JPD -12-13 Ct No.01

31.07.2025 (sss)

Calcutta High Court In The Circuit Bench at Jalpaiguri Appellate Side CO 113 of 2025 With CO 114 of 2025 Sri Navin Agarwal and Ors.

Vs.

Sri Sanjay Kumar Agarwal and Anr.

Mr. Ajay Singhal, Ms. Paramita Choudhury, Ms. Heena Yasmin Shaikh ….For the petitioners.

Mr. Partha Pratim Roy, Mr. Debasish Mukherjee, Mr. Partha Choudhury, Ms. Sristi Sarkar, Mr. Subrata Sarkar …for the Opposite Party no. 1.

1. Affidavit of service filed today be kept on record.

2. An interesting question has been raised in the present case. Both the courts below rejected the application under Section 8 of the West Bengal Land Reforms Act, 1955 filed by the revisionist petitioners for pre-emption on the dual grounds of contiguous ownership and non-notified co-sharership.

3. Learned counsel for the petitioners argues that the learned courts below failed to take into consideration the fact that simultaneously with the filing of the pre-emption application on October 16, 2023, the petitioner, in a bid to deposit the entire statutory deposit, applied for a challan which has been annexed at page 167 of the revisional application. The challan was sanctioned and handed over to the petitioners on the next day, i.e. on October 17, 2023. However, since the Treasury, where the deposit was to be physically made, was closed between October 18 and November 1, 2023, the deposit could not be made with the Treasury before November 2, 2023 when it was actually made.

4. Thus, it is argued that the deposit was made well within time. Since the date of cause of action pleaded in the pre-emption application is July 7, 2023, the filing of the application for pre- emption as well as the deposit ought to be construed to be October 16, 2023, which was within the limitation period of four months, as stipulated under Section 8(1) of the 1955 Act for the ground of contiguous ownership, as well as within the limitation period of one year for the ground of non-notified co-sharership.

5. Learned counsel for the petitioners places reliance on the judgment of the Division Bench judgment of this court in the matter of Nurul Islam vs. Esratun Bibi reported at 2017 SCC OnLine Cal 11063 for the proposition that if an application for pre-emption under Section 8 is filed on the ground for non-notified co-sharership, Article 97 of the Limitation Act, 1963 applies and the period of limitation shall be construed to be one year.

6. It is further argued that the learned courts below misconstrued the judgment rendered by the Supreme Court in Barasat Eye Hospital and Ors. vs. Kaustabh Mondal reported at (2019) 19 SCC 767, since in the said judgment, the Supreme Court observed that there cannot be any speculative litigation without the deposit of full consideration and as such, the application for pre-emption would not be “triggered” unless the entire amount was paid. Read in conjunction with the provisions of Sections 8(1) and 9(1) of the 1955 Act, it is argued, the deposit, even if not made simultaneously with the application, has to be made within the limitation period.

7. Learned counsel for the pre-emptee/ opposite party no. 1 opposes the revisional application and cites Abdul Matin Mallick vs. Subrata Bhattacharjee (Banerjee) and Ors.

reported at (2022) 7 SCC 147 where the proposition laid down in Barasat Eye Hospital was considered by the Hon‟ble Supreme Court. Upon such consideration, it was observed by the Hon‟ble Supreme Court that deposit of the entire sale consideration with additional 10% of the sale consideration has to be made along with the pre- emption application, which is a statutory and mandatory requirement and is a pre-condition before any further enquiry as contemplated under Section 9 of the Act is held.

8. Thus, the proposition sought to be advanced by the petitioners, it is argued, to the effect that a deposit can be made subsequent to the filing of the pre-emption application as well, is not tenable in the eye of law.

9. Learned counsel for the opposite part