Partha Pratim Gan v. Sumangal Chandra
17.11.2025 Court No.6 D/L No.9 S. Gayen/ C. Poddar
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION APPELLATE SIDE CO 3869 of 2025 Partha Pratim Gan
Versus
Sumangal Chandra Mr. Kingsuk MOndal Mr. Partha Sarathi Mondal Mr. Chiranjit Saha ...for the Petitioner
1. This is an application challenging the order dated September 17, 2025, passed by the learned Additional District Judge, Fast Track Court, Ranaghat, Nadia in Misc. Appeal No. 8of 2022. The Miscellaneous Appeal arose out of a final order dated June 8 of 2022 passed in Misc. (Preemption) No. 8 of 2018 by the learned Civil Judge (Junior Division), 2nd Court, Ranaghat, Nadia. By the order impugned, the learned Appellate Court allowed the appeal. The learned appellate court found that the petitioner,respondent in the appeal, had deposited Rs. 44,000/- when the application for preemption was filed and the remaining amount with 10% of the value set forth was deposited after the application for preemption was allowed by the order of the learned Trial Judge.
2. Applying the ratio in Barasat Eye Hospital & Ors. vs. Kaustabh Mondal reported in (2019) 19 SCC 767, the appeal was allowed and the judgment allowing the
preemption passed by the learned Trial Judge was set aside. The learned Appellate Court was also of the view that the learned Trial Judge had wrongly given an opportunity to the petitioner to deposit the additional amount. On July 4, 2022, the petitioner had deposited the remaining consideration amount, although the application for preemption was filed on February 27, 2018.
3. The learned Trial Judge, upon considering the decision in Barasat Eye Hospital (supra) was of the view that the petitioner had not satisfied the ingredients of Section 8 of the West Bengal Land Reforms Act, but allowed his right of preemption subject to depositing the consideration money along with 10% of the value set forth. It was directed by the Trial Judge that, the payment of remaining consideration along with 10% of the value set forth totalling to Rs. 2,15,385/-, should be made within 30 days from the date of the judgment. The order was passed on June 8, 2022. The petitioner contends that the payment was made as per the direction of the learned Trial Judge, and as such, the appeal was wrongly allowed, inter alia, holding that the petitioner did not have the right to seek preemption, as deposit of the consideration money along with 10% of the value set forth had not been made within the stipulated period.
4. It appears that a learned Coordinate Bench in CO No. 1104 of 2024, admitted an application for preemption,
prima facie, observing that even if the deposit was not made with the application, but within reasonable time, the application for preemption should not be outrightly rejected. This was an interim order is another matter. However, the order is distinguishable, inasmuch as, if the deposit of the consideration money along with 10% of the value set forth is made within the period of limitation prescribed under the statute but not with the application, the said deposit is valid in law.
5. In the instant case, the petitioner filed the application for preemption in 2018 and contested the entire proceeding before the learned trial judge. The learned trial judge allowed the application for preemption. While disposing of the said application, the court permitted payment within 30 days from the judgment.
6. This power is not vested in the learned trial judge and the learned appellate court has rightly laid down the law by following Barasat Eye Hospital (supra). Delay in deposit could not be condoned by the trial Judge.
7. In the decision of Swajit Sankar Mookherjee vs. Sri Goutam Ghosh & Ors., passed in C.O. 1705 of 2023, reported in 2024 (3) ICC 47, this court had discussed the law relating to preemption and the relevant paragraphs are quoted below:
"45. Sections 8 and 9 should be read in a way that they could co-exist and no part would be made superfluous. It was not a discretion left to the preemptor to put whatever amount in his opinion was the appropriate consideration. The full amount had to be deposited along with 10%. If the pre-
emptor was allowed to deposit his own value and take a plea that the consideration money was inflated, it would amount to transformation of a weak right to a speculative strong right.
Something, which neither historically nor in judicial interpretation had been envisaged.
46.In paragraph 34 of the decision in Barasat Eye Hospital (supra) the Hon‟ble Apex Court also considered whether an extension of time could be given and held that if the application for preemption was filed within the period of limitation with a deficit amount and the balance amount had also been deposited within the period of limitation, the situation could have been different. But, extension of time to deposit the amount beyond the period stipulated by law, was not permissible and no extension could be granted. The right of pre-emption would be triggered off only upon deposit of the balance consideration, but the balance consideration could not be allowed to be deposited beyond the period of limitation. Section 5 of the Limitation Act, was not applicable in a proceeding under Section 8 of the West Bengal Land Reforms Act.
The court was not left with any discretion to extend the time to deposit the consideration amount. Section 149 of the Code of Civil Procedure would not apply in this case. Relevant paragraphs of Barasat Eye Hospital (supra)are quoted below:- "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 order of appellate court, 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.
