Sk. Abdul Odud Ali vs Emanulla Khan & Ors.

Sabyasachi Bhattacharyya, J.:-

This Larger Bench has been constituted to answer a reference on the following question:

Learned senior counsel, arguing for the proposition that an application for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as “the 1955 Act”) can be rejected at the outset as not maintainable if it is not accompanied by a deposit of an amount less than the consideration shown in the sale deed sought to be pre-empted, along with statutory interest of 10%, contends that, subsequent to the judgment dated July 16, 2021, passed in CO No. 785 of 2021 [Sk. Abdul Odud Ali v. Emanulla Khan and Others], which gave rise to the present reference, the Hon’ble Supreme Court, in a subsequent judgment dated May 5, 2022, in Abdul Matin Mallick v. Subrata Bhattacharjee (Banerjee) and Others, reported at (2022) 7 SCC 147, has settled the issue by holding that the non-deposit of such amount renders the application for pre-emption not maintainable and liable to be rejected.

Learned senior counsel submits that in Abdul Matin Mallick (supra)^{11.Abdul Matin Mallick v. Subrata Bhattacharjee (Banerjee) and Others, reported at (2022) 7 SCC 147}, the Hon’ble Supreme Court relied on the proposition laid down in Barasat Eye Hospital and Others v. Kaustabh Mondal, reported at (2019) 19 SCC 767, which was also discussed in Sk. Abdul Odud Ali (supra)^{22.CO No. 785 of 2021 [Sk. Abdul Odud Ali v. Emanulla Khan and Others]}.

Learned senior counsel places reliance on the language of Section 8(1) and Section 9(1) of the 1955 Act and argues that, on a literal interpretation of the said provisions, it would be evident that the deposit contemplated therein has to be made at the threshold, simultaneously with the filing of the pre-emption application. As reiterated in Abdul Matin Mallick (supra)¹, a dispute as to the actual sale consideration which passed between the pre-emptee and the vendor would not justify subsequent deposit of the statutory amount. In case of such a dispute, the remedy would lie in an enquiry being undertaken subsequent to such deposit. If it is found on such enquiry that excess amount has been deposited and the actual consideration was less, the Court can always direct refund of such excess amount to the pre-emptor.

Learned senior counsel argues that in view of the Hon’ble Supreme Court having explained and relied on Barasat Eye Hospital (supra)^{33.Barasat Eye Hospital and Others v. Kaustabh Mondal, reported at (2019) 19 SCC 767} in Abdul Matin Mallick (supra)¹, the issue which comes up in the present reference is no longer res integra.

Learned counsel appearing for the contrary proposition, that a pre-emption application cannot be rejected at the outset for short deposit of consideration amount along with 10% interest, places reliance on the following judgments of this Court, to argue that it has been the consistent view of this Court that mere short deposit does not vitiate the entire pre-emption application and such deposit may even be subsequently made:

It is argued that in Barasat Eye Hospital (supra)^{44.Barasat Eye Hospital and Others v. Kaustabh Mondal, reported at (2019) 19 SCC 767}, the Hon’ble Supreme Court relied on the provisions of Section 16 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (for short, “the Bihar Act”), which was quoted in Paragraph No. 14 of the said judgment. It is contended that Section 16 of the Bihar Act is completely different from Section 8 of the 1955 Act in the following respects:

That apart, the Hon’ble Supreme Court, in Barasat Eye Hospital (supra)^{55.Barasat Eye Hospital and Others v. Kaustabh Mondal, reported at (2019) 19 SCC 767}, relied on Bishan Singh v. Khazan Singh, reported at AIR 1958 SC 838, where a general exposition of the right of pre-emption was discussed and it was held that pre-emption is a weak right. However, under the regime of the 1955 Act, pre-emption is a specific statutory right, which is not merely customary or a secondary right in common law or equity.

Thus, the context of the Barasat Eye Hospital judgment, it is submitted, is not applicable to a pre-emption application under the 1955 Act.

It is further submitted that the consistent view of this Court to the contrary was not considered either in Barasat Eye Hospital (supra)^{66.Abdul Matin Mallick v. Subrata Bhattacharjee (Banerjee) and Others, reported at (2022) 7 SCC} or Abdul Matin Mallick (supra)⁶. Hence, the said judgments cannot be considered to be binding precedents in that regard.

Upon hearing the rival contentions of learned counsel, it transpires that the argument for the proposition that a pre-emption application under Section 8 of the 1955 Act is not maintainable and should be rejected at the outset if deposit of the entire consideration amount, as reflected in the sale deed, along with 10% thereon is not deposited, primarily relies on the perspective of literal rule of interpretation of Sections 8 and 9 of the 1955 Act.

The said provisions are quoted hereinbelow for the sake of convenience:

Before answering the instant reference, certain aspects of the matter are to be considered.

