Surajit Ghara v. Biswanath Tunga And ANR

13.03.2024 Sl. No.32(DL) srm C.O. No. 1013 of 2022 Sri Surajit Ghara

Versus

Sri Biswanath Tunga & Anr.

Mr. Asish Chandra Bagchi, Ms. Malyasree Maity ...for the Petitioner.

Mr. Sukumar Ghosh, Mrs. Moumita Ghosh ...for the Opposite Parties.

1. The revisional application arises out of an order dated February 23, 2022 passed by the learned Civil Judge (Junior Division), 1st Court at Tamluk, Purba Medinipur, in Judicial Miscellaneous Case No.8 of 2018. The case was one of pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act).

2. By the order impugned, the amendment application was allowed. The learned court directed that the schedule of amendment be incorporated in the petition for pre-emption and further directed deposit of Rs.23,00,000/- along with 10% of the said amount as balance consideration money. The pre-emption application was filed with the deposit of part of the

consideration of Rs.9,00,000/- and 10% of the said amount. The consideration money was mentioned as Rs.32,00,000/- in the sale deed. The sale was completed on or about January 24, 2018. The preemption was filed on April 20, 2018 on the ground of the preemptor being a non-notified co-sharer. The application for amendment was filed on March 4, 2021 and the said application was allowed by the learned court by the order dated February 23, 2022. The consideration money was deposited on March 2, 2022.

3. It also appears that on or about January 29, 2019 an application was filed by the defendant No.1/petitioner for a direction upon the opposite party/preemptor to deposit the balance amount. The said application was rejected. The order remains unchallenged.

4. Aggrieved by the order dated February 23, 2022, the defendant No.1 has approached this Court on the following grounds :- (a) By allowing the amendment along with the prayer for deposit of the balance consideration money, the learned court ignored the law laid

down by the Hon'ble Apex Court in the matters of Barasat Eye Hospital & Ors. vs.

Kaustabh Mondal reported in (2019) 19 SCC 767 and Abdul Matin Mallick vs. Subrata Bhattacharjee (Banerjee) reported in AIR 2022 SC 2175.

(b) The amendment and direction to deposit the balance consideration money was barred by laws of limitation.

(c) The right of pre-emption would not be triggered off until the entire consideration money as stated in the deed of conveyance along with 10% of the said amount was deposited. Admittedly, in the case in hand the same was not deposited within one year from the completion of the sale. The pre-emption application by then had become barred by law of limitation.

(d) The decision of the Hon'ble Apex Court was a binding precedence and as such the learned court had passed the order in ignorance of law. The order was a nullity.

5. Mr. Ghosh, learned Advocate appearing on behalf of the preemptor submits that such plea would not lie in the mouth of the petitioner when the petitioner himself had prayed for a direction upon the opposite party to deposit the consideration amount.

6. The decisions of the Hon'ble High Court in the matters of Angurbala, and Sahid Ali vs Abdul Kasem, reported in (1994) 1 CHN 202 would clearly indicate that there was no obligation on the part of the preemptor to deposit the entire consideration money along with 10% levy while filing the application under Section 8 of the said Act.

7. Next, a similar point was referred by a learned coordinate Bench of this Court earlier. The money was already paid, valuation had been obtained from the registrar, and the defect in the application had been cured. Subsequently, the preemptees could not raise any plea with regard to the non-maintainability of the pre-emption application. There was no illegality in the order passed by the learned court allowing the amendment along with the deposit of the balance consideration.

8. First and foremost, the decisions relied upon by Mr. Ghosh do not have any applicability as the Hon'ble Apex Court has already declared the law by interpreting Sections 8 and 9 of the said Act. The Hon'ble Apex Court while deciding Barasat Eye Hospital (supra) has already held that the decision was being rendered in a situation when the Hon'ble Apex Court was conscious of the conflicting decisions of the Calcutta High Court. The Hon'ble Apex Court put to rest the confusion with regard to the interpretation of the statute in view of the fact that several applications of like nature were pending before the High Court. Relevant paragraph is quoted below:- "22. We have examined the rival contentions of the parties and considered it appropriate to set forth the history of the right of pre-emption, as it may possibly have larger ramifications, especially when we are informed that there are other cases pending consideration before the Calcutta High Court."

9. With regard to the reference in the matter of Sk. Abdul Odud Ali vs. Emanulla Khan and Others decided in C.O. No. 785 of 2021, this Court finds that in Abdul Matin Mallick (supra) the Hon'ble Apex Court followed the ratio of Barasat

Eye Hospital (supra). Abdul Matin Mallick (supra) was a case of pre-emption on the ground of nonnotified co-sharership and the allegation was that an inflated valuation had been inserted in the deed of conveyance only to avoid pre-emption, whereas the actual valuation was much less. Even under such facts and circumstances, the Hon'ble Apex Court following the ratio of Barasat Eye Hospital (supra) held as follows:

"2.1. That the disputed property in question, which was the subject-matter of application for pre-emption before the Appropriate Authority under the West Bengal Land Reforms Act, 1955 (hereinafter referred to as "the 1955 Act") belonged to one Khudiram Bhattacharya, who died on 17-4-2001 leaving behind him, surviving his widow Purnima Bhattacharya who also died on 148-2001 and three sons, namely, Subrata, Debabrata and Ratan (the pre-emptors herein) and two daughters Kalyani and Alpana, the vendors of the pre-emptee (appellant herein). On the death of Khudiram Bhattacharya and his widow, the aforesaid three sons and two daughters inherited the property in question each having undivided 1/5th share therein.

