only in the case of conflicts between different provisions would an endeavour have to be made to read them in a manner that they co-exist and no part of the rule is made superfluous.
Allowing the appeal, the Court
HELD: 1.1 The pre-emptor has two rights: first, the inherent or primary right, i.e., right for the offer of a thing about to be sold; and second, the secondary or remedial right to follow the thing sold. The secondary right of pre-emption is simply a right of substitution, in place of an original vendee and the preemptor is bound to show not only that his right is as good as that of that vendee, but that it is superior to that of the vendee. Such superior right has to subsist at the time when the pre-emptor exercises his right. Right is “a very weak right.” That being the character of the right, any provision to enforce such a right must, thus, be strictly construed. [Paras 11, 12] [1033-G; 1034-A, D]
1.2 Under Section 8(1) of the West Bengal Land Reforms Act, 1955, the right of pre–emption is activated “on deposit of the consideration money together with the further sum of 10% of that amount.” Thus, unless such a deposit is made, the right of a pre–emptor is not even triggered off. The provisions of Section
8 are explicit and clear in their terms. As regards s. 9(1), the commencement of sub-section (1) of Section 9 is with “on the deposit mentioned in sub-section (1) of section 8 being made”. Thus, for anything further to happen under Section 9 of the said Act, the deposit as envisaged under Section 8 of the said Act has to be made. It is only then that the remaining portion of Section
9 of the said Act would come into play. [Paras 24, 25] [1038-G; 1039-A-B]
1.3 As regards, the nature of inquiry which has been envisaged to be carried out by the Munsif, if Section 9, as it reads, is perused, then first, the amount as mentioned in the sale transaction is to be deposited, as per sub-section (1) of Section 8 of the said Act. Once that amount is deposited, the next stage is for the Munsif to give notice of the application to the transferee. The transferee thereafter, when enters appearance within the time specified, can prove the consideration money paid for the transfer “and other sums.” Such other sums, if any, are as “properly paid by him in respect of the land including any sum paid for annulling encumbrances created prior to the day of transfer and rent or revenue, cesses or taxes for any period.” The inquiry, thus envisaged, is in respect of the amount sought to be claimed over and above the stated sale consideration in the document of sale because, in that eventuality further sums would have to be called for, from the pre–emptor. In that context, the additional amount would have to be deposited. Even in the event that a pre–emptor raises doubts regarding the consideration amount, enquiry into the said aspect can be done only upon payment of the full amount, along with the application. In this aspect, the phrase “the remainder, if any, being refunded to the applicant” would include to mean the repayment of the initial deposit made along with the application, if considered to be excess. To give any other connotation to these Sections would make both, the latter part of Section 8 of the said Act and the inception part of Section 9 of the said Act, otiose. Such an interpretation cannot be countenanced. [Para 26] [1039-C-G]
1.4 When the inquiry is being made by the Munsif, whether in respect of the stated consideration, or in respect of any additional amounts which may be payable, the pre–requisite of deposit of the amount of the stated consideration under Section 8(1) of the said Act would be required to be fulfilled. The phraseology “the remainder, if any, being refunded to the applicant” would have to be understood in that context. The word “remainder” is in reference to any amount which, on inquiry about the stated consideration, may be found to have been deposited in excess, but it cannot be left at the own whim of the applicant to deposit any amount, which is deemed proper, but the full amount has to be deposited, and if found in excess on inquiry, be refunded to the applicant. [Para 27] [1039-G-H; 1040-A-B]
1.5 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. There is no inclination to construe the aforesaid provisions otherwise only on the ground that there are no so called “penal provisions” included. The provisions of Sections 8 & 9 of the said Act must be read as they are. In fact, it is a settled rule of construction that legislative provisions should be read in their plain grammatical connotation, and only in the case of conflicts between different provisions would an endeavour have to be made to read them in a manner that they co–exist and no part of the rule is made superfluous. The interpretation, as we have adopted, would show that really speaking, no part of either Section 8, or Section
