Pre-emption by contiguous land possessor under Section 8(1) barred if beyond four months from transfer date; limitation not from knowledge as no notice mandated; clear provision not read down.

ORDER :

1. Leave granted.

Facts

2. The appellant had set-up a claim of pre-emption under sub-section (1) of Section 8 of the WEST BENGAL LAND REFORMS ACT , 1955 (hereinafter referred to as ‘the 1955 Act’) being owner/ raiyat possessing land contiguous to the land under transfer.

3. Admittedly, the application under subsection (1) of Section 8 of the 1955 Act was submitted after 17 months from the date of transfer. Therefore, the second and third respondents (i.e., transferees) filed an application to reject appellant’s application on the ground that the owner/ raiyat possessing contiguous land could exercise the right within four months of the date of transfer and not later.

4. The Court of first instance accepted respondents’ plea and rejected the application holding the same to be ex facie barred by limitation prescribed by the 1955 Act.

5. Aggrieved therewith, an appeal was preferred.

6. The Appellate Court observed that, though Section 5 of the Limitation Act, 1963 is not applicable to original proceedings, the application cannot be rejected at the threshold on the ground of limitation. More so, when the case of the applicant is that he was not served notice of the transfer. The Appellate Court therefore set aside the order passed by the Court of first instance.

7. Aggrieved by the Appellate Court’s order, the second and third respondents filed a revision before the High Court¹[The High Court at Calcutta] under Article 227 of the Constitution of India.

8. The High Court held that the right of pre-emption as conferred upon the raiyat possessing land contiguous to the land under transfer could be exercised within four months from the date of transfer and since the application under sub-section (1) of Section 8 of the 1955 Act was submitted much beyond four months, the same being ex facie barred by limitation was rightly rejected by the Court of first instance. Accordingly, the High Court, vide impugned order dated 08.04.2019, set aside the order of the Appellate Court and restored the order of the Court of first instance.

9. Aggrieved by the order of the High Court, this appeal has been filed.

10. We have heard learned counsel for the parties and have perused the materials placed on record.

Submissions

11. The submission on behalf of the appellant is that unless the transfer is brought to the notice of the pre-emptor, the pre-emptor would not be able to avail his right, therefore the requirement of notice of the proposed transfer to the pre-emptor would have to be read into the provision and if no notice is given, then the pre-emptor must be deemed to have right of pre-emption within four months from the date of knowledge of such transfer. It was submitted that since no notice was provided to the appellant, the limitation for filing the application would have to be counted from the date of knowledge. To support his submissions, learned counsel relied on a decision of this Court in Chhana Rani Saha vs Mani Pal @ Kaltu Pal , Civil Appeal No.5905 of 2009 decided on 15.11.2017. Therein this Court had observed that the Trial Court had rightly allowed the ownership of the land in question, since it was found that the vendor did not give notice of sale to the appellant therein. In that light, it was argued that the Appellate Court was justified in holding that since the appellant was not served notice of the transfer, the pre-emption application could not have been