In Barasat Eye Hospital (supra)^{77.Barasat Eye Hospital and Others v. Kaustabh Mondal, reported at (2019) 19 SCC 767}, the Hon’ble Supreme Court placed reliance on Bishan Singh (supra)^{88.Bishan Singh v. Khazan Singh, reported at AIR 1958 SC 838} to hold that pre-emption is a very weak right. In such context, the Hon’ble Supreme Court proceeded on the premise that such being the character of the right, any provision to enforce such a right must be strictly construed. Hence, the entire perspective of the judgment pivots around such focal point. However, with respect, the “weak right” doctrine, which was propounded in the context of the general right of pre-emption in common law in Bishan Singh (supra)^{99.Sadhan Chandra Samanta & Ors. v. jaladhi Bala Dasi & Anr., reported at 1986 (1) CLJ 170}, is not directly applicable to the 1955 Act. Pre-emption under the said Act is a statutory, crystallised right as opposed to a secondary, customary right arising out of common law.

Secondly, in Barasat Eye Hospital (supra)⁷, the Hon’ble Supreme Court heavily relied on Section 16 of the Bihar Act. In Kedar Mishra v. State of Bihar, reported at (2016) 7 SCC 478, the Hon’ble Supreme Court had held that the object of sub-section (3) of Section 16 of the Bihar Act was to secure consolidation by giving the right of re-conveyance to a co-sharer or a raiyat of an adjoining area so that the land in question can be used in the most advantageous manner and also to prevent fragmentation of the land. In such context, it was found that no pre-emption application shall be entertained by the Collector unless the purchase money, together with 10 % thereof, is deposited by the pre-emptor. In Paragraph no. 16 of Barasat Eye Hospital (supra)⁸, the Hon’ble Supreme Court recorded that it was conscious of the fact that the proviso to Section 16(3)(i) of the Bihar Act begins with a negative connotation, yet held that the observations in the said decision are relevant and germane while considering pre-emption under the 1955 Act.

It is relevant to note that, as opposed to the proviso to Section 16(3)(i) of the Bihar Act, which specifically and in negative language debars a pre-emption application unless the purchase money plus 10% is deposited, there is no such specific bar under Sections 8 and 9 of the 1955 Act. Moreover, in view of the use of the expression “on the terms and conditions contained in the said deed” qualifying a pre-emption application under the Bihar Act, the deposit under the said Act has to be read in the context of the consideration amount enumerated in the purchase deed itself. Conspicuously, no such expression finds place in the corresponding provisions of the 1955 Act, thus apparently leaving the term “consideration” in Section 8(1) of the said Act fluid.

Moreover, the Bihar Act does not contain any provision for enquiry into the actual consideration money, as opposed to the 1955 Act, under Section 9 of which, upon the consideration amount being deposited, the Court has to undertake an enquiry in that regard and it may ultimately be found that the consideration amount reflected in the deed, is not the correct one, thereby diluting the expression “consideration money” as stipulated in Section 8(1) of the 1955 Act, itself, which is to be mandatorily deposited, together with 10% thereon, with the pre-emption application.

Another aspect which is required to be noted is that the consistent view of Division Benches and learned Single Judges of this Court has all along been that a pre-emption application is maintainable even if the statutory deposit is not made simultaneously with the application and that such amount can be deposited later.

In Sadhan Chandra Samanta (supra)⁹, a Division Bench of this Court considered the evolution of law in that regard in West Bengal. In the predecessor statute containing a pre-emption provision, that is, the Bengal Tenancy Act, Section 26-F(2) specifically provided (somewhat like the Bihar Act) that a pre-emption application was to be dismissed unless the deposit was made, which was conspicuously absent in Section 8 of the 1955 Act. the co-ordinate Bench noted such marked distinction and also the case of Jatish Chandra Sardar v. Hiralal Sardar, reported at ILR 1971(1) Calcutta 213, where it was indicated that the deposit of consideration and compensation thereon need not be necessarily made within the statutory period of four months or three years of limitation for filing a pre-emption application.

Such view was reiterated by another co-ordinate Bench of this Court in Sahid Ali (supra)^{1010.Sahid Ali v. Abdul Kasem, reported at (1994) 1 CHN 202} and followed by learned Single Judges of this Court in Serina Begum (supra)^{1111.Serina Begum v. Sk. Alauddin, Being Deceased, His Heirs Aseka Begum, reported at (2019) 3 CHN 449} and Susanta Jadav (supra)^{1212.Susanta Jadav v. Rupchand Dhar, reported at (2013) 2 CHN 453}.

