An application for pre-emption under Section 8(1) of the West Bengal Land Reforms Act, 1955, cannot be rejected solely due to a short deposit of the consideration money, and the Revenue Officer has no jurisdiction to dismiss such an application on that ground.

( 1 ) THIS Rule is directed against an appellate order passed in an appeal under Section 9 (6) of the West Bengal Land Reforms Act, 1955. A short and interesting point arises for consideration in the present Rule is, whether an application for pre-emption under Section 8 (1) of the West Bengal Land Reforms Act (hereinafter referred to as the Act) is liable to be rejected when a co-sharer of a holding made a short deposit of the consideration money at the time of filing such application.

( 2 ) THE petitioner filed an application under Section 8 (1) of the Act and deposited Rs. 750/- being the value of the land as stated in the kobala, hut he did not deposit Rs. 250/- being the value of the structure mentioned in the Conveyance because, according to him, there was no structure on the land, as such the value of the structure stated in the kobala was a fictitious one. The Revenue Officer dismissed the petitioner's application for preemption on two grounds viz. , that the required consideration money was not deposited by the petitioner and the lands were not agricultural lands. On appeal, the appellate tribunal found that the lands were agricultural lands but dismissed the petitioner's appeal, upon the view, that the petitioner failed to comply with the statutory obligation cast upon him in the matter of depositing the consideration money together with compensation thereon. The petitioner being aggrieved against the said appellate order, moved this Court on an application under Article 227 of the Constitution and obtained the present Rule.

( 3 ) MR. Roy, appearing in support of the Rule contended, that the learned Munsif failed to consider that the petitioner specifically raised a dispute as regards the quantum of consideration money paid by the opposite party. The Revenue Officer under Section 9 (1) of the Act after determining the said dispute should have directed the petitioner to deposit such further amount within a specified time. If the petitioner failed to deposit such amount within such time, in that case only, the petitioner's application under Section 8 (1) of the Act should have been dismissed. The Revenue Officer has got no power or jurisdiction to dismiss the petitioner's application on account of short deposit of the consideration money.

( 4 ) ADMITTEDLY the present petitioner is a non-notified co-sharer. Article 137 of the New Limitation Act corresponding to Article 181 of the Old Act apply to an application by a co-sharer who has not been served with a notice of transfer under Section 5 (5) of the Act and his application would be in time, if made within three years from the date of the transfer (Vide, Asmatali Sharip v. Mujaharali Sardar, 52 Cal WN 64 = (AIR 1948 Cal 48 (SB) ). Therefore, the application for pre-emption in the instant case is within time.

( 5 ) UNDER Section 26-F (2) of the Bengal Tenancy Act, unless the applicant at the time of making an application for pre-emption deposits in the Court the amount of consideration money his application shall be dismissed. Similar provisions are to be found in Sub-section (2) of Section 24 of the West Bengal Non-Agricultural Tenancy Act. But such provisions are absent in Section 8 of the Act.

( 6 ) A single Bench decision of this Court held in Sachindra Nath Chakraborty v. Trailakyanath Chakraborty, 40 Cal WN 1023 = AIR 1936 Cal 576 = ILR (1937) 1 Cal 112, that the Court has no power to extend the time for making a deposit by a co-applicant beyond the period of time mentioned in Clause (a) of Sub-section (4) of Section 26-F of the Bengal Tenancy Act. A Division Bench of this Court in Nural Hossain Mallick v. Mihilal Sheikh, AIR 1948 Cal 144, dissented from the above single Bench decision and held, that an application for pre-emption under Section 26-F of the Bengal Tenancy Act will not be dismissed if the circumstances are such that the deposit may be deemed to have been made at the time of making the application.

( 7 ) ANOTHER Divis