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Calcutta High Court · body

2015 DIGILAW 219 (CAL)

Pradipta Padha v. Laxmi Kanta Maity

2015-03-09

HARISH TANDON

body2015
JUDGMENT : Harish Tandon, J. 1. The question, therefore, in this revisional application is whether the pre-emptor is mandatorily required to deposit the consideration money together with a further sum of 10% of that amount at the time of making an application under Section 8 of the West Bengal Land Reforms Act, 1955. Before proceeding to deal with the above question, it would be profitable to quote the relevant provisions from the said Act which are reproduced as below: "Sec 8. Before proceeding to deal with the above question, it would be profitable to quote the relevant provisions from the said Act which are reproduced as below: "Sec 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 Munsiff 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 of 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 of a raiyat in a 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, or (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." 9. Revenue Officer to allow the application and apportion lands in certain cases.-(1) On the deposit mentioned in sub-section (1) of section 8 being made, the Munsif shall give notice of the application to the transferee, and shall also cause a notice to be affixed on the land for the information of persons interested. On such notice being served, the transferee or any person interested may appear within the time specified in the notice and prove the consideration money paid for the transfer and other sums, if any, properly paid by him in respect of the lands including any sum paid for annulling encumbrances created prior to the date of transfer, and rent or revenue, cesses or taxes for any period. The Munsif may after such enquiry as he considers necessary direct the applicant to deposit such further sum, if any, within the time specified by him and on such sum being deposited, he shall made an order that the amount of the consideration money together with such other sums as are proved to have been paid by the transferee or the person interested plus ten per cent of the consideration money be paid to the transferee or the person interested out of the money in deposit, the remainder, if any, being refunded to the applicant. The Munsif shall then make a further order that the portion or share of the plot of land be transferred to the applicant and on such order being made, the portion or share of the plot of land shall vest in the applicant. (2) When any person acquires the right, title and interest of the transferee in such plot of land by succession or otherwise, the right, title and interest acquired by him shall be subject to the right conferred by sub-section (1) of section 8 on a co-sharer of a raiyat in a plot of land or a raiyat possession land adjoining the plot of land or bargadar. (3) In making an order under sub-section (1) in favour of more than one co-sharer of a raiyat in a plot of land or raiyat holding adjoining land or bargadar the Munsif may apportion the portion or share of the plot of land in such manner and on such terms as he deems equitable. (4) Where any portion or share of a plot of land is transferred to the applicant under sub-section (1), such applicant shall be liable to pay all arrears of revenue in respect of such portion or share of the plot of land that may be outstanding on the date of the order. (5) The Munsif shall send a copy of his order as modified on appeal, if any, under sub-section (6) to the prescribed authority for correction of the record-of-rights. (6) Any person aggrieved by an order of the Munsif under this section may appeal to the District Judge having jurisdiction over the area in which the land is situated, within thirty days, from the date of such order and the District Judge shall send a copy of his order to the Munsif. (6) Any person aggrieved by an order of the Munsif under this section may appeal to the District Judge having jurisdiction over the area in which the land is situated, within thirty days, from the date of such order and the District Judge shall send a copy of his order to the Munsif. The fees to be paid by the parties and the procedure to be followed by the District Judge shall be such as may be prescribed. (7) Every appeal pending before an Additional District Magistrate at the commencement of section 8 of the West Bengal Land Reforms (Amendment) Act, 1972, shall, on such commencement, stand transferred to, and be disposed of by, the District Judge having jurisdiction in relation to the area in which the land is situated and on such transfer, every such appeal shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provisions of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972." 2. The meaningful reading of the aforesaid provisions makes abundantly clear that the right to preempt is conferred upon the bargadar in the plot of land, any co-sharer of the raiyat in the plot of land and any raiyat possessing land adjoining to such plot of land. Different periods of limitation are also provided in the said section for different classes of the person on whom right to preempt is given. If both the provisions are harmoniously construed, it emerges that any of the person included therein may apply to the Munsif having territorial jurisdiction for transfer of the portion or share of the plot of land of a raiyat, if transferred to any person other than the co-sharer of the raiyat in a plot of land for transfer of the said portion or the share of the plot of land to him subject to the limit mentioned in Section 14M on deposit of the consideration money together with further sum of 10% of that amount. According to the petitioner, once the deposit of consideration money together with further sum of 10% of that amount is the requirement under Section 8 (1) of the said Act, it is to be construed that such deposit is mandatory, the moment an application is filed before the Munsif having territorial jurisdiction seeking preemption. According to the petitioner, once the deposit of consideration money together with further sum of 10% of that amount is the requirement under Section 8 (1) of the said Act, it is to be construed that such deposit is mandatory, the moment an application is filed before the Munsif having territorial jurisdiction seeking preemption. In other words, the application under Section 8 (1) of the said Act must be accompanied by the deposit of the consideration money and the further sum of 10% of that amount as the failure to comply the said provision would attract dismissal thereof. 