However, as strong as the precedential value of the body of judgments of this Court holding the field may be in favour of the proposition that a pre-emption application cannot be rejected outright at the threshold for non-deposit of the statutory amount, such position underwent a sea-change with the pronunciation on the law in that regard in Barasat Eye Hospital (supra)^{1313.Barasat Eye Hospital and Others v. Kaustabh Mondal, reported at (2019) 19 SCC 767}. In the said judgment, the Hon’ble Supreme Court lent a literal meaning to the provisions of Sections 8 and 9 of the 1955 Act and observed that the pre-requisite to even endeavour to exercise the weak right of pre-emption is the deposit of the amount of the sale consideration and 10% levy on that consideration; otherwise Section 8(1) of the 1955 Act will not be triggered off, apart from making even the beginning of Section 9(1) of the said Act otiose. It was further held that the provisions of Sections 8 and 9 of the said Act must be read as they are. The literal rule of construction was, thus, reiterated in that regard.

It is not for this Court to revisit the decision of the Hon’ble Supreme Court in Barasat Eye Hospital (supra)^{1414.Barasat Eye Hospital and Others v. Kaustabh Mondal, reported at (2019) 19 SCC 767}.

Secondly, the proposition laid down in Barasat Eye Hospital (supra)¹⁴, was specifically in the context of the 1955 Act. The reference to the Bihar Act and to earlier judgments formed only a part of the ratio of the said report. Hence, the law laid down in the Barasat Eye Hospital matter was on pre-emptions under the 1955 Act itself and, thus, is squarely applicable in the present context.

The said proposition, as laid down in Barasat Eye Hospital (supra)¹⁴, was further cemented in Abdul Matin Mallick (supra)^{1515.Abdul Matin Mallick v. Subrata Bhattacharjee (Banerjee) and Others, reported at (2022) 7 SCC 147}, which inter alia considered and relied on the exposition of law in Barasat Eye Hospital (supra)¹⁴.

Upon detailed discussion on such proposition, the Hon’ble Supreme Court held in Abdul Matin Mallick (supra)¹⁵ that deposit of the entire sale consideration, with an additional amount of 10% thereof, along with the pre-emption application is a statutory and mandatory requirement and a pre-condition before any further enquiry as contemplated under Section 9 of the said Act is to be undertaken.

The Hon’ble Supreme Court, in Abdul Matin Mallick (supra)^{1616.Abdul Matin Mallick v. Subrata Bhattacharjee (Banerjee) and Others, reported at (2022) 7 SCC 147}, also considered the submission on behalf of the pre-emptor that they bona fide believed that the sale consideration mentioned in the sale deed in favour of the vendee, who was an outsider to the family, was higher than the actual sale consideration and therefore, they did not deposit the entire statutory deposit along with the pre-emption application. In such specific context, the Hon’ble Supreme Court held that the aforesaid cannot be a ground not to comply with the condition of deposit as required under Section 8 of the 1955 Act and that, at the most, the dispute can be the subject-matter of an enquiry provided under Section 9 of the Act, which would only be after the condition of deposit of entire sale consideration with additional 10% as provided under Section 8 of the Act has been complied with.

Thus, it was finally held that along with the pre-emption application, the pre-emptors have to deposit the statutory amount and only thereafter further enquiry can be conducted as per Section 9 of the 1955 Act and therefore, until and unless the same is complied with, the pre-emption application would not be maintainable.

In this context, it would profitable to refer to Paragraph Nos. 8 and 9 of Abdul Matin Mallick (supra)¹⁶:

In view of the law laid down in Abdul Matin Mallick (supra)^{1717.Abdul Matin Mallick v. Subrata Bhattacharjee (Banerjee) and Others, reported at (2022) 7 SCC 147}, following Barasat Eye Hospital (supra)^{1818.Barasat Eye Hospital and Others v. Kaustabh Mondal, reported at (2019) 19 SCC 767}, which are binding precedents on the High Courts under Article 141 of the Constitution of India, judicial decorum and propriety precludes this Court from revisiting the said proposition in any manner whatsoever and/or to consider whether the earlier settled position to the contrary was overlooked. As such, in view of the proposition laid down in Abdul Matin Mallick (supra)¹⁷, the question which has fallen for reference is no longer res integra and has to be answered in the positive.

We must also note that, as held in abovementioned judgment, the proposition that a pre-emption application sans the statutory deposit is not maintainable at all is not qualified or determined by the ground of the pre-emption. Thus, whether a pre-emption application under Section 8 of the 1955 Act is filed on the ground of co-sharership, contiguous ownership or bargadarship, the proposition is universally applicable across the board. In fact, in Abdul Matin Mallick (supra)¹⁶, it was a pre-emption application by co-sharers only, in respect of which the proposition was laid down therein.

In view of the above, we answer the reference in the affirmative, holding as follows:

C.O. No. 785 of 2021 be now placed before the regular Bench having determination to take up such matters for adjudication on merits in the light of the aforesaid answer to the reference.

I agree.

I agree.