BARASAT EYE HOSPITAL & ORS. versus KAUSTABH MONDAL

[2019] 15 S.C.R.

BARASAT EYE HOSPITAL & ORS.

KAUSTABH MONDAL

(Civil Appeal No.1090 of 2010)

BOCTOBER 17, 2019

[SANJAY KISHAN KAUL AND K.M. JOSEPH, JJ.]

West Bengal Land Reforms Act, 1955 – ss. 8 and 9 – Right ofpurchase by co-sharer or contiguous tenant – Exercise of right ofpre-emption – Pre-condition for – Held: Right of pre-emption isCactivated on deposit of the consideration money together with thefurther sum of 10% of that amount – Unless such deposit is made,the right of pre-emptor is not even activated – Provisions of s. 8are explicit and clear in their terms – Inquiry into the statedconsideration, as envisaged in s. 9, is on the deposit of the amountDmentioned in the sale transaction as per sub-section (1) of s. 8 –Thereafter, transferee is given notice who enters appearance withinthe time specified, and proves the consideration money paid for thetransfer “and other sums” – In case pre-emptor raises doubtsregarding the consideration amount, enquiry into the said aspectcan be done only upon payment of the full amount, along with theEapplication – Thus, when the inquiry is being made by the Munsif,whether in respect of the stated consideration, or in respect of anyadditional amounts which may be payable, the pre-requisite of depositof the amount of the stated consideration u/s. 8(1) would be requiredto be fulfilled – Provisions of ss. 8 and 9 must be read as they are –FFull amount has to be deposited – Discretion is not left to thepre-emptor to deposit whatever amount, in his opinion, is theappropriate consideration, in order to exercise right of pre-emption– Amount can always be directed to be refunded, if deposited inexcess – In the instant case, in an application u/ss. 8 and 9,respondent-pre-emptor did not file any material to substantiate evenGthe plea on the basis of which, even if an inquiry was held, could aconclusion be reached that the stated consideration was not themarket value of the land – Thus, the order passed by the High Courtthat application u/ss. 8 and 9 could be entertained on short depositof consideration amount; and only on final adjudication by the

Munsif would the occasion arise to deposit the balance amount, isset aside – Furthermore, there cannot be any extension of timegranted to the respondent to deposit the balance amount now, toexercise such right, however he cannot be deprived of the amountdeposited – Thus, the respondent entitled to the refund of the amountdeposited with interest, if any.

Pre–emption: Right relating to pre-emption – Held: Pre-emptorhas two rights, inherent or primary right, which is right for theoffer of thing about to be sold; and secondary or remedial rightto follow the thing sold – Secondary right is right of substitution,in place of an original vendee – Pre-emptor is bound to show notonly that his right is as good as that of that vendee, but that it issuperior to that of the vendee which has to subsist at the time whenthe pre-emptor exercises his right – Right of pre-emption is veryweak right – Any provision to enforce such right must be strictlyconstrued.

Interpretation of Statutes: Rule of construction – Held:Legislative provisions should be read in their plain grammaticalconnotation, and only in the case of conflicts between differentprovisions would an endeavour have to be made to read them in amanner that they co-exist and no part of the rule is madesuperfluous.

Allowing the appeal, the Court

HELD: 1.1 The pre-emptor has two rights: first, theinherent or primary right, i.e., right for the offer of thing aboutto be sold; and second, the secondary or remedial right to followthe thing sold. The secondary right of pre-emption is simply aright of substitution, in place of an original vendee and the pre-emptor is bound to show not only that his right is as good as thatof that vendee, but that it is superior to that of the vendee. Suchsuperior right has to subsist at the time when the pre-emptorexercises his right. Right is “a very weak right.” That being thecharacter of the right, any provision to enforce such right must,thus, be strictly construed. [Paras 11, 12] [1033-G; 1034-A, D]

1.2 Under Section 8(1) of the West Bengal Land ReformsAct, 1955, the right of pre–emption is activated “on deposit ofthe consideration money together with the further sum of 10%

Aof that amount.” Thus, unless such deposit is made, the right ofa pre–emptor is not even triggered off. The provisions of Section8 are explicit and clear in their terms. As regards s. 9(1), thecommencement of sub-section (1) of Section 9 is with “on thedeposit mentioned in sub-section (1) of section 8 being made”.Thus, for anything further to happen under Section 9 of the saidBAct, the deposit as envisaged under Section 8 of the said Act hasto be made. It is only then that the remaining portion of Section9 of the said Act would come into play. [Paras 24, 25] [1038-G;1039-A-B]

1.3 As regards, the nature of inquiry which has beenCenvisaged to be carried out by the Munsif, if Section 9, as itreads, is perused, then first, the amount as mentioned in the saletransaction is to be deposited, as per sub-section (1) of Section 8of the said Act. Once that amount is deposited, the next stage isfor the Munsif to give notice of the application to the transferee.