The daughters of the original owner - Khudiram Bhattacharya sold their undivided 2/5th share in the property in question to the appellant herein - pre-emptee, Abdul Matin Mallick vide registered sale deed dated 23-11-2011.

Section 5 of the 1955 Act. The said application under Section 8 of the 1955 Act was registered as Misc. Pre-emption Case No.

8 of 2012 before the learned trial court.

*** 6.1. Thus, as observed and held by this Court in the aforesaid judgment in Bishan Singh [Bishan Singh v. Khazan Singh, AIR 1958 SC 838] , 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.

[Barasat Eye Hospital [Barasat Eye Hospital v. Kaustabh Mondal, (2019) 19 SCC 767 : (2020) 4 SCC (Civ) 810] ] 6.2. The submission/contention on behalf of the pre-emptee that, as in the present case, along with the pre-emption application, the pre-emptors did not deposit the entire sale consideration with 10% additional sale consideration, and therefore their preemption application was not required to be further considered and no further enquiry as contemplated under Section 9 of the 1955 Act would be maintainable is concerned, identical question came to be considered by this Court in Barasat Eye Hospital [Barasat Eye Hospital v. Kaustabh Mondal, (2019) 19 SCC 767 : (2020) 4 SCC (Civ) 810] wherein at paras 23 to 33, it is observed and held as under : (SCC pp. 779-81) 6.3.

Therefore, deposit of the entire sale consideration with additional 10% of the sale consideration along with the pre-emption application is a statutory and mandatory requirement and it is a precondition before any further enquiry as contemplated under Section 9 of the Act is held. In the present case, admittedly, the pre-emptors had not deposited the entire sale consideration with additional 10% of the sale consideration along with the pre-emption application. The aforesaid aspects have not been considered either by the first appellate court or even by the High Court in this case.

***

7. Now, so far as the submission on behalf of the pre-emptors that they bona fide 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 along with the pre-emption application is concerned, it is to be noted that the aforesaid cannot be a ground not to comply with the condition of deposit as required under Section 8 of the 1955 Act. At the most, such a dispute can be the subjectmatter of an enquiry provided under Section 9 of the Act. As observed hereinabove, 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.

8. Now, so far as the submission on behalf of the pre-emptors that the contention of nondeposit 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 preemption application as without complying with the statutory requirements as mentioned under Section 8 of the 1955 Act, 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. In view of the aforesaid admitted position, we have considered the submission on behalf of the appellant on non-fulfilment of the condition mentioned in Section 8 of the Act.

9. At this stage, it is required to be noted that even the High Court in the impugned judgment and order has permitted the preemptors to deposit the balance sale consideration.

However, faced with the decision of this Court in Barasat Eye Hospital [Barasat Eye Hospital v. Kaustabh Mondal, (2019) 19 SCC 767 : (2020) 4 SCC (Civ) 810] and in light of the observations made by us hereinabove that along with the pre-emption application, the pre-emptors

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 1955 Act 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 1955 Act.

10. In view of the above and for the reasons stated above, the present appeals succeed.

The impugned judgments and orders passed by the High Court [Abdul Matin Mallick v. Subrata Bhattacharjee (Banerjee), SCC OnLine Cal 3853] , [Subrata Bhattacharjee (Banerjee) v. Abdul Matin Mallick, 2021 SCC OnLine Cal 3548] and that of the first appellate court are hereby quashed and set aside. Consequently, the pre-emption application submitted by the original pre-emptors - Respondents 1 to 3 herein stands dismissed. Respondents 1 to 3 - original pre-emptors are permitted to withdraw the amount, which they might have deposited either along with the preemption application and/or any subsequent deposit pursuant to the orders passed by the High Court.

Mr. Ghosh's contention that unless an enquiry was made and a report had been obtained, there was no requirement to deposit the full consideration money, is also incorrect.

Such contention is not acceptable in view of the findings of the Hon'ble Apex Court in Barasat Eye Hospital (supra). The Hon'ble Apex Court held that the expression remainder if any, shall be refunded to the preemptor if on enquiry it was found that excess had

been deposited, would mean that the preemptor would be bound to deposit the entire consideration money with 10% of the amount and once in the enquiry undertaken later, it was found that the preemptor's objection to the valuation was correct, the excess amount deposited by him would be refunded. Otherwise, the opening lines of Section 9 of the said Act would be rendered otiose. The relevant paragraphs are set out below :- "27. The question now is as to what would be 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 subsection (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 preemptor. 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.