3. According to Mr. Banerjee, the expression "apply" for transfer on deposit of consideration money is imperative. 4. The identical question arose before the Division Bench of this Court in case of Jyotish Chandra Sardar v. Hira Lal Sardar reported in ILR (1971) 1 Cal 213 wherein the Division Bench noticed the different languages employed under Section 26F of Bengal Tenancy Act and Section 8 of the West Bengal Land Reforms Act and held that in absence of any stringent or penal consequences for non-deposit of consideration money together with the compensation amount does not entail the dismissal of an application seeking preemption. Under Section 25F of the Bengal Tenancy Act, the co-sharer tenant was entitled to apply for preemption. Sub-Section 2 thereof makes it obligatory to deposit the consideration money and the compensation at the time of application and any default would attract the dismissal thereof. The penal consequences are absent in Section 8 (1) of the West Bengal Land Reforms Act. While dealing with the provisions contained in Section 8 (1) of the West Bengal Land Reforms Act, the Division Bench held that the verb "apply" is relatable to a period of limitation provided therein for each category of the pre-emptor and not to a deposit of the consideration money together with the compensation amount in these words: "The words 'within four months' which fix the time limit have relation to the verb 'apply'. The application has to be made within four months. This much is quite clear. But, the question is whether the phrase 'on deposit of the consideration money etc.' also modifies the verb 'apply'. To us the grammatical structure of the sentence seems to indicate that phrase goes with the word 'transfer' and not with the word 'apply'. The application has to be made within four months. This much is quite clear. But, the question is whether the phrase 'on deposit of the consideration money etc.' also modifies the verb 'apply'. To us the grammatical structure of the sentence seems to indicate that phrase goes with the word 'transfer' and not with the word 'apply'. It indicates the condition upon which the transfer in favour of the pre-emptor is to be made rather than the manner in which the application is to be made. What may be applied for is 'transfer of the share or portion of the holding to him.' On deposit of the consideration money. So it is quite obvious that the deposit need not be made within four months. There being no statutory time limit for making the deposit the question whether the time can be extended or not does not arise at all." 5. In case of Sadhan Chandra Samanta v. Jaladhi Bala Dasi reported in 1986 (1) CLJ 170 , another Division Bench of this Court accepted and applied the ratio laid down in Jyotish Chandra (supra) and held that it is not necessary that the application for preemption would fail for non-deposit of the consideration money and the compensation within the statutory period provided under Section 8 of the West Bengal Land Reforms Act in these words: "In view of the Division Bench decision in the case of Jatish Chandra Sardar v. Hiralal Sardar, ILR 1971 (1) Calcutta 213, we reject the other submission on behalf of the petitioners that the joint application under Section 8 of the West Bengal Land Reforms Act filed by jaladhibal Dasi and Kinkar Khamrui ought to have been rejected in limini on the ground that each one of them did not make separate deposits of the consideration money together with a further sum of 10% of that amount. No doubt, said Jaladhibala Dasi and Kinkar Khamrui did not claim right of pre-emption, but they individually possessed different lands adjoining the holding transferred in favour of the present petitioners. The lower appellate court has found that the plot of land possessed by Jaladhibala Dasi had the longest common boundary with the land transferred and therefore in modification of the order passed by the learned Munsif, the lower appellate court has allowed the pre-emption application of Jaladhibala alone. The lower appellate court has found that the plot of land possessed by Jaladhibala Dasi had the longest common boundary with the land transferred and therefore in modification of the order passed by the learned Munsif, the lower appellate court has allowed the pre-emption application of Jaladhibala alone. Even assuming that one single deposit of the consideration money together with 10% thereon made by Jaladhibala and Kinkar did not in the eye of law amount to deposit of the said sum by Jaladhibala, even then the same could not be a ground for rejecting Jaladhibala's claim to pre-empt the transfer. In the case of Jatish Chandra Sardar v. Hiralal Sardar (supra), which was relied upon by Mr. Tapash Mukherjee, learned advocate on behalf of the opposite parties, P.N. Mukherjee and Chakravorty, JJ had, inter-alia, pointed out that section 8 of the West Bengal Land Reforms Act did not contain any provision similar to sub-section (2) of section 26F of the Bengal Tenancy Act. Under Sub-section (2) of Section 