DThe transferee thereafter, when enters appearance within thetime specified, can prove the consideration money paid for thetransfer “and other sums.” Such other sums, if any, are as“properly paid by him in respect of the land including any sumpaid for annulling encumbrances created prior to the day of transfer

and rent or revenue, cesses or taxes for any period.” The inquiry,Ethus envisaged, is in respect of the amount sought to be claimedover and above the stated sale consideration in the document ofsale because, in that eventuality further sums would have to becalled for, from the pre–emptor. In that context, the additional

amount would have to be deposited. Even in the event that aFpre–emptor raises doubts regarding the consideration amount,enquiry into the said aspect can be done only upon payment ofthe full amount, along with the application. In this aspect, thephrase “the remainder, if any, being refunded to the applicant”would include to mean the repayment of the initial deposit madealong with the application, if considered to be excess. To giveGany other connotation to these Sections would make both, thelatter part of Section 8 of the said Act and the inception part ofSection 9 of the said Act, otiose. Such an interpretation cannotbe countenanced. [Para 26] [1039-C-G]

1.4 When the inquiry is being made by the Munsif, whetherHin respect of the stated consideration, or in respect of any

additional amounts which may be payable, the pre–requisite ofdeposit of the amount of the stated consideration under Section8(1) of the said Act would be required to be fulfilled. Thephraseology “the remainder, if any, being refunded to theapplicant” would have to be understood in that context. Theword “remainder” is in reference to any amount which, on inquiryabout the stated consideration, may be found to have beendeposited in excess, but it cannot be left at the own whim of theapplicant to deposit any amount, which is deemed proper, but thefull amount has to be deposited, and if found in excess on inquiry,be refunded to the applicant. [Para 27] [1039-G-H; 1040-A-B]

1.5 The pre-requisite to even endeavour to exercise thisweak right is the deposit of the amount of sale consideration andthe 10% levy on that consideration, as otherwise, Section 8(1) ofthe said Act will not be triggered off, apart from making even thebeginning of Section 9(1) of the said Act otiose. There is noinclination to construe the aforesaid provisions otherwise onlyon the ground that there are no so called “penal provisions”included. The provisions of Sections 8 & 9 of the said Act mustbe read as they are. In fact, it is settled rule of constructionthat legislative provisions should be read in their plaingrammatical connotation, and only in the case of conflicts betweendifferent provisions would an endeavour have to be made to readthem in manner that they co–exist and no part of the rule ismade superfluous. The interpretation, as we have adopted, wouldshow that really speaking, no part of either Section 8, or Section9 of the said Act is made otiose. Even if an inquiry takes place inthe aspect of stated consideration, on plea of some fraud orlikewise, and if such finding is reached, the amount can alwaysbe directed to be refunded, if deposited in excess. However, itcannot be said that discretion can be left to the pre-emptor todeposit whatever amount, in his opinion, is the appropriateconsideration, in order to exercise right of pre–emption. Thefull amount has to be deposited. [Paras 28, 29] [1040-C-F]

1.6 As matter of fact, the pre-emptor in the instant case,i.e., the respondent has not filed any material to substantiate eventhe plea on the basis of which, even if an inquiry was held, coulda conclusion be reached that the stated consideration is not the

Amarket value of the land. It is believed that to give such adiscretion to the pre-emptor, without deposit of the fullconsideration, would give rise to speculative litigation, wherethe pre–emptor, by depositing smaller amounts, can drag on theissue of the vendee exercising rights in pursuance of the validsale deed executed. In the instant case, there is sale deedBexecuted and registered, setting out the consideration. Thus,the impugned order and the view adopted would make weakright into ‘speculative strong right’, something which hasneither historically, nor in judicial interpretation been envisaged.[Paras 30–32] [1040-G; 1041-A-B]

1.7 When the direction was so passed, in pursuance of theorder of the appellate court, the respondent still assailed the same.The requirement of exercising the right within the stipulated time,in respect of the very provision has been held to be sacrosanct,i.e., that there can be no extension of time granted even byDrecourse to Section 5 of the Limitation Act. [Para 33] [1041-C-D]

1.8 Once the time period to exercise right is sacrosanct,then the deposit of the full amount within the time is alsosacrosanct. The two go hand-in-hand. It is not case where anapplication has been filed within time and the amount is deficient,Ebut the balance amount has been deposited within the time meantfor the exercise of the right. Such an eventuality may arise, butin that case, the right under the application would be triggeredoff on deposit of the amount which, in turn, would be within thetime stipulated for triggering the right. That not having happened,there cannot be any extension of time granted to the respondentFnow, to exercise such right. This is, of course, apart from thefact that this speculative exercise on behalf of the respondenthas continued for the last fourteen years, by deposit of 50% ofthe amount. [Para 34] [1041-E-F]