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.

We do not think such an interpretation can be countenanced.

28. In our view, 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.

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."

10. The next issue is with regard to preemption application being barred by the laws of limitation. Admittedly, Section 5 of the limitation Act does not apply to a case under Section 8. The Hon'ble Apex Court has held in this regard. It has also been held that the right of preemption would not be triggered off till the entire consideration was deposited. In this

case, balance consideration was deposited in 2022, upon an order of the court where the court allowed to deposit at the risk of the preemptor, which means that by the time the deposit was made, the preemption application had already became time barred, that is, one year had elapsed. Relevant paragraphs are quoted below:- "30. We are not inclined to construe the aforesaid provisions otherwise only on the ground that there are no so-called "penal provisions"

included. The provisions of Sections 8 and 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. [British India General Insurance Co. Ltd. v. Itbar Singh, AIR 1959 SC 1331] 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.

31. We may also note that, as a matter of fact, the pre-emptor in the present 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.

32. We also believe 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 present case, there is a sale deed executed and registered, setting out the consideration.

33. We are of the view that 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.

34. The last question which arises is whether the respondent can now be granted time to deposit the balance amount. 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.

35. As we have discussed above, 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. We are saying so as 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, we are of the view that 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."

11.

This court in the matter of Chitta Ranjan Misra vs. Subrata Majhi and others (CO 451 of 2023) has held that in the decision of Barasat Eye Hospital (supra), the law declared by the Hon'ble Apex Court which was a binding precedent under Article 141 of the Constitution of India. The relevant portions are quoted below:- "Upon a meaningful reading of the decision, it is evident that the object of the said decision was to put to rest the controversy in respect of exercise of such a weak right, especially in the matter of short deposits. The Apex court took note of the fact that the decision would have a far larger ramification, as many cases were pending before this High Court on this point.

Secondly, the law was in existence since 1955, but the interpretation of the same in respect of the requirement to deposit the consideration amount was finally put to rest in the decision of Barasat Eye Hospital (supra).

It was a law declared on the point and will have a retrospective effect. The Hon'ble Apex Court was of the view that if short deposits were allowed, a weak right would give rise to speculative suits.

In the decision of Abdul Matin (supra), a similar view was taken by the Hon'ble Apex Court upon relying on the decision in Barasat Eye

Hospital (supra). The Hon'ble Apex Court was dealing with Misc.

Preemption Case No.8 of 2012 which had been filed before the trial court.

The Misc.

preemption case was dismissed by the trial court. Misc.

Appeal No.7 of 2014 was preferred.

The Misc. Appeal was allowed and the order of the learned trial court was set aside. The application for pre-emption was allowed on the ground of cosharership. The first appellate court allowed deposit of the balance consideration money. Aggrieved, the pre-emptee approached the High Court. The High Court dismissed the revisional application by upholding the order of the first appellate court and also upholding the decision of the first appellate to allow a belated deposit of the balance consideration money.

Such order was challenged in Civil Appeal No.3500 of 2022. In such a pending proceeding, the decision of Barasat Eye Hospital (supra) was referred to and it was held that the learned lower appellate court was not justified in permitting the preemptor to deposit the balance consideration money with additional 10% and the High Court was also not justified in upholding such decision.

Thus the Apex Court applied the decision of Barasat Eye Hospital (supra) even in a pending preemption case of 2012, and set aside the order of the High Court passed in C.O.4266 of 2016. The decision of Barasat Eye Hospital (supra) was rendered in 2019.

In the decision of Assistant Commissioner, Income Tax Rajkot v.

Saurashtra Kutch Stock Exchange Ltd., reported (2008) 14 SCC 171, the Hon'ble Apex Court held as follows:- '35. In our judgment, it is also well settled that a judicial decision acts retrospectively.

According to Blackstonian theory, it is not the function of the court to pronounce a "new rule"

but to maintain and expound the "old one". In other

words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively.

To put it differently, even where an earlier decision of the court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood.'

In the decision of P.V. George and Others v. State of Kerala and others, reported in (2007) 3 SCC 557, the Hon'ble Apex Court held that the law declared by a court will have retrospective effect if not otherwise stated to be so specifically.

The decision of the Hon'ble Apex Court was a law declared on the point that deposit of the full amount stated as the sale consideration together with further deposit of 10% was a precondition to filing an application under Section 8(1) of the West Bengal Land and Land Reforms Act, 1995. The conflicting legal position was clarified, interpreted, rectified and altered. The decision has a retrospective effect and will apply to pending proceedings."

12. The fact that the petitioner had asked for a direction to deposit the balance consideration does not change the jurisdictional error of the learned court. In any event the said application of the defendants preemptees had been rejected. There cannot be any waiver or estoppel against a statute and violation of

the provisions of Section 8(1) will render the order impugned bad in law.

13. Under such circumstances, the order impugned is set aside.

14. The revisional application is, thus, allowed.

15. There shall be no order as to costs.

16. Parties are to act on the basis of the server copy of this order.

(Shampa Sarkar, J.)