26F of the said Act a pre-emption application was to be dismissed unless the applicant or applicants at the time of making its deposit in court, the amount of consideration money together with compensation at the rate of 10% of such amount. Thus, section 8 of the West Bengal Land Reforms Act has not made it imperative to deposit the consideration money and the compensation thereon at the time of making pre-emption application or that in default thereof the application would be dismissed. Sub-section (1) of section 8 of the West Bengal Land Reforms Act, according to the Division Bench, in the case of Jatish Chandra Sardar v. Hiralal Sardar (supra), indicated the condition upon which the transfer in favour of the pre-emption is to be made rather than the manner in which the application under Section 8 is to be made. Therefore, the deposit of the consideration money and the compensation thereon need not be necessarily made within four months or three years as the case may be from the date of transfer on which the transfer in favour of any person other than a co-sharer in the holding. The said Division Bench decision is binding upon us and therefore we are unable to accept the submission of Mr. Mitra contrary to the views expressed by the Division Bench." 6. The said Division Bench decision is binding upon us and therefore we are unable to accept the submission of Mr. Mitra contrary to the views expressed by the Division Bench." 6. It would be worth noting the earlier decision of the Single Bench of this Court rendered in case of Dwijapada Halder v. Prafulla Chandra Halder reported in 76 CWN 784 where it is held that though it is not compulsory that the application seeking preemption should be accompanied by a deposit of the consideration money and compensation, if it is deposited between the statutory period, it shall not attract the dismissal of the said application. Though the Single Bench in the above noted decisions held that the deposit of the consideration money and compensation is sine quo non to an application for preemption but the aforesaid observation is contrary to a Division Bench decision rendered in case of Jaladhi Bala Dasi (supra) and, therefore, is not good law. Another Single Bench in case of Bimal Sadhan Koley v. Nikhilesh Koley & Ors; reported in 85 CWN 782 held that if the preemptor fails to deposit the consideration money shown in the registered document, his application under Section 8 of the West Bengal Land Reforms Act read with Section 9 thereof is liable to be rejected. 7. The learned Judge did not take note of the different languages employed in Section 8 & 9 of the West Bengal Land Reforms Act and Section 26F of the Bengal Tenancy Act providing the penal consequences. After repealing Section 25F of the Bengal Tenancy Act, the legislature did not incorporate the stringent consequences as was there in Sub-Section 2 thereof into Section 8 of the West Bengal Land Reforms Act and, therefore, the non-deposit of the consideration money and compensation shall not make the application liable to be rejected. After those judgments rendered by the Single Bench as noted above, it is a consistent view that non-deposit of the consideration money in full is not fatal and can be deposited under the order of the Court when the application for preemption is allowed. 8. After those judgments rendered by the Single Bench as noted above, it is a consistent view that non-deposit of the consideration money in full is not fatal and can be deposited under the order of the Court when the application for preemption is allowed. 8. In this regard, the reference conveniently made to a Division Bench judgment of this Court rendered in case of Sahid Ali v. Sk Abul Kasem reported in 98 CWN 758 wherein it is held: "Section 8 of the West Bengal Land Reforms Act provides for deposit of consideration money without specifying as in the cases of similar provisions in Section 26F of the Bengal Tenancy Act and section 24 of the West Bengal Non-Agricultural Tenancy Act, for deposits simultaneously with the application, nor does the said section provide for any penal consequence, ensuing from non deposit in the said manner by rejection of the application. Section 9, however, makes provision for the proof of actual amount of consideration paid by the transferee for the transfer in their favour along with other sums and also or an enquiry into the truth and correctness of such assertion by the learned Munsif, culminating with a direction by him for deposit of further sum, if any, within the time specified thereof by him." 9. The aforesaid view is further reiterated by the single bench in case of Angurbala Maity v. Kalobala Roy reported in (1998) 1 CWN 534 and it is held: "11. The second contention of Mr. Banerjee is that the pre-emptor having failed to deposit the entire consideration amount mentioned in his client's deed at the time of making the application for preemption, the said application is liable to be dismissed. Mr. Banerjee relied upon the depositions of this Court in Bimal Sadhan Koley v. Nikhilesh Koley & Ors; reported in 85 CWN 782 and In Re. Sm. Namita Biswas reported in 96 CWN 1121. 15. In answer to the second point raised by Mr. Banerjee, Mr. Dutta relied upon a Division Bench decision of this court in Sahid Ali v. Sk. Abdul Kasem reported in 98 CWN 758, wherein the Division Bench has overruled the decision in Bimal Sadhan Koley (supra) and has held that non-deposit of consideration money mentioned in the disputed deed along with the application for preemption is not fatal. 18. As regards the second contention of Mr. Abdul Kasem reported in 98 CWN 758, wherein the Division Bench has overruled the decision in Bimal Sadhan Koley (supra) and has held that non-deposit of consideration money mentioned in the disputed deed along with the application for preemption is not fatal. 