1.9 It may not be appropriate to envisage situation whereGa person not succeeding in the right of pre–emption is deprivedof the amount deposited. The vendee cannot appropriate thisamount. The State should not be permitted to appropriate thisamount. Then, the only sequitur would be that the amount shouldbe refunded back to the pre–emptor. The respondent is entitledHto the refund of the amount deposited by him, together with

interest, if any, earned on the same, in case it has been kept in aninterest bearing deposit. [Paras 35, 36] [1041-G; 1042-A]

Sahid Ali v. S.K. Abdul Kasem (1994) 1 CHN 202 ;Bishan Singh & Ors. v. Khazan Singh & Anr. AIR 1958SC 838 ;Dhani Nath v. Budhu 136 P.R. 1894 ;GobindDayal v. Inayatullah. (1885) ILR 7 All 775;MoolChand v. Ganga Jal.(1930) ILR 11 Lahore (F.B.) 258; Gopal Sardar v. Karuna Sardar (2004) 4 SCC 252 ;Kedar Mishra v. State of Bihar (2016) 7 SCC 478;Bishan Singh & Ors. v. Khazan Singh & Anr. AIR 1958SC 838;Sahid Ali v. S.K. Abdul Kasem (1994) 1 CHN202; Jyotish Chandra Sardar v. Hira Lal Sardar ILR1971 (1) Calcutta 213 ;Amitava Shit v. Bablu Kundu2014(1) CHN (Cal) 744 ;Smt. Aparna Maity v. Smt.Purabi Das C.O. No.3859/2015 AGM 2016 decidedon 19th December, 2016 ;Sahid Ali v. S.K. AbdulKasem (1994) 1 CHN 202 ;Jyotish Chandra Sardar v.Hira Lal Sardar ILR 1971 (1) Calcutta 213 ;BhauRam v. Baij Nath Singh & Ors. AIR 1962 SC 1476 ;British India General Insurance Co. Ltd. v. Captain ItbarSingh, AIR 1959 SC 1331 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION:Civil Appeal No.1090 of2010

From the Judgment and Order dated 18.06.2008 of the High Courtat Calcutta in C.P. No.1289 of 2008C

Abhijeet Chatterjee, Subodh Kr. Pathak, Pawan Kumar Sharma,Dharmendra Kumar Sinha, Advs. for the Appellants.

S. K. Bhattacharya, L. K. Paonam, Niraj Bobby Paonam,Mrs.Tomthinnganbi Koijam, Advs. for the Respondent.

DThe Judgment of the Court was delivered by

SANJAY KISHAN KAUL, J.

1. The right of pre-emption holds its origination to the advent ofthe Mohammedan rule, based on customs which came to be accepted invarious courts largely located in the north of India. This law is stated toEbe largely absent in the south of India on account of the fact that it neverformed part of Hindu law in respect of property. However, this lawcame to be incorporated in various statutes, both, prior to theConstitution of India (for short ‘the Constitution’) coming into force, andeven post that.[1] The constitutional validity of such laws of pre-emptionFcame to be debated before the Constitution Bench of this Court, in BhauRam[2]. There are different views expressed by the members of theConstitution Bench of five Judges, and also dependent on the variousState legislations in this regard. Even though there were viewsexpressed that this right of pre-emption is opposed to the principles ofjustice, equity and good conscience, it was felt that the reasonablenessGof these statutes has to be appreciated in the context of society wherethere were certain privileged classes holding land and, thus, there mayhave been utility in allowing persons to prevent stranger fromacquiring property in an area which has been populated by particular

1 Bhau Ram v. Baij Nath Singh & Ors. AIR 1962 SC 1476H2 supra

fraternity or class of people. This aspect was sought to be balancedwith the constitutional scheme, prohibiting discrimination against citizenson the grounds of only religion, race, caste, sex, place of birth or any ofthem, under Article 15 of the Constitution, and the guarantees given toevery citizen to acquire, hold and dispose of property, subject only to thetest of reasonable restriction and the interest of general public.

2. With the passage of time, such laws of pre-emption, whichexisted in many States were abrogated, and it is only within limitedjurisdiction that it now prevails. One such enactment still in existence isthe West Bengal Land Reforms Act, 1955 (hereinafter referred to asthe ‘said Act’), an enactment with which we are concerned, and it is thisvery right of pre-emption, and the manner of its application under thesaid act, which was debated before us. The Preamble of the said Actsets forth the tone as under:

“An Act to reform the law relating to land tenure consequent onthe vesting of all estates and of certain rights therein [and also toconsolidate the law relating to land reforms] in the State”

3. The category of land holders are defined under Section 2 of thesaid Act, and the relevant two provisions are extracted hereinunder:

“2. Definitions.—In this Act, unless there is anything repugnantin the subject or context,—

(2) “bargadar” means person who under the system generallyknown as adhi, barga or bhag cultivates the land of anotherperson on condition of delivering share of the produce of suchland to that person; [and includes person who under the systemgenerally known as kisani [or by any other description] cultivatesthe land of another person on condition of receiving share of theproduce of such land from that person;]

[, but does not include person who is related to the owner of theland as—

[Explanation.—A bargadar shall continue to be bargadaruntil cultivation by him is lawfully terminated under this Act;]”

[2019] 15 S.C.R.

