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HIGH COURT OF CALCUTTA
P. N. MUKHERJEE, AMIYA NIMAI CHAKRABARTI
JYOTISH CHANDRA SARDAR - Appellant
Versus
HIRA LAL SARDAR - Respondent
Civil Revisional Jurisdiction . Of .
Decided On : October 7, 1969
LAND REFORMS - WEST BENGAL LAND REFORMS ACT, 1955 - SECTION 8(1) - CONSTITUTIONALITY - PRE-EMPTION ON GROUND OF CONTIGUITY OF LANDS - REASONABLE RESTRICTION - ARTICLE 19(1)(F) OF THE CONSTITUTION - NINTH SCHEDULE TO THE CONSTITUTION, ITEM 60 - ARTICLE 31B OF THE CONSTITUTION - INTERPRETATION - EFFECT OF INCLUSION OF THE ACT IN THE NINTH SCHEDULE - DEPOSIT OF CONSIDERATION MONEY AND COMPENSATION - TIME LIMIT - EXTENSION OF TIME - REGISTRATION OF SALE DEED - MATERIAL DATE FOR COMPUTATION OF LIMITATION - MULTIPLE PRAYERS FOR PRE-EMPTION IN RESPECT OF DIFFERENT TRANSFERS - MAINTAINABILITY - TRANSFER IN FAVOUR OF CO-SHARER - APPLICABILITY OF SECTION 8(1) OF THE ACT.
Fact of the Case:
In two separate cases, the petitioners, who were raiyats possessing lands adjoining the holdings transferred, applied for pre-emption under Section 8(1) of the West Bengal Land Reforms Act, 1955. The transferees challenged the constitutional validity of Section 8(1) on the ground that it infringed the fundamental right to hold, acquire, and dispose of property guaranteed by Article 19(1)(f) of the Constitution. The petitioners argued that the law of pre-emption on the ground of vicinage served a public purpose by promoting consolidation of holdings and was, therefore, a reasonable restriction on the right to property.
Finding of the Court:
The court held that the law of pre-emption on the ground of vicinage served a public purpose by promoting consolidation of holdings and was, therefore, a reasonable restriction on the right to property. The court also held that the inclusion of the West Bengal Land Reforms Act in the Ninth Schedule to the Constitution, being the 60th item thereof, provided immunity to the Act from any attack on the ground that it infringed part III of the Constitution, including Article 19(1)(f). The court further held that the deposit of consideration money and compensation under Section 8(1) of the Act need not be made within four months of the date of transfer and that the time limit for making the deposit could be extended by the Revenue Officer dealing with the pre-emption application. The court also held that the period of limitation for filing an application for pre-emption under Section 8(1) of the Act should be computed from the date of registration of the sale deed and not from the date of its execution. The court further held that multiple prayers for pre-emption in respect of different transfers could be joined in the same petition and that Section 8(1) of the Act did not apply to transfers in favor of co-sharers in the holding.
Issues: 1. Whether Section 8(1) of the West Bengal Land Reforms Act, 1955, is constitutionally valid insofar as it gives the adjoining owner the right of pre-emption on the ground of contiguity of lands. 2. Whether the deposit of consideration money and compensation under Section 8(1) of the Act must be made within four months of the date of transfer. 3. Whether the time limit for making the deposit can be extended by the Revenue Officer dealing with the pre-emption application. 4. Whether the period of limitation for filing an application for pre-emption under Section 8(1) of the Act should be computed from the date of registration of the sale deed or from the date of its execution. 5. Whether multiple prayers for pre-emption in respect of different transfers can be joined in the same petition. 6. Whether Section 8(1) of the Act applies to transfers in favor of co-sharers in the holding.
