Back
SUPREME COURT OF INDIA
Sanjay Kishan Kaul, K.M. Joseph, JJ.
BARASAT EYE HOSPITAL & ORS. – Appellant(s)
VERSUS
KAUSTABH MONDAL – Respondent
CIVIL APPEAL NO. 1090 OF 2010
Decided On : 17-10-2019
(a) West Bengal Land Reforms Act, 1955 - Sections 8, 9 - Right of pre-emption - A very weak right - Provision for its enforcement should be strictly construed. (Para 12)
(b) West Bengal Land Reforms Act, 1955 - Sections 8, 9 - Right of pre-emption - Application must be filed within time limits prescribed u/s 8 - Section 5 of Limitation Act, 1963 has no application - No question of any equity. (Para 13, 22, 33, 34)
(c) West Bengal Land Reforms Act, 1955 - Sections 8 - Requirement of deposit of the full stated purchase money and 10% of the purchase amount as precondition - In absence of such deposit, right of a pre-emptor is not even triggered off. (Para 24)
(d) West Bengal Land Reforms Act, 1955 - Sections 9 - Deposit mentioned in sub-section (1) of section 8 being made is precondition for operation of section 9. (Para 25)
(e) West Bengal Land Reforms Act, 1955 - Section 8, 9 - Interpretation - Absence of ‘penal provisions’ - No role in interpretation of the provisions. (Para 29)
(f) West Bengal Land Reforms Act, 1955 - Section 8, 9 - Giving discretion to pre-emptor to deposit any amount pending enquiry - Would lead to and encourage speculative litigation - Would make a weak right into a ‘speculative strong right’. (Para 31, 32)
(g) West Bengal Land Reforms Act, 1955 - Section 8, 9 - Pre-emptor failing in his endeavour - Must get refund of his amount deposited with interest. (Para 35, 36)
Facts of the case:
Right of pre-emption, and the manner of its application under the West Bengal Land Reforms Act, 1955 is the issue in this appeal.
The appellants purchased the suit land from the raiyat holder of land by a registered Sale Deed for Rs.5,21,000/-. The respondent is a raiyat holder of land contiguous to the suit land, sharing a common boundary line with the same. The respondent sought to exercise his right of pre-emption under Section 8 of the said Act on the ground of vicinage. The respondent sought to dispute the apparent consideration set out in the Sale Deed by alleging that only a sum of Rs. 2,50,000/-had been paid as consideration for sale, and that an inflated sum had been set out in the Sale Deed as a result of collusion and conspiracy between the transferor and the transferee - the appellants herein. On the basis of this assertion, the application was accompanied with only a deposit of Rs. 2,75,000/-, consisting of Rs.2,50,000/-as the principal consideration and Rs.25,000/-as the further levy of 10% on the principal consideration, in accordance with Section 8 of the Act. The respondent sought leave to deposit any further sum, as may be determined by the court, at the time of trial.
The trial court found in favour of the respondent by opining that firstly, the actual consideration amount had to be proved by the transferee and secondly, on such inquiry being made, the balance could be deposited on a direction by the court. The court further opined that the sum was non-refundable since no specific provision was made regarding repayment of the excess consideration, if any.
The appellants filed Misc. Appeal before the Additional District Judge and succeeded in that appeal. The conclusion of the appellate court was predicated on a reasoning that it was really not the jurisdiction of the court to decide the value of the suit property, and that Section 8(1) of the said Act clearly sets out that the person enforcing the right of pre-emption is required to deposit the full amount as “shown in the sale deed” between the transferor and the “stranger purchaser”.
The respondent preferred a petition before the High Court. After the first appellate court passed the order, the trial court passed another order directing the respondent to deposit the balance amount in terms of the order of the appellate Court, and this order was also challenged in another petition,. The High Court allowed both these applications
Finding of the Court:
Deposit of full consideration amount as shown in sale deed with 10% levy is precondition for invoking the right of pre-emption.
Result: Appeal allowed.
JUDGMENT
SANJAY KISHAN KAUL, J.
1. The right of pre-emption holds its origination to the advent of the Mohammedan rule, based on customs which came to be accepted in various courts largely located in the north of India. This law is stated to be largely absent in the south of India on account of the fact that it never formed a part of Hindu law in respect of property. However, this law came to be incorporated in various statutes, both, prior to the Constitution of India (for short ‘the Constitution’) coming into force, and even post that Bhau Ram v. Baij Nath Singh & Ors., AIR 1962 SC 1476. The constitutional validity of such laws of pre-emption came to be debated before the Constitution Bench of this Court, in Bhau Ram (Supra). There are different views expressed by the members of the Constitution Bench of five Judges, and also dependent on the various State legislations in this regard. Even though there were views expressed that this right of pre-emption is opposed to the principles of justice, equity and good conscience, it was felt that the reasonableness of these statutes has to be appreciated in the context of a society where there were certain privileged classes holding land and, thus, there may have been utility in allowing persons to prevent a stranger from acquiring property in an area which has been populated by a particular fraternity or class of people. This aspect was sought to be balanced with the constitutional scheme, prohibiting discrimination against citizens on the grounds of only religion, race, caste, sex, place of birth or any of them, under Article 15 of the Constitution, and the guarantees given to every citizen to acquire, hold and dispose of property, subject only to the test of reasonable restriction and the interest of general public.
2. With the passage of time, such laws of pre-emption, which existed in many States were abrogated, and it is only within a limited jurisdiction that it now prevails. One such enactment still in existence is the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the ‘said Act’), an enactment with which we are concerned, and it is this very right of pre-emption, and the manner of its application under the said act, which was debated before us. The Preamble of the said Act sets forth the tone as under:
“An Act to reform the law relating to land tenure consequent on the vesting of all estates and of certain rights therein [and also to consolidate the law relating to land reforms] in the State”
3. The category of land holders are defined under Section 2 of the said Act, and the relevant two provisions are extracted hereinunder:
“2. Definitions.—In this Act, unless there is anything repugnant in the subject or context,— ….…. …. …. …. ….
(2) "bargadar" means a person who under the system generally known as adhi, barga or bhag cultivates the land of another person on condition of delivering a share of the produce of such land to that person; [and includes a person who under the system generally known as kisani [or by any other description] cultivates the land of another person on condition of receiving a share of the produce of such land from that person;]
[, but does not include a person who is related to the owner of the land as—
[Explanation.—A bargadar shall continue to be a bargadar until cultivation by him is lawfully terminated under this Act;]”
….…. …. …. …. ….
“[(10) “raiyat” means a person or an institution holding land for any purpose whatsoever;]”
4. The two relevant Sections for enforcement of the right of pre-emption are Sections 8 & 9 of the said Act, and we proceed to extract only the relevant part of the same:
“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]
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