….….….….

“[(10) “raiyat” means person or an institution holding land forany purpose whatsoever;]”

4. The two relevant Sections for enforcement of the right of pre-Bemption are Sections 8 & 9 of the said Act, and we proceed to extractonly the relevant part of the same:

“8. Right of purchase by co-sharer or contiguous tenant.—(1) If portion or share of [plot of land of raiyat] is transferredto any person other than [co-sharer of raiyat in the plot ofland],[the bargadar in the plot of land] may, within three monthsof the date of such transfer, or] any [co-sharer of raiyat in theplot of land] may, within three months of the service of the noticegiven under sub-section (5) of section 5, or any raiyat possessingland [adjoining such plot of land] may, within four months of thedate of such transfer, apply to the [Munsif having territorialjurisdiction,] for transfer of the said portion or [share of the plot ofland] to him, subject to the limit mentioned in [section 14M,] ondeposit of the consideration money together with further sum often per cent of that amount:

xxxxxxxxxxxxxxxxxxxx”

“9. Revenue Officer to allow the application and apportionlands in certain cases.—(1) On the deposit mentioned in sub-section (1) of section 8 being made, the Munsif shall give noticeof the application to the transferee, and shall also cause noticeto be affixed on the land for the information of persons interested.On such notice being served, the transferee or any personinterested may appear within the time specified in the notice andprove the consideration money paid for the transfer and othersums, if any, properly paid by him in respect of the lands includingany sum paid for annulling encumbrances created prior to the dayof transfer, and rent or revenue, cesses or taxes for any period.The Munsif may after such enquiry as he considers necessarydirect the applicant to deposit such further sum, if any, within thetime specified by him and on such sum being deposited, he shallmake an order that the amount of the consideration money together

with such other sums as are proved to have been paid by thetransferee or the person interested plus ten per cent of theconsideration money be paid to the transferee or the personinterested out of the money in deposit, the remainder, if any, beingrefunded to the applicant. The Munsif shall then make furtherorder that the portion or [share of the plot of land] be transferredto the applicant and on such order being made, the portion or[share of the plot of land] shall vest in the applicant.”

Facts:

5. Now turning to the limited contours of the facts of the presentcase. The appellants before us purchased the suit land from the raiyatholder of land, being R.S. Plot No. 488, measuring 15 decimals, locatedin Mouza Kalikapur, Barasat, West Bengal, in pursuance of theregistered Sale Deed dated 27.5.2005. The stated consideration underthe Sale Deed is Rs.5,21,000/-. The respondent before us is raiyatholder of land contiguous to the suit land, sharing common boundaryline with the same. The respondent, thus, sought to exercise his right ofpre-emption under Section 8 of the said Act by filing Misc. Case No.19/2005 before the Civil Judge (Junior Division), 3[rd] Court, Baruipur, on theground of vicinage. The relevant aspect is that the respondent sought todispute the apparent consideration set out in the Sale Deed vide thisapplication by alleging that only sum of Rs. 2,50,000/- had been paid asconsideration for sale, and that an inflated sum had been set out in theSale Deed as result of collusion and conspiracy between thetransferor and the transferee, being the appellants herein. On the basisof this assertion, the application was accompanied with only deposit ofRs. 2,75,000/-, consisting of Rs.2,50,000/- as the principal considerationand Rs.25,000/- as the further levy of 10% on the principalconsideration, in accordance with Section 8 of the said Act. Therespondent sought leave to deposit any further sum, as may bedetermined by the court, at the time of trial.

6. The appellants objected to such an application and filedobjections inter alia disputing the allegation of inflated consideration. Inaddition, the appellants filed an application in that case, under Section 9of the said Act, explaining the manner in which the sum of Rs. 5,21,000/-had, in fact, been paid by the appellants. This application was objectedto by the respondent, by asserting that the balance amount could only bepaid once the appellants proved the consideration that had been paid

Aunder the Sale Deed and in case the court found so, directions could beissued for payment of further sum, if any, at that time, when theapplication under Section 8 of the said Act would be allowed. One ofthe grounds for claiming so was that if the payment was made at stageof filing the application under Section 8 of the said Act, then in theeventuality that the right of pre-emption was not enforced for anyBreason, there was no provision contained in Section 9 of the said Act forrefund of the amount deposited.

7. The trial court found in favour of the respondent by opining thatfirstly, the actual consideration amount had to be proved by thetransferee and secondly, on such inquiry being made, the balance couldCbe deposited on direction by the court. The court further opined thatthe sum was non-refundable since no specific provision was maderegarding repayment of the excess consideration, if any.