Ratio Decidendi: 1. The law of pre-emption on the ground of vicinage serves a public purpose by promoting consolidation of holdings and is, therefore, a reasonable restriction on the right to property. 2. The inclusion of the West Bengal Land Reforms Act in the Ninth Schedule to the Constitution, being the 60th item thereof, provides immunity to the Act from any attack on the ground that it infringes part III of the Constitution, including Article 19(1)(f). 3. The deposit of consideration money and compensation under Section 8(1) of the Act need not be made within four months of the date of transfer and the time limit for making the deposit can be extended by the Revenue Officer dealing with the pre-emption application. 4. The period of limitation for filing an application for pre-emption under Section 8(1) of the Act should be computed from the date of registration of the sale deed and not from the date of its execution. 5. Multiple prayers for pre-emption in respect of different transfers can be joined in the same petition. 6. Section 8(1) of the Act does not apply to transfers in favor of co-sharers in the holding.
Final Decision: The court discharged the rule in Civil Rule No. 1321 of 1968 and modified the order of the Appellate Authority in Civil Rule No. 1926 of 1968 by rejecting the opposite party's prayer for pre-emption in respect of the ga schedule land. No order was made as to costs in either case.
( 2 ) IN both the cases, the raiyats holding lands, adjoining the holdings, transferred, applied for pre-emption under sub-section (1) of Section 8 of the West Bengal Land Reforms Act.
( 3 ) SUB-SECTION (1) of Section 8 of the above Act runs as follows: if a portion of share of a holding of a raiyat is transferred to any person other than a co-sharer in the holding, any co-sharer in the holding, any co-sharer raiyat of the holding may, within three months of the service of the notice, given under sub-section (5) of Section 5, or any raiyat, possessing land adjoining such holding, may, within four months of the date of such transfer, apply to the Revenue Officer, specially empowered by the State Government in this behalf, for transfer of the said portion or share of the holding to him, subject to the limit, mentioned in sub-section (3) of Section 4, on deposit of the consideration money together with a further sum of ten per cent of that amount: provided that if a co-sharer raiyat and a raiyat possessing land adjoining such holding, both apply for such transfer, the former shall have the prior right to have such portion or share of the holding transferred to him and, in such a case, the deposit made by the latter shall be refused to him: provided further that, as amongst raiyat possessing lands adjoining such holding, preference shall be given to the raiyat, having the longest common boundary with the land transferred.
( 4 ) IT is contended that the above sub-section, insofar as it allows pre-emption on the ground of contiguity of lands, is void as it in fringes the fundamental right to hold, acquire and dispose of property, guaranteed by sub-clause (f) of Art. 19 (1) of the Constitution. In support of this contention of theirs, the learned Advocates appearing for the petitioners, have referred to the decision of the Supreme Court in (1) Bhau Ram v. Baij Nath Singh, AIR 1962 SC 1476: (1962)1 SCA 368. In that case, their Lordships had to consider the constitutionality of the provisions, regarding pre-emption, as contained in Section 10 of the Rewa State Pre-emption Act, 1946, Section 16 of the Punjab Pre-emption Act (I of 1913) and Chap. XIV of the Berar Land Revenue Code, 1928. It will not be necessary for our present purpose to refer to the Punjab Act or the Berar Land Revenue Code.
( 5 ) SECTION 10 of the Rewa Act was in these terms : class of Pre-emptors : Persons of the following classes shall have a right of pre-emption: 1. Any person, who is a co-sharer or partner in the property, sold and foreclosed. 2. Any person, who owns any immovable property, adjoining the property, sold or foreclosed, or, in case of transfer of tenancy rights the land, which is the subject of such rights. Provided that, among the above-mentioned classes, the first in order will exclude the second and, among persons of the same class, the nearer in relationship to the person, whose property is sold or foreclosed will exclude the more remote.
( 6 ) IT will be seen that the second clause of the above Section allows pre-emption on the ground of vicinage and that it is similar to the second ground under the sub-section (1) of Section 8 of the West Bengal Land Reforms Act. But the Rewa Act has certain other special features which also require notice. Under Section 12 of that Act, the vendor has to give notice to the possible pre-emptors of the price at which he desires to sell his property; under Section 13, any of th
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