[Gopal Sardar v. Karuna Sardar, (2004) 4 SCC 252]
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-inhand. 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 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 last fourteen years, by deposit of 50% of the amount."
47.The reliance on Mahand Ramdas (Supra)is also misconceived. No event envisaged as special circumstances was pleaded to justify the short deposit. According to the Hon‟ble Apex Court, the courts did not have any power to enlarge the time in allowing deposit of the balance consideration as the same would be contrary to the mandatory requirement of the statute under Section 8, otherwise the opening lines of Section 9 would be rendered otiose. The relevant paragraphs in Barasat Eye Hospital (supra) are quoted below:- "26. Now turning to Section 9 of the said Act, from which, apparently, some judgments of the Calcutta High Court have sought to derive a conclusion that an inquiry into the stated consideration is envisaged.
However, the commencement of sub-section (1) of Section 9 is with "on the deposit mentioned in subsection (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.
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 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 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 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.
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 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 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."
8. In this context, the question of limitation would arise in the present fact scenario. The Hon‟ble Apex Court in Barasat Eye Hospital (Supra), had laid down that the right of preemption under Section 8(1) of the West Bengal Land Reforms Act would not be triggered off until the entire consideration money along with 10% thereof was deposited. Here the trial court allowed the short deposit to be made after the trial had concluded
and the judgment was passed, i.e., after 4 years from the filing of the application. The right of preemption of the petitioner had not triggered off until July 4, 2022 when the deposit was made as per the direction of the trial court. Whereas, such application ought to have been filed by the petitioner who claims to be a cosharer within three months from service of notice given under Sub-Section (5) of Section 5 or within four months from the date of such transfer as he also claims to be the adjoining owner or if he was a nonnotified co-sharer, within a year from knowledge. By the time the petitioner deposited the amount, his application for preemption had already become time barred.
9. The Hon‟ble Apex Court has held that courts could not permit belated deposit of the consideration money. The learned trial judge did not decide the question of limitation and maintainability of the preemption application, but noticed the law laid down in Barasat Eye Hospitl (supra). The learned appellant court rightly pointed out the defects in the decision and held that the right of preemption was not available to the petitioner in view of the delay in deposit. Section 5 of the Limitation Act, is not applicable to condone the delay in depositing the consideration money with 10% of the value set forth.
10. Abdul Matin Mallick vs. Subrata Bhattacharjee (Banerjee) reported in AIR 2022 SC 2175, was a
decision of the Hon‟ble Apex Court in which the issue of short deposit by a non-notified co-sharer, and objection to the inflated amount of consideration money quoted in sale deed were under consideration. The Hon‟ble Apex Court relied on the decision of Barasat Eye Hospital (Supra) and held as hereunder:
"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 14-8-2001 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. The sale in favour of the appellant by the daughters of the said Khudiram Bhattacharya was sought to be pre-empted by the sons of said Khudiram Bhattacharya on the ground that their sisters have transferred their undivided share in the property in question to the appellant, a stranger to the said property without serving statutory notice under sub-section (5) of 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.
6.2. The submission/contention on behalf of the pre-emptee that, as in the present case, along with the pre-emption application, the preemptors did not deposit entire sale consideration with 10% additional sale consideration, and therefore their pre-emption 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 entire sale consideration with additional 10% of the sale consideration along with 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 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 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 subject-matter 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 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 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 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 nonfulfilment 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 pre-emptors 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), 2019 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, pre-emption application submitted by 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."
11. In the case of Chitta Ranjan Mishra Vs. Subrata Majhi & Ors. passed in CO 451 of 2023 this court had discussed the scope and effect of the decision in Barasat Eye Hospital (Supra). It was held to be a law - declared having retrospective effect. The relevant paragraphs 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 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 co-sharership. The first appellate court allowed deposit of balance consideration money. Aggrieved, the pre-emptee approached the High Court.
The High Court dismissed 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.
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 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. In the present case, the learned trial judge, although, noted the decision of Barasat Eye Hospital (Supra) and recognized that the application for preemption was not filed along with the consideration money mentioned in the deed of sale along with 10% of the value set forth, illegally permitted the petitioner to deposit the same after conclusion of trial and within 30 days from the date of delivery of judgment. Such order was totally contrary to law and the decisions laid down by the Hon‟ble Apex Court and this court.
13. The learned appellate court rightly appreciated the law and allowed the appeal.
14. Under such circumstances, the revisional application fails and is accordingly dismissed.
15. As the petitioner has already been permitted by the learned appellate court to withdraw the sum deposited, the petitioner shall approach the trial court.
16. Parties are to act on the server copy of this judgment. (Shampa Sarkar, J.)