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2015 DIGILAW 587 (CAL)

Sankar Das v. Rabindra Chandra Das

2015-07-20

ASHOKE KUMAR DASADHIKARI

body2015
JUDGMENT : Ashoke Kumar Dasadhikari, J. The order impugned passed by the Additional District Judge, Fast Track, Third Court, Siliguri, in Civil Revision Case No. 27(S) of 2003 filed against the order dated 28th October, 2003 passed by the learned Civil Judge, Junior Division, Siliguri in Misc. Judicial (Preemption) Case No. 37 of 2003 is under challenge in this revisional application. 2. Mrs. Sarkar, learned Counsel appearing for the petitioner, submits that the petitioner moved an application under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the 'Act') against the opposite party for preemption of a portion of plot No. 568 under R.S. Khatian No. 6/12, which was subsequently recorded as new plot No. 135 and new Khatian No. 216 and thereafter Khatian No. 247. 3. She submits that the petitioner moved one application stating that the price fixed for the land was exorbitant and not according to the current market rate. She submits that the application moved by the plaintiff/petitioner was for proper determination of the land price and also for a direction to deposit the same. She submits that the application was rejected by the learned Court below holding that there was no scope to exempt the preemptor/petitioner from depositing the consideration money. However, the learned Judge recorded that Section 9 of the Act only provides for enquiry in respect of preempting property if the transferee disputed the amount of consideration money and, therefore, at that stage, preemptor did not have any right to raise any dispute in respect of consideration money and the Court has no jurisdiction at that stage of enquiry about the actual value of the preempting property on the basis of the application of the preemptor. Learned Court below was of the view that the Court cannot accept the application without deposit of the consideration money and can hold enquiry in respect of actual value of the land. 4. However, against the order of the learned Trial Judge a revisional application was filed under Section 115A of the Code of Civil Procedure but at the time of hearing this application by virtue of amendment of the C.P.C. the learned Additional District Judge, Fast Tract, Third Court, Siliguri, did not have any jurisdiction to entertain the revisional application. Since the learned Additional District Judge did not have jurisdiction to hear the revisional application, the same was dismissed. 5. Since the learned Additional District Judge did not have jurisdiction to hear the revisional application, the same was dismissed. 5. Learned Counsel submits that in view of such rejection, the petitioner have no other alternative but to file this revisional application questioning the trial Court's order. She submits that Section 9 of the Act gives power to the learned Trial Judge to adjudicate upon the complaint made by the preemptor/petitioner on the value of the land in question. She submits that the application filed by the petitioner ought not to have been rejected simply because no deposit was made as required under Section 8 of the Act. She further submits that when there is dispute about the price of the land the learned Court below ought to have decided the price of the land and to grant opportunity to the petitioner/preemptor to deposit that amount only after such fixation. The learned Court below ought not to have rejected the preemption application nor the application, filed by the petitioner/ preemptor for adjudication of its prices. According to her, the preemption application could be entertained without depositing a portion of money even. She, therefore, cited some judgments in support of her contention that without making payment the preemption application is entertain able. The first judgment cited by her is reported in AIR 1972 Calcutta 409 [Dwijapada Haider v. Prafulla Chandra Haidar]. She submits that this Hon'ble High Court have held that the Appellate Tribunal has got no jurisdiction to reject the petitioner's application under Section 8(1) of the Act simply because the applicant made a short deposit of the consideration money. Where the consideration money is disputed, it would be sufficient compliance of Section 8(1) of the Act, if the applicant deposits the balance of consideration money when the Revenue Officer makes a final order either granting or refusing preemption after the amount of consideration money payable by the preemptor, has been adjudicated under Section 9(1) of the Act. 6. The other decision cited by the learned Counsel is reported in [1971] Indian Law Reports 213 [Jyotish Chandra Sardar v. Hira Lal Sardar]. In this judgment the Hon'ble Division Bench held that under Section 26F of the Bengal Tenancy Act, which now stands repealed, a co-sharer/tenant was entitled to apply for preemption. 6. The other decision cited by the learned Counsel is reported in [1971] Indian Law Reports 213 [Jyotish Chandra Sardar v. Hira Lal Sardar]. In this judgment the Hon'ble Division Bench held that under Section 26F of the Bengal Tenancy Act, which now stands repealed, a co-sharer/tenant was entitled to apply for preemption. Sub-section (2) of that section made it imperative to deposit the consideration money and the compensation at the time of making the application and, in default, the application was to stand dismissed. The Hon'ble Appeal Court was of the view that there was no such provision in Section 8 of the Act. It was for that reason the Appellate Authority held that the Sub-Divisional Magistrate in his discretion could extend the time. Referring the aforementioned judgment, she submits that Section 8 of the Act did not contain the default clause. Therefore, the learned Court below ought not to have rejected the application of the petitioner. However, she submitted that the order impugned passed by the learned Court below be set aside and the learned Court below be directed to allow the petitioner to maintain the preemption petition and, thereafter, adjudication for fixing the land value be held and further to extend the time to deposit the amount. 