TMI Blog2019 (10) TMI 1560X X X X Extracts X X X X X X X X Extracts X X X X ..... ntext that it was observed that such a right can be defeated by all legitimate methods, such as a vendee allowing the claimant of a superior or equal right to be substituted in its place. This is not a right where equitable considerations would gain ground. The second aspect of importance is that given the aforesaid position, even the time period for making the deposit, Under Section 8(1) of the said Act, has been held to be sacrosanct, in view of the judgment of this Court in the Gopal Sardar [ 2004 (3) TMI 743 - SUPREME COURT] case. The very provision of Section 8(1) of the said Act came up for consideration and, as held in that case, if the time period itself cannot be extended and if Section 5 of the Limitation Act would not apply, while interpreting Section 8 of the said Act, then the requirement of deposit of the amount along with the application, within the time stipulated is sacrosanct. The amount to be deposited is not any amount, as that would give a wide discretion to the pre-emptor, and any pre-emptor not able to pay the full amount, would always be able to say that, in his belief, the consideration was much lesser than what had been set out. Now turning to Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondent can now be granted time to deposit the balance amount? - HELD THAT:- 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. 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 - 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. The Respondent is entitled to the refund of the amount deposited by him, together with interest, if any, earned on the same, in case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment still in existence is the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the 'said Act'), an enactment with which we are concerned, and it is this very right of pre-emption, and the manner of its application under the said act, which was debated before us. The Preamble of the said Act sets forth the tone as under: An Act to reform the law relating to land tenure consequent on the vesting of all estates and of certain rights therein [and also to consolidate the law relating to land reforms] in the State 3. The category of land holders are defined Under Section 2 of the said Act, and the relevant two provisions are extracted hereinunder: 2. Definitions.--In this Act, unless there is anything repugnant in the subject or context,-- .... ..... .... .... .... 2) bargadar means a person who under the system generally known as adhi, barga or bhag cultivates the land of another person on condition of delivering a share of the produce of such land to that person; [and includes a person who under the system generally known as kisani [or by any other description] cultivates the land of another person on condition of receiving a share of the produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been paid by the transferee or the person interested plus ten per cent of the consideration money be paid to the transferee or the person interested out of the money in deposit, the remainder, if any, being refunded to the applicant. The Munsif shall then make a further order that the portion or [share of the plot of land] be transferred to the Applicant and on such order being made, the portion or [share of the plot of land] shall vest in the applicant. Facts: 5. Now turning to the limited contours of the facts of the present case. The Appellants before us purchased the suit land from the raiyat holder of land, being R.S. Plot No. 488, measuring 15 decimals, located in Mouza Kalikapur, Barasat, West Bengal, in pursuance of the registered Sale Deed dated 27.5.2005. The stated consideration under the Sale Deed is Rs. 5,21,000/-. The Respondent before us is a raiyat holder of land contiguous to the suit land, sharing a common boundary line with the same. The Respondent, thus, sought to exercise his right of pre-emption Under Section 8 of the said Act by filing Misc. Case No. 19/2005 before the Civil Judge (Junior Division), 3rd Court, Baruipur, on the ground of vicinage. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2008. The conclusion of the appellate court was predicated on a reasoning that it was really not the jurisdiction of the court to decide the value of the suit property, and that Section 8(1) of the said Act clearly sets out that the person enforcing the right of pre-emption is required to deposit the full amount as shown in the sale deed between the transferor and the stranger purchaser . 9. It was now the turn of the Respondent to assail this order by preferring a petition, being CO No. 1289/2008, Under Article 227 of the Constitution, before the High Court of Calcutta, under its civil revisionary jurisdiction. It may be added herein that after the first appellate court passed the order, the trial court passed another order dated 7.4.2008, directing the Respondent to deposit the balance amount in terms of the order of the appellate Court, and this order was also challenged in another petition, being CO No. 1291/2008. The High Court allowed both these applications vide order dated 24.7.2008. In construing the jurisdiction of the court in cases of pre-emption, as set out in Sections 8 9 of the said Act, the High Court opined that a pre-emptor was entitled to raise an issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uperior to that of the vendee. Such superior right has to subsist at the time when the pre-emptor exercises his right. The position is thereafter summarized in the following terms: 11. ...... (1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re-purchase i.e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the Plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place. 12. We would like to emphasise an important aspect which emerges from the aforesaid that, apart from the elucidation of the legal position in this behalf, right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(i), no pre-emption application shall be entertained by the Collector unless the purchase money together with a sum equal to 10% thereof is deposited by the person claiming right of pre-emption in the prescribed manner within the said period [Kedar Mishra v. State of Bihar (supra)] 15. We are conscious of the fact that the proviso begins with a negative connotation of no such application shall be entertained , but yet the observations are relevant and germane. Rival Contentions: 16. Learned Counsel for the Appellants sought to rely on the elucidation of the right of pre-emption, as set out in the Bishan Singh and Ors. [supra] case, to contend that the right being defined as a very weak right , the provisions of the Section should be read as they are. Section 8(1) of the said Act prescribes that the right has to be exercised on deposit of the consideration money together with further sum of 10% of that amount: ... Thus, the trigger for the very right has to be the full stated consideration plus (+) 10% of the consideration amount. The question of recourse to Section 9, it was thus contended, would not arise till the amount was so deposited, and within the given time. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus, despite the endeavour of the pre-emptor to deposit the amount, such amount could not be deposited. An important aspect examined, while distinguishing the views taken in respect of the Bengal Tenancy Act, 1885 and of the West Bengal Non-Agricultural Tenancy Act, 1949, was that those enactments provided for penal consequences and, thus, construction of those provisions would have to be different, as compared to the said Act. Discussion: 21. We have examined the rival contentions of the parties and considered it appropriate to set forth the history of the right of preemption, as it may possibly have larger ramifications, especially when we are informed that there are other cases pending consideration before the Calcutta High Court. 22. The historical perspective of this right was set forth by the Constitution Bench of this Court, as far back as in 1962, in the Bhau Ram [supra] case. The judgment in the Bishan Singh and Ors. [supra] case preceded the same, where different views, expressed in respect of this law of preemption, have been set out, and thereafter the position has been summarized. There is no purpose in repeating the same, but, suffice to say that the reme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money and 10% of the purchase amount. In our view, it makes no difference that the proviso in Section 16(3) of that Act states that ...no such application shall be entertained... , in the context of filing of applications, without the deposit of the full amount. We may say so because, if we turn to Section 8(1) of the said Act, 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. 25. 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper, but the full amount has to be deposited, and if found in excess on inquiry, be refunded to the applicant. 28. 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. 29. 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 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. Captain 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. 35. We may add here that 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. 36. The aforesaid being the position, 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. 37. The appeal is accordingly allowed in the aforesaid terms, leaving the parties to bear their own costs. 38. We hope th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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