8. The appellants took up the matter in Misc. Appeal No.286/2007, before the 11[th] Additional District Judge, Alipore, andDsucceeded in that appeal in terms of the order dated 31.1.2008. Theconclusion of the appellate court was predicated on reasoning that itwas really not the jurisdiction of the court to decide the value of the suitproperty, and that Section 8(1) of the said Act clearly sets out that theperson enforcing the right of pre-emption is required to deposit the fullEamount as “shown in the sale deed” between the transferor and the“stranger purchaser”.9. It was now the turn of the respondent to assail this order bypreferring petition, being CO No.1289/2008, under Article 227 of theConstitution, before the High Court of Calcutta, under its civilFrevisionary jurisdiction. It may be added herein that after the firstappellate court passed the order, the trial court passed another orderdated 7.4.2008, directing the respondent to deposit the balance amountin terms of the order of the appellate Court, and this order was alsochallenged in another petition, being CO No.1291/2008. The High Courtallowed both these applications vide order dated 24.7.2008. InGconstruing the jurisdiction of the court in cases of pre-emption, as setout in Sections 8 & 9 of the said Act, the High Court opined that apre-emptor was entitled to raise an issue about the stated saleconsideration, and on such inquiry being complete, the Munsif could

always direct deposit of the balance amount. refund to the transfereewould, thus, only arise if it was found that the pre-emptor was liable topay an amount less than what had been deposited. In coming to thisconclusion, the decision of the Division Bench of the Calcutta High Court,in Sahid Ali v. S.K. Abdul Kasem[3] was relied upon. The High Courtalso took strength from similar Sections under the local Acts, i.e.,Section 26F of the Bengal Tenancy Act, 1885 and Section 24 of theWest Bengal Non-Agricultural Tenancy Act, 1949, which provided for‘penal’ consequences in cases of non-deposit of the entire amount, i.e.,rejection of the application for pre-emption. In the absence of such a‘penal’ consequence under Sections 8 & 9 of the said Act, it was opinedthat the application for pre-emption without full deposit could not berejected on that premise. The effect of this, thus, would be that anapplication could be entertained on ‘short deposit’ of the considerationamount and only on final adjudication by the Munsif would the occasionarise to deposit the balance amount.

Right of Pre-emption:

10. In order to appreciate the aforesaid provisions relating to theright of pre-emption, it would be appropriate to refer to an extremelylucid judgment of this Court by Justice K. Subbarao (as he then was),setting forth the contours of the right of pre-emption in Bishan Singh &Ors. v. Khazan Singh & Anr.,[4] in four Judge Bench judgement. TheBench proceeded to discuss the view of different Courts on this right ofpre-emption, as found in the following:

a. Plowden, J. in Dhani Nath v. Budhu[5].

b. Mahmood, J. in Gobind Dayal v. Inayatullah[6].

c. Mool Chand v. Ganga Jal[7].

11. In view of the aforesaid elucidation, it was opined that thepre-emptor has two rights: first, the inherent or primary right, i.e., rightfor the offer of thing about to be sold; and second, the secondary orremedial right to follow the thing sold. The secondary right ofpre-emption is simply right of substitution, in place of an original vendeeand the pre-emptor is bound to show not only that his right is as good asthat of that vendee, but that it is superior to that of the vendee. Such

3 (1994) 1 CHN 2024. AIR 1958 SC 8385 136 P.R. 18946(1885) ILR 7 All 775, 8097(1930) ILR 11 Lahore (F.B.) 258, 273

Asuperior right has to subsist at the time when the pre-emptor exerciseshis right. The position is thereafter summarized in the following terms:

“11. …..(1) The right of pre-emption is not right to the thing soldbut right to the offer of thing about to be sold. This right iscalled the primary or inherent right. (2) The pre-emptor has aBsecondary right or remedial right to follow the thing sold. (3) Itis right of substitution but not of re-purchase i. e., the pre-emptortakes the entire bargain and steps into the shoes of the originalvendee. (4) It is right to acquire the whole of the property soldand not share of the property sold. (5) Preference being theessence of the right, the plaintiff must have superior right to thatCof the vendee or the person substituted in his place. (6) The rightbeing very weak right, it can be defeated by all legitimatemethods, such as the vendee allowing the claimant of superioror equal right being substituted in his place.”

12. We would like to emphasise an important aspect which emergesDfrom the aforesaid that, apart from the elucidation of the legal position inthis behalf, right is “a very weak right.” That being the character of theright, any provision to enforce such right must, thus, be strictlyconstrued.

13. An interesting aspect which supports the aforesaid view,Ealbeit, in the context of the period of limitation with respect to theexercise of the pre-emption right, has been elucidated by this Court inGopal Sardar v. Karuna Sardar[8]. The discussion proceeds on thebasis of the earlier judicial pronouncements and conclusion was reachedthat Section 5 of the Limitation Act, 1963 cannot be pressed into serviceFin aid of belated application made under Section 8 of the said Act,seeking condonation of delay. The right of pre-emption under Section 8of the said Act was observed to be statutory right, besides being aweak one, and thus, had to be exercised strictly in terms of the saidSection with no place for consideration of equity.

