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2006 DIGILAW 121 (CAL)

GOUTAM DAS v. NIRBHOY CHANDRA CHOWDHURY

2006-02-28

PRATAP KUMAR RAY

body2006
Pratap Kumar Ray ( 1 ) HEARD the learned Advocates appearing for the parties. ( 2 ) THIS application under Article 227 of the Constitution of India was filed on assailing the order dated 16th September, 2005 passed by learned Civil judge (Junior Division), Jalpaiguri in Misc. (Pre-emption) Case No. 34 of 2004 whereby and whereunder application praying injunction to restrain the respondents from executing any sale deed was refused. This pre-emption application was filed by the petitioner admittedly at the pre-matured stage, namely, when the registration of the document was not at all completed in terms of Section 61 of the Registration Act, which provides that registration would be completed on fulfillment of all the formalities in terms of the said Act. Reliance may be placed to the judgment passed in the case Ram Saran Lall and ors. v. Mst. Domini Kuer and Ors. , reported in AIR 1961 SC 1747 and Hiralal aggarwal v. Rampadarath Singh, reported in AIR 1969 SC 244 , ( 3 ) RIGHT of pre-emption is a statutory right granted under Section 8 of the West Bengal Land Reforms Act, which, however, provides a statutory condition that right of pre-emption in respect of any holding now after the amendment it has been a plot would accrue by any co-sharer or by the owner of the contiguous land. Section 8 of the Land Reforms Act reads to this effect:"8. Section 8 of the Land Reforms Act reads to this effect:"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 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 or the plot of land] transferred to him, and in such a case, the deposit made by others shall be refunded to them :] [provided further that where the bargadar does not apply for such transfer and] a [co-sharer or a raiyat in the plot of land] and a raiyat possessing land [adjoining such 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 gift, or hiba-bil-ewaz, or (c) a mortgage mentioned in Section 7, (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 IIB. (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 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 provision of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972. " ( 4 ) IT is true that under the said statutory provision, cause of action to maintain an application for pre-emption must satisfy the transfer of the concerned land, which clearly means that the transfer must be by effecting a sale deed following the Transfer of Property Act read with the Registration Act, 1908. Once, the sale is not complete in terms of Section 61 of the Registration Act, obviously it could be said that there was no transfer in the eye of law in terms of Section 8 of the West Bengal Land Reforms Act, 1955. But the issue was decided by a judicial decision that even for inchoate right a suit would be maintainable but no relief could be granted till maturity of such right. This point has been adjudicated upon by the Division Bench of Calcutta High Court in the case Krishna Chandra Pramanik and Ors. v. Hari Sadan Sahana and Anr. But the issue was decided by a judicial decision that even for inchoate right a suit would be maintainable but no relief could be granted till maturity of such right. This point has been adjudicated upon by the Division Bench of Calcutta High Court in the case Krishna Chandra Pramanik and Ors. v. Hari Sadan Sahana and Anr. , reported in AIR 1981 Calcutta 435 by discussing different judgments to this effect that a suit is maintainable even if registration was not completed under Section 61 of the said Registration Act and for such non-registration an application for pre-emption should not be thrown out directing the litigant to file a fresh application after completion of the registration but the Court has made a rider that no relief could be granted, namely, the decree in terms of the prayer, until and unless, such inchoate right as accrued on execution of the deed matures to a transfer by full fledged registration under Section 61 of the Registration Act. ( 5 ) IN the instant case the pre-emption application has been filed on the basis of the execution of a sale deed, transferring the land in favour of the pre-emptee but as yet the registration has not been completed following all formalities of Section 61 of the Registration Act. In that view of the matter, the issue as thrashed herein to be looked into. ( 6 ) THE issue involved herein about the right to pray for injunction and also refusal to grant such relief. By the impugned order learned Court below rejected the injunction application on the ground that in the event any such order is passed, the transferer of the property practically would be restrained from completing the registration of the concerned land in favour of the pre-emptee, which is the subject matter of present litigation. The power to grant injunction is a discretionary power. Learned Advocate for the petitioner, however, have urged that as the pre-emptee concerned have already started construction in the plot in question being a promoter developer, the property will be encumbered by such construction and the pre-emptee may claim development cost, which would practically frustrate the present plaintiff of pre-emption application to have the proper relief. This argument has no substance at all. This argument has no substance at all. In the eye of law, a pre-emptee cannot pray for any development or improvement costs in terms of the Section 8 of West Bengal Land Reforms Act. This issue also has been decided by this Court in the judgment passed in the case Gangadhar Bhandari v. Lalmohan Mukherjee, reported in (1978)1 Cat LJ 451 holding that pre-emptee is not entitled to any expenditure of improvements on the land under pre-emption made or effected by him. ( 7 ) HAVING regard to such state of affairs, a pre-emptor whose right as yet has not matured, as the registration is not complete, accordingly, got no right to pray for injunction as it is a basic law to grant an injunction that the concerned party must have an existing right and there is a breach on such right. At the present moment the petitioner has no right to have any relief under the pre-emption application, unless it is matured by registration of the concerned land by the vendor of pre-emptee. In that view of the matter, as the petitioner has no right at the present moment, the Court is not finding any perversity in the impugned order. Hence, application under Article 227 of the Constitution of india stand dismissed.