IMPORTANT POINT
The right of pre-emption under Section 8 of the West Bengal Land Reforms Act is ambiguous regarding the sale of an entire share, necessitating clarification from a larger bench.

JUDGMENT :

Partha Sarathi Sen, J.

1. In the present revision the question of right of preemption in case of sale/conveyance of the entire share of a raiyat is relevant. Section 8 of the West Bengal Land Reforms Act, 1955 (‘1955 Act’ for short) is the relevant provision dealing with the right of preemption. The Section reads thus:

“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 [Munsif 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 a 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] 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 gist [or heba-bill-ewaz,] or

(c) a [* * *] mortgage mentioned in section 7, 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 11B.] [(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 be 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 provisions of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972.]”

2. The cursory reading of the aforesaid provision makes it clear that right of pre-emption is available to the following persons in order of preference (i) bargadar as defined in Section 2 of the Act, (ii) co-sharer of a raiyat, (iii) raiyat holding land adjoining to the land/plot in question.

The opening words of Section 8 refers to portion or share of a plot of land of a raiyat. If we read the word ‘or’ in its generic sense then it is a particle used to connect both the words i.e. ‘portion’ and ‘share’. It may also be read as a disjunctive to separate both the words i.e. ‘portion’ and ‘share’. The aforesaid question as to whether in the event of sale of share of a raiyat the right of pre-emption survives or not has taxed the ingenuity of so many Hon’ble Judges of this Court and various contradictory judgments have been passed by different Benches.

3. There is no definition of ‘portion’ or ‘share’ in the act. If the word ‘or’