G14. In comparatively recent decision, in Kedar Mishra v. Stateof Bihar[9], three Judge Bench had an occasion to deal with the BiharLand Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land)Act, 1961. We may notice that the right of pre-emption contained in

8 (2004) 4 SCC 252H9 (2016) 7 SCC 478

Section 16(3) has since been repealed. The relevant provision reads asunder:

“16 – Restriction on future acquisition by transfer etc.

….….….….

(3) (i) When any transfer of land is made after thecommencement of this Act to any person other than co-shareror raiyat of adjoining land, any co-sharer of the transferor orany raiyat holding land adjoining the land transferred, shall beentitled, within three months of the date of registration of thedocument of the transfer, to make an application before theCollector in the prescribed manner for the transfer of the land tohim on the terms and conditions contained in the said deed:

Provided that no such application shall be entertained by theCollector unless the purchase money together with sum equalto ten percent thereof is deposited in the prescribed manner withinthe said period.”

The object of the aforesaid sub-section was observed to be tosecure consolidation, by giving right of re-conveyance to aco-sharer or raiyat to an adjoining area, to facilitate the use ofland in more advantageous manner and to prevent fragmentation.It was categorically observed that “…In terms of Section 16(3)(i),no pre-emption application shall be entertained by the Collectorunless the purchase money together with sum equal to 10%thereof is deposited by the person claiming right of pre-emption inthe prescribed manner within the said period.”[10]

15. We are conscious of the fact that the proviso begins with anegative connotation of “no such application shall be entertained”, butyet the observations are relevant and germane.

Rival Contentions:

16. Learned counsel for the appellants sought to rely on theelucidation of the right of pre-emption, as set out in the Bishan Singh &Ors.[11] case, to contend that the right being defined as “very weakright”, the provisions of the Section should be read as they are. Section

10 Kedar Mishra v. State of Bihar (supra)

11 supra

A8(1) of the said Act prescribes that the right has to be exercised “ondeposit of the consideration money together with further sum of 10% ofthat amount:…” Thus, the trigger for the very right has to be the fullstated consideration plus (+) 10% of the consideration amount. Thequestion of recourse to Section 9, it was thus contended, would not arisetill the amount was so deposited, and within the given time. Secondly, itBwas contended that Section 9 of the said Act, as it reads, could not besaid to contemplate an inquiry into the amount of consideration set out inthe sale deed, but the inquiry was confined to any further amounts, ifany, claimed by the vendee. In substance, the plea was that the Sec-tions should be given their plain meaning.

17. On the other hand, learned counsel for the respondent con-tended that if unrealistic or arbitrary considerations are shown in thesale deed, they cannot bind the pre-emptor as that would amount toperpetuating fraud. His contention was that on deposit of what thepre-emptor believes to be the appropriate consideration, an applicationDcould be filed under Section 8(1) of the said Act, and thereafter aninquiry in that behalf would proceed under Section 9 of the said Act;otherwise, there would be no meaning to the power conferred on theMunsif to make an inquiry, as he considers necessary, and that portionwould be otiose. This is as against the plea of the appellants, that to

construe so, would amount to making the latter part of Section 8(1)Eotiose as discussed aforesaid, and also make nugatory, the first sentenceof Section 9(1), which begins with “on the deposit mentioned insub-section (1) of Section 8”

18. Learned counsel for the respondent sought to refer to thejudgments of the Calcutta High Court, in the Sahid Alicase[12], JyotishFChandra Sardar v. Hira Lal Sardar[13], as also to two other cases, inAmitava Shit v. Bablu Kundu[14] and Smt. Aparna Maity v. Smt. PurabiDas[15].

19. If one may say so, the latter two are really in the nature oforders, not elucidating any law, other than relying on the principles setGout in the Sahid Ali[16] case (a Division Bench view, as against the Single

12 (supra)13 ILR 1971 (1) Calcutta 21314 2014(1) CHN (Cal) 74415 C.O. No.3859/2015 AGM 2016 decided on 19th December, 2016H16.Supra

Judge Bench view in the latter two cases). The Sahid Ali[17] case, inturn, has relied upon the judgment in the Jyotish Chandra Sardar[18]case.

20. The common thread which goes through all these judgmentsis that an inquiry into the stated consideration was envisaged underSection 9 of the said Act, on conjoint reading of Sections 8 & 9 of thesaid Act. It may be noticed that the Jyotish Chandra Sardar[19]casesets out factual matrix where the mechanism for deposit of the amountwas not enforced and, thus, despite the endeavour of the pre-emptor todeposit the amount, such amount could not be deposited. An importantaspect examined, while distinguishing the views taken in respect of theBengal Tenancy Act, 1885 and of the West Bengal Non-AgriculturalTenancy Act, 1949, was that those enactments provided for “penalconsequences” and, thus, construction of those provisions would haveto be different, as compared to the said Act.