7. Learned Counsel appearing for the opposite party submission that the issue has already been decided in case of Susanta Jadav v. Rupchand Dhar reported in 2013 (3) CHN (Cal) 140. He submitted that learned Single Judge of this Hon'ble Court after careful consideration of the aforementioned judgments held that non-deposit of entire consideration money along with application for preemption is not fatal and, as such, application filed under Section 8 of the Act cannot be rejected on the ground of short deposit of consideration money and this Court held that if any dispute with regard to the actual consideration money arises, the petitioner/preemptor would be permitted to file an application with a short deposit but the petitioner cannot claim a decision on the said application filed under Section 8 of the Act on merit without first satisfying the Court about the justiciability of making such a short deposit. 8. He submits that in the instant case, there is no deposit either in part or full. Therefore, the order passed by the learned Court below is a valid order and this Hon'ble Court should not interfere in it. 9. 8. He submits that in the instant case, there is no deposit either in part or full. Therefore, the order passed by the learned Court below is a valid order and this Hon'ble Court should not interfere in it. 9. Considered the submissions made by the learned Counsel appearing for the parties. 10. It is undisputed that the pre-emptor/petitioner filed his application under Section 8 of the Act for preemption without deposit of any money but the provision under Section 8 of the Act clearly stipulates that 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. Section 9 of the aforementioned Act makes it clear that on the deposit mentioned in sub-section (1) of Section 8 being made, the Munsif shall give notice of the application to the transferee, it 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. The Munsif may after such enquiry direct the applicant to deposit such further sum, if any, within the time specified by him and on such sum being deposited, he shall make 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. 11. 11. The provisions under Sections 8 and 9 of the Act are quoted hereunder: "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 subsection (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." 9. Munsif to allow the application and apportion lends 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, ceases 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 percent 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." 12. The judgment delivered in case of Susanta Jadav (supra), noting of the judgments cited before this Court and also considering the provisions of the aforementioned Act the learned Single Judge of this Court has come to a conclusion that the application filed under Section 8 of the Act cannot be rejected on the ground of any short deposit and in that case the learned Civil Judge did not dismiss the application on the ground of short deposit but required the petitioner to pay the balance amount and the learned Court below was of the firm view that in case of dispute, if raised by the petitioner with regard to the actual consideration money, then the petitioner would be permitted to file an application with a short term deposit but cannot claim a decision on the application filed under Section 8 of the Act on merit without first satisfying the Court about the justiciability of making such deposit. It was also observed by the learned Judge that prima facie in absence of any evidence of reliable character being produced by the petitioner to disprove the consideration amount mentioned in the impugned transfer deed, the learned Civil Judge appears to have taken a correct view. 13. Keeping in mind the ratio of the aforementioned judgments and taking note of the relevant provisions under Sections 8 and 9 of the Act, it is clear that maintaining of an application under Section 8(1) is not permissible without any deposit. However, the petitioner can make short deposit with cogent evidence or reliable evidence showing that the amount fixed for transfer is not the correct valuation or correct price of the land-in-question, so transferred. However, in the instant case, no such deposit was made and application was filed for making an enquiry over the correct valuation or price of the land and there is no such provision in the Act for such, determination thereby giving relaxation in favour of the preemptor/petitioner not to deposit any amount of money. 14. However, in the instant case, no such deposit was made and application was filed for making an enquiry over the correct valuation or price of the land and there is no such provision in the Act for such, determination thereby giving relaxation in favour of the preemptor/petitioner not to deposit any amount of money. 14. Therefore, this Court is of the view that the decision of the learned Court below holding that the preemptor/petitioner has no right to question the amount of consideration money at the very beginning without making any deposit (may be short deposit) to maintain the application under Section 8(1) of the Act cannot be said as illegal. Therefore, I do not find any illegality and/or material irregularity in the order passed by the Civil Judge, Junior Division, Siliguri in Misc. Judicial (Pre-emption) Case No. 37 of 2003 dated 28m October, 2003. Thus, there is no merit in this revisional application. 15. Accordingly, this revisional application fails and, as such, dismissed. 16. There will be, however, no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.