Judicial Analysis Court Copy Headnote Facts Arguments Court observation

IN THE HIGH COURT OF CALCUTTA
Harish Tandon, J.
Pradipta Padha and Others – Applicants
Versus
Laxmi Kanta Maity and Another – Opposite Parties
C.O. No. 411 of 2015
Decided On : 09-03-2015

Advocates Appeared:
For the Applicants :Mr. Abdul Mokim, Mr. Altaf Hossain and Mr. S.K. Humayan Reja, Advocates.
For the Opposite Party :Mr. Haradhan Banerjee, Mr. Amitava Pain, Mr. Subrangshu Dutta and Mr. Partha Pratim Mukherjee, Advocates.

The deposit of consideration money and 10% thereof is not mandatory at the time of making an application under Section 8 of the West Bengal Land Reforms Act, 1955. The non-deposit of the consideration money and compensation does not entail the dismissal of the application. The deposit can be made under the order of the Court when the application for preemption is allowed.

Headnote:
PREEMPTION - DEPOSIT OF CONSIDERATION MONEY - WEST BENGAL LAND REFORMS ACT, 1955 - SECTION 8 - Deposit of consideration money and 10% thereof not mandatory at the time of making an application under Section 8 of the Act - Non-deposit does not entail dismissal of the application - Deposit can be made under the order of the Court when the application is allowed.
Fact of the Case:

The petitioner, a preemptor, filed an application under Section 8 of the West Bengal Land Reforms Act, 1955, seeking preemption of a plot of land transferred to the respondent. The petitioner did not deposit the consideration money and 10% thereof along with the application. The trial court dismissed the application on the ground that the deposit of consideration money and compensation was mandatory at the time of making the application.
Finding of the Court:

The High Court held that the deposit of consideration money and 10% thereof is not mandatory at the time of making an application under Section 8 of the West Bengal Land Reforms Act, 1955. The non-deposit of the consideration money and compensation does not entail the dismissal of the application. The deposit can be made under the order of the Court when the application for preemption is allowed.
Issues: Whether the deposit of consideration money and 10% thereof is mandatory at the time of making an application under Section 8 of the West Bengal Land Reforms Act, 1955?
Ratio Decidendi: The High Court relied on the following principles in reaching its decision: - The language employed in Section 8 of the West Bengal Land Reforms Act, 1955, does not make it imperative to deposit the consideration money and compensation at the time of making a preemption application. - The penal consequences provided in Section 26F of the Bengal Tenancy Act, 1938, for non-deposit of consideration money and compensation are absent in Section 8 of the West Bengal Land Reforms Act, 1955. - The Division Bench of the High Court in Jyotish Chandra Sardar v. Hira Lal Sardar held that the verb "apply" in Section 8 of the Act is relatable to the period of limitation provided therein and not to the deposit of consideration money and compensation. - The consistent view of the High Court for the last three decades has been that non-deposit of full consideration money is not fatal to an application under Section 8 of the Act.
Final Decision: The High Court set aside the judgment of the trial court and allowed the revisional application filed by the petitioner.

JUDGMENT :

Harish Tandon, J.

1. The question, therefore, in this revisional application is whether the pre-emptor is mandatorily required to deposit the consideration money together with a further sum of 10% of that amount at the time of making an application under Section 8 of the West Bengal Land Reforms Act, 1955. Before proceeding to deal with the above question, it would be profitable to quote the relevant provisions from the said Act which are reproduced as below:

"Sec 8. Right of purchase by co-sharer or contiguous tenant - (1) If a portion or share of a plot of land of a raiyat is transferred to any person other than a co-sharer of a raiyat in the plot of land, the bargadar in the plot of land may, within three months of the date of such transfer, or any co-sharer of a raiyat in the plot of land 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 plot of land may, within four months of the date of such transfer, apply to the Munsiff having territorial jurisdiction, for transfer of the said portion or share of the plot of land to him, subject to the limit mentioned in section 14M, on deposit of the consideration money together with a further sum of ten per cent of that amount:

Provided that if the bargadar in the plot of land, a co-sharer of raiyat in a plot of land and a raiyat possessing land adjoining such plot of land apply for such transfer, the bargadar shall have the prior right to have such portion or share of the plot of land transferred to him, and in such a case, the deposit made by others shall be refunded to them:

Provided further that where the bargadar does not apply for such transfer and a co-sharer of a raiyat in a plot of land and a raiyat possessing land adjoining such plot of land both apply for such transfer, the former shall have the prior right to have such portion or share of the plot of land transferred to him, and in such a case, the deposit made by the latter shall be refunded to him:

Provided also that as amongst raiyats possessing lands adjoining such plot of land preference shall be given to the raiyat having the longest common boundary with the land transferred.

(2) Nothing in this section shall apply to-

(a) a transfer by exchange or by partition, or

(b) a transfer by bequest or gift, or hiba-bil-ewaz, or

(d) a transfer for charitable or religious purposes or both without reservation of any pecuniary benefit for any individual, or

(e) a transfer of land in favour of a bargadar in respect of such land if after such transfer, the transferee holds as a raiyat land not exceeding one acre (or 0.4047 hectare) in area in the aggregate.

Explanation.- All orders passed and the consequences thereof under sections 8, 9 and 10 shall be subject to the provisions of Chapter IIB.

(3) Every application pending before a Revenue Officer at the commencement of section 7 of the West Bengal Land Reforms (Amendment) Act, 1972 shall, on such commencement, stand transferred to, and disposed of by, the Munsif having jurisdiction in relation to the area in which the land is situated and on such transfer every such application shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provision of this Act, as amended by the West Bengal land Reforms (Amendment) Act, 1972."

9. Revenue Officer to allow the application and apportion lands in certain cases.-(1) On the deposit mentioned in sub-section (1) of section 8 being made, the Munsif shall give notice of the application to the transferee, and shall also cause a notice to be affixed on the land for the information of persons interested. On such notice being served, the transferee or any person interested may appear within the time specified in the notice and prove the consideration money paid for the transfer and other sums, if any, properly paid by him in respect of the lands including any sum p

Click Here to Read the rest of this document

Judicial Analysis

IN THE HIGH COURT OF CALCUTTAHarish Tandon, J.Pradipta Padha and Others – ApplicantsVersusLaxmi Kanta Maity and Another – Opposite PartiesC.O. No. 411 of 2015Decided On : 09-03-2015

Cases Referred (2)

Judicial Analysis

IN THE HIGH COURT OF CALCUTTA
Harish Tandon, J.
Pradipta Padha and Others – Applicants
Versus
Laxmi Kanta Maity and Another – Opposite Parties
C.O. No. 411 of 2015
Decided On : 09-03-2015