Discussion:

21. We have examined the rival contentions of the parties andconsidered it appropriate to set forth the history of the right ofpre-emption, as it may possibly have larger ramifications, especially whenwe are informed that there are other cases pending considerationbefore the Calcutta High Court.

22. The historical perspective of this right was set forth by theConstitution Bench of this Court, as far back as in 1962, in the BhauRam[20] case. The judgment in the Bishan Singh & Ors.[21] casepreceded the same, where different views, expressed in respect of thislaw of pre-emption, have been set out, and thereafter the position hasbeen summarized. There is no purpose in repeating the same, but, suf-fice to say that the remedial action in respect of the right of pre-emptionis secondary right, and that too in the context of the “right being veryweak right.” It is in this context that it was observed that such rightcan be defeated by all legitimate methods, such as vendee allowing theclaimant of superior or equal right to be substituted in its place. This isnot right where equitable considerations would gain ground. In fact,the effect of the right to pre-emption is that private contract inter se

17 supra

18 supra

19 supra

20 supra

21 supra

Athe parties and that too, in respect of land, is sought to be interfered with,and substituted by purchaser who fortuitously has land in the vicinity tothe land being sold. It is not case of co-sharer, which would rest ona different ground.

23. The second aspect of importance is that given the aforesaidBposition, even the time period for making the deposit, under Section 8(1)of the said Act, has been held to be sacrosanct, in view of the judgmentof this Court in the Gopal Sardar[22] case. The very provision of Section8(1) of the said Act came up for consideration and, as held in that case,if the time period itself cannot be extended and if Section 5 of the Limi-tation Act would not apply, while interpreting Section 8 of the said Act,Cthen the requirement of deposit of the amount along with the application,within the time stipulated is sacrosanct. The amount to be deposited isnot any amount, as that would give wide discretion to the pre-emptor,and any pre-emptor not able to pay the full amount, would always beable to say that, in his belief, the consideration was much lesser thanDwhat had been set out. If we read the judgment in the Gopal Sardar[23]case, in its true enunciation and spirit, there is sanctity attached to both,the amount and the time frame. There cannot be sanctity to the timeframe, incapable of extension even by the Limitation Act, and yet, therebe no sanctity to the amount.

E24. In the context of the Bihar Land Reforms (Fixation of CeilingArea and Acquisition of Surplus Land) Act, 1961, the recent view of thisCourt, in the context of the relevant provision (now repealed[24]), itselfputs pre-condition for the exercise of the right of pre-emption, byrequiring the deposit of the full stated purchase money and 10% of thepurchase amount. In our view, it makes no difference that the proviso inFSection 16(3) of that Act states that “…no such application shall beentertained…”, in the context of filing of applications, without thedeposit of the full amount. We may say so because, if we turn toSection 8(1) of the said Act, the right of pre-emption is activated “ondeposit of the consideration money together with the further sum ofG10% of that amount.” Thus, unless such deposit is made, the right ofa pre-emptor is not even triggered off. The provisions of Section 8 areexplicit and clear in their terms.

23 supra

24Vide Section 2 of The Bihar Land Reforms (Fixation of Ceiling Area andAcquisition of Surplus Land) (Amendment) Act, 2019H

25. Now turning to Section 9 of the said Act, from which,apparently, some judgments of the Calcutta High Court have sought toderive conclusion that an inquiry into the stated consideration isenvisaged. However, the commencement of sub-section (1) of Section9 is with “on the deposit mentioned in sub-section (1) of section 8 beingmade…” Thus, for anything further to happen under Section 9 of thesaid Act, the deposit as envisaged under Section 8 of the said Act has tobe made. It is only then that the remaining portion of Section 9 of thesaid Act would come into play.

26. The question now is as to what would be the nature of inquirywhich has been envisaged to be carried out by the Munsif. If Section 9,as it reads, is perused, then first, the amount as mentioned in the saletransaction is to be deposited, as per sub-section (1) of Section 8 of thesaid Act. Once that amount is deposited, the next stage is for the Munsifto give notice of the application to the transferee. The transferee there-after, when enters appearance within the time specified, can prove theconsideration money paid for the transfer “and other sums.” Such othersums, if any, are as “properly paid by him in respect of the land includingany sum paid for annulling encumbrances created prior to the day oftransfer and rent or revenue, cesses or taxes for any period.” Theinquiry, thus envisaged, is in respect of the amount sought to be claimedover and above the stated sale consideration in the document of salebecause, in that eventuality further sums would have to be called for,from the pre-emptor. In that context, the additional amount would haveto be deposited. Even in the event that pre-emptor raises doubtsregarding the consideration amount, enquiry into the said aspect can bedone only upon payment of the full amount, along with the application. Inthis aspect, the phrase “the remainder, if any, being refunded to theapplicant” would include to mean the repayment of the initial depositmade along with the application, if considered to be excess. To give anyother connotation to these Sections would make both, the latter part ofSection 8 of the said Act and the inception part of Section 9 of the saidAct, otiose. We do not think such an interpretation can be countenanced.