9 of the said Act is made otiose. Even if an inquiry takes place in the aspect of stated consideration, on a plea of some fraud or likewise, and if such a finding is reached, the amount can always be directed to be refunded, if deposited in excess. However, it cannot be said that a discretion can be left to the pre-emptor to deposit whatever amount, in his opinion, is the appropriate consideration, in order to exercise a right of pre–emption. The full amount has to be deposited. [Paras 28, 29] [1040-C-F]
1.6 As a matter of fact, the pre-emptor in the instant case, i.e., the respondent has not filed any material to substantiate even the plea on the basis of which, even if an inquiry was held, could a conclusion be reached that the stated consideration is not the market value of the land. It is believed that to give such a discretion to the pre-emptor, without deposit of the full consideration, would give rise to speculative litigation, where the pre–emptor, by depositing smaller amounts, can drag on the issue of the vendee exercising rights in pursuance of the valid sale deed executed. In the instant case, there is a sale deed executed and registered, setting out the consideration. Thus, the impugned order and the view adopted would make a weak right into a ‘speculative strong right’, something which has neither historically, nor in judicial interpretation been envisaged. [Paras 30–32] [1040-G; 1041-A-B]
1.7 When the direction was so passed, in pursuance of the order of the appellate court, the respondent still assailed the same. The requirement of exercising the right within the stipulated time, in respect of the very provision has been held to be sacrosanct, i.e., that there can be no extension of time granted even by recourse to Section 5 of the Limitation Act. [Para 33] [1041-C-D]
1.8 Once the time period to exercise a right is sacrosanct, then the deposit of the full amount within the time is also sacrosanct. The two go hand-in-hand. It is not a case where an application has been filed within time and the amount is deficient, but the balance amount has been deposited within the time meant for the exercise of the right. Such an eventuality may arise, but in that case, the right under the application would be triggered off on deposit of the amount which, in turn, would be within the time stipulated for triggering the right. That not having happened, there cannot be any extension of time granted to the respondent now, to exercise such a right. This is, of course, apart from the fact that this speculative exercise on behalf of the respondent has continued for the last fourteen years, by deposit of 50% of the amount. [Para 34] [1041-E-F]
1.9 It may not be appropriate to envisage a situation where a person not succeeding in the right of pre–emption is deprived of the amount deposited. The vendee cannot appropriate this amount. The State should not be permitted to appropriate this amount. Then, the only sequitur would be that the amount should be refunded back to the pre–emptor. The respondent is entitled to the refund of the amount deposited by him, together with interest, if any, earned on the same, in case it has been kept in an interest bearing deposit. [Paras 35, 36] [1041-G; 1042-A]
Sahid Ali v. S.K. Abdul Kasem (1994) 1 CHN 202 ; Bishan Singh & Ors. v. Khazan Singh & Anr. AIR 1958 SC 838 ; Dhani Nath v. Budhu 136 P.R. 1894 ; Gobind Dayal v. Inayatullah. (1885) ILR 7 All 775; Mool Chand v. Ganga Jal. (1930) ILR 11 Lahore (F.B.) 258 ; Gopal Sardar v. Karuna Sardar (2004) 4 SCC 252 ; Kedar Mishra v. State of Bihar (2016) 7 SCC 478; Bishan Singh & Ors. v. Khazan Singh & Anr. AIR 1958 SC 838; Sahid Ali v. S.K. Abdul Kasem (1994) 1 CHN 202; Jyotish Chandra Sardar v. Hira Lal Sardar ILR 1971 (1) Calcutta 213 ; Amitava Shit v. Bablu Kundu 2014(1) CHN (Cal) 744 ; Smt. Aparna Maity v. Smt. Purabi Das C.O. No.3859/2015 AGM 2016 decided
on 19th December, 2016 ; Sahid Ali v. S.K. Abdul Kasem (1994) 1 CHN 202 ; Jyotish Chandra Sardar v. Hira Lal Sardar ILR 1971 (1) Calcutta 213 ; Bhau Ram v. Baij Nath Singh & Ors. AIR 1962 SC 1476 ; British India General Insurance Co. Ltd. v. Captain Itbar Singh, AIR 1959 SC 1331 – 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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