18. As regards the second contention of Mr. Banerjee, as indicated earlier, the point has been conclusively resolved by the Division Bench in Sahid Ali (supra) and as such the said contention of Mr. Banerjee is without any merit." 10. Since last three decades, it is a consistent view that non-deposit of full consideration money is not fatal to an application under Section 8 of the West Bengal Land Reforms Act as the said provision does not imbibe within itself any penal consequences. Neither in Section 8 nor in Section 9 of the West Bengal Land Reforms Act, the word 'preemption' is used though they sought to achieve such purposes. The right is conferred on the bargadar, co-sharer and the raiyat possession land adjoining to such plot of land which is transferred to any person other than the co-sharer of the raiyat in the plot of land, to apply for transfer. Section 9 (1) of the said Act makes it imperative for notice of the application to the transferee or any person interested and to prove consideration money paid for the transfer and other sums. In respect of the lands including any paid for annulling encumbrances created prior to the date of transfer and after making an inquiry, the Munsif may direct the applicant to deposit such further sum within the time specified by him and after the deposit of such sum shall make the order for payment of the sum to the transferee or the person interested and shall make the further order for transfer of the portion or share of the plot of land in favour of the applicant. Therefore, the deposit of money is relatable to a transfer and not at the time of making the application. 11. The conjoint reading of the aforesaid provision shows that the transfer may be ordered only on deposit of the consideration money so determined by the Munsif and any other sums together with the compensation being 10% of that amount. Therefore, the deposit of money is relatable to a transfer and not at the time of making the application. 11. The conjoint reading of the aforesaid provision shows that the transfer may be ordered only on deposit of the consideration money so determined by the Munsif and any other sums together with the compensation being 10% of that amount. Unless the adjudication is made over the entitlement of the applicant to seek transfer under Section 8 (1) of the said Act, it is not imperative to deposit the consideration money along with the application. 12. The uniform view which is prevalent since last three decades and applicable in the fields and is settled; should not be disturbed. The doctrine of stare decisis is based on the legal maxim "stare decisis et non quieta movere" which means to stand by the decisions rather to disturb it what is settled. Lord Coke aptly described the said doctrine in his classic English version as "those things which have been so often adjudged ought to rest in peace". The Supreme Court in case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat reported in (2005) 8 SCC 534 held: "Stare decisis is not a dogmatic rule allergic to logic and reason; it is a flexible principle of law operating in the province of precedents providing room to collaborate with the demands of changing times dictated by social needs, state policy and judicial conscience." 13. The aforesaid doctrine is explained and applied in Indian Law by the Supreme Court in case of Shanker Raju v. Union of India reported in (2011) 2 SCC 132 in the following: "14. In Krishena Kumar v. Union of India this Court has explained the meaning and importance of sparing (sic adhering to) application of the doctrine of stare decisis: "33. Stare decisis et non quieta movere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Article 141 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. Apart from Article 141 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it." 15. In Union of India v. Paras Laminates (P) Ltd. this Court observed as under: "9. It is true that a Bench of two members must not lightly disregard the decision of another Bench of the same Tribunal on an identical question. This is particularly true when the earlier decision is rendered by a larger Bench. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. Persons affected by decisions of tribunals or courts have a right to expect that those exercising judicial functions will follow the reason or ground of the judicial decision in the earlier cases on identical matters." It has been opined that in the absence of a strict rule of precedent, litigants would take every case to the highest court, in spite of a ruling to the contrary, in the hope that the decision may be overruled. 18. The second observation we wish to make is, the doctrine of binding precedent has the merit of promoting certainty and consistency in judicial decisions. The pronouncement of law by a larger Bench of this Court is binding on a Division Bench of this Court, especially where the particular determination by this Court not only disposes of the case, but also decides a principle of law. The pronouncement of law by a larger Bench of this Court is binding on a Division Bench of this Court, especially where the particular determination by this Court not only disposes of the case, but also decides a principle of law. We further add that it would be inappropriate to reagitate the very issue or a particular provision, which this Court had already considered and upheld." 14. This Court, therefore, does not agree with the submission of Mr. Banerjee that the application under Section 8 (1) of the West Bengal Land Reforms Act is to be accompanied by the deposit of the consideration money and the compensation. The judgement of the Trial Court, therefore, suffers from illegality and infirmity. 15. The same is hereby set aside. 16. The revisional application succeed. 17. However, there shall be no order as to costs.