27. In our view, when the inquiry is being made by the Munsif,whether in respect of the stated consideration, or in respect of anyadditional amounts which may be payable, the pre-requisite of deposit ofthe amount of the stated consideration under Section 8(1) of the said

AAct would be required to be fulfilled. The phraseology “the remainder,if any, being refunded to the applicant” would have to be understood inthat context. The word “remainder” is in reference to any amount which,on inquiry about the stated consideration, may be found to have beendeposited in excess, but it cannot be left at the own whim of theapplicant to deposit any amount, which is deemed proper, but the fullBamount has to be deposited, and if found in excess on inquiry, berefunded to the applicant.

28. We are, thus, firmly of the view that the pre-requisite to evenendeavour to exercise this weak right is the deposit of the amount ofsale consideration and the 10% levy on that consideration, as otherwise,CSection 8(1) of the said Act will not be triggered off, apart from makingeven the beginning of Section 9(1) of the said Act otiose.

29. We are not inclined to construe the aforesaid provisionsotherwise only on the ground that there are no so called “penalprovisions” included. The provisions of Sections 8 & 9 of the said ActDmust be read as they are. In fact, it is settled rule of construction thatlegislative provisions should be read in their plain grammaticalconnotation, and only in the case of conflicts between differentprovisions would an endeavour have to be made to read them in amanner that they co-exist and no part of the rule is made superfluous.[25]EThe interpretation, as we have adopted, would show that reallyspeaking, no part of either Section 8, or Section 9 of the said Act is madeotiose. Even if an inquiry takes place in the aspect of statedconsideration, on plea of some fraud or likewise, and if such findingis reached, the amount can always be directed to be refunded, ifdeposited in excess. However, it cannot be said that discretion can beFleft to the pre-emptor to deposit whatever amount, in his opinion, is theappropriate consideration, in order to exercise right of pre-emption.The full amount has to be deposited.

30. We may also note that, as matter of fact, the pre-emptor inthe present case, i.e., the respondent has not filed any material toGsubstantiate even the plea on the basis of which, even if an inquiry washeld, could conclusion be reached that the stated consideration is notthe market value of the land.

25 British India General Insurance Co. Ltd. v. Captain Itbar Singh, AIR 1959 SC 1331

31. We also believe that to give such discretion to the pre-emp-tor, without deposit of the full consideration, would give rise to specula-tive litigation, where the pre-emptor, by depositing smaller amounts, candrag on the issue of the vendee exercising rights in pursuance of thevalid sale deed executed. In the present case, there is sale deedexecuted and registered, setting out the consideration.

32. We are of the view that the impugned order and the viewadopted would make weak right into ‘speculative strong right’, some-thing which has neither historically, nor in judicial interpretation beenenvisaged.

33. The last question which arises is whether the respondent cannow be granted time to deposit the balance amount. When the directionwas so passed, in pursuance of the order of the appellate court, therespondent still assailed the same. The requirement of exercising theright within the stipulated time, in respect of the very provision has beenheld to be sacrosanct, i.e., that there can be no extension of time grantedeven by recourse to Section 5 of the Limitation Act.[26]

34. As we have discussed above, once the time period to exercisea right is sacrosanct, then the deposit of the full amount within the timeis also sacrosanct. The two go hand-in-hand. It is not case where anapplication has been filed within time and the amount is deficient, but thebalance amount has been deposited within the time meant for the exer-cise of the right. We are saying so as such an eventuality may arise, butin that case, the right under the application would be triggered off ondeposit of the amount which, in turn, would be within the time stipulatedfor triggering the right. That not having happened, we are of the viewthat there cannot be any extension of time granted to the respondentnow, to exercise such right. This is, of course, apart from the fact thatthis speculative exercise on behalf of the respondent has continued forthe last fourteen years, by deposit of 50% of the amount.35. We may add here that it may not be appropriate to envisage asituation where person not succeeding in the right of pre-emption isdeprived of the amount deposited. The vendee cannot appropriate thisamount. The State should not be permitted to appropriate this amount.Then, the only sequitur would be that the amount should be refundedback to the pre-emptor.

26Gopal Sardar v. Karuna Sardar (supra)

A36. The aforesaid being the position, the respondent is entitled tothe refund of the amount deposited by him, together with interest, if any,earned on the same, in case it has been kept in an interest bearingdeposit.

37. The appeal is accordingly allowed in the aforesaid terms,Bleaving the parties to bear their own costs.

38. We hope that our view should put the controversy in respectof this “weak right” of pre-emption to rest.

Nidhi Jain

Appeal allowed.