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2016 DIGILAW 404 (CAL)

Helu Pal @ Piru Pal v. Master Souvik Sarkar

2016-05-05

SIDDHARTHA CHATTOPADHYAY

body2016
JUDGMENT : Siddhartha Chattopadhyay, J. The petitioner challenges the Order No. 13 dated 5th February, 2016, passed by the learned Civil Judge, (Junior Division) 1st Court, at Arambagh in Pre-emption Miscellaneous Case No. 31 of 2014, by which he has been directed to deposit a sum of Rs.2,09,000/- towards the balance consideration money of the suit property together with statutory interest as a precondition to the pre-emption proceeding being continued. 2. In the revisional application the petitioner ventilated all his grievances contending inter alia that the learned Court below failed to construe the true import of Section 9 of West Bengal Land Reforms Act. According to him, a pre-emption suit is well maintainable even by filling a short deposit than the value of the deed, if there is an inflated consideration amount. Learned Court below ought to have made a proper inquiry by taking the evidence and should have taken a pragmatic view. He also wanted to assail the order in question contending inter alia that the evidence was led by the parties, but that was not properly considered. 3. As against this, learned Counsel appearing on behalf of the opposite party contended that such an application is not maintainable in view of Section 9 (6) of West Bengal Land Reforms Act. His contention is such that after making proper inquiry and on appreciation of evidence the learned Court below has passed a very well-reasoned order, which does not warrant any interference. 4. From the rival contention of the parties it seems to me that this Court is called upon to answer: (1) If this revisional application is maintainable under Section 9 (6) of West Bengal Land Reforms Act? (2) If the consideration money assessed by the Court on proper inquiry and on taking evidence, has to be deposited or not and when the same would be deposited? Point No. - (1) 5. Learned Counsel appearing on behalf of the petitioner/opposite party submits that if there is an appellate forum prescribes in the Act itself, the revisional application does not lie. He relied on the decision reported in (2003) 3 SCC 524 (Sadhana Lodh v. National Insurance Company Ltd.) and argued that where a statutory right to file an appeal is there, it is not open to High Court to entertain an application under Article 227 of the Constitution of India. He relied on the decision reported in (2003) 3 SCC 524 (Sadhana Lodh v. National Insurance Company Ltd.) and argued that where a statutory right to file an appeal is there, it is not open to High Court to entertain an application under Article 227 of the Constitution of India. In reply to such submission, learned Counsel appearing on behalf of the petitioner argued that if Section 9 (6) is absolutely appealable or revision lies that is well settled by our High Court in numerous occasions time to time. 6. After hearing the Counsel appearing on behalf of the respective parties and considering the judgment of (Sk. Samsul Huda & Ors. v. Mosharaf Hussen & Ors.) (2002) 2 CHN 227 , (Pasupati v. Pratap Kumar) (2003) 4 CHN 347, (State of West Bengal v. Asim Kumar Roy) (2005) 10 SCC 116, I am of the view that the District Judge entertaining appeals under Section 9 (6) of the West Bengal Land Reforms Act, 1955, does not act as 'Persona designata'. Therefore, District Judge hearing the appeal under Section 9 (6) is a Court and not a 'Persona designata', and the revisional application before the High Court is quite maintainable. Therefore, the High Court held that any order passed by the Munsif, the revision lies before the High Court. The main force behind the said decisions were that the order of the Trial Judge having been found to be improper, the High Court under Article 227 of the Constitution of India can set aside such order and direct the Trial Judge to dispose of the case on merits. Since the said decision is still prevailing and by virtue of judicial discipline, I am of the view that any divergent opinion cannot be taken. Therefore, the Point No. 1 is decided in the affirmative. Point No. - 2 7. It is trite law that to get a decree in a pre-emption case, the condition precedent is the deposit of consideration money. After taking a decision in that regard the learned Court below shall proceed to dispose of the case. Section 9 West Bengal Land Reforms Act does not specifically provide as to the procedure to be taken by the Munsif/Civil Judge (Junior Division) to assess the consideration money. It is true that sometimes inflated amount is shown in the deed concealing the actual consideration money to frustrate the claim of the pre-emptor. Section 9 West Bengal Land Reforms Act does not specifically provide as to the procedure to be taken by the Munsif/Civil Judge (Junior Division) to assess the consideration money. It is true that sometimes inflated amount is shown in the deed concealing the actual consideration money to frustrate the claim of the pre-emptor. In such a case for all practical purposes, the Court should follow the provisions of CPC unless the West Bengal Land Reforms Act prescribes a particular procedure. Sometimes Sub-Registrars or District Registrars are asked to adduce evidence by producing two or three deeds of the same locality and of same classification of land to ascertain the valuation. In my considered view, sometimes that may not be actual consideration amount. Sometimes for the purpose of evading required stamp duty less valuation was shown in the deeds. 8. Therefore, safest course in determining the actual consideration amount is to record the evidence of both sides and consider the veracity of the evidence. If no better document is filed in course of evidence, learned Court below may rely on the rate fixed by the District Registrar or from competent registry. It appears from the impugned order that the learned Court below considered the evidence and relied on the assessment made by the concerned registry. Since it involves the fiscal policy of this state and once valuation is assessed by applying the fiscal policy, it would be the safest course to accept the valuation made by the District Registrar. In the order impugned, it appears that the learned Court below has taken a very pragmatic view. It is needless to mention that a revisional Court usually is not supposed to re-apprise the evidence, unless there is a travesty of justice. 9. Now, the question is, when the said consideration money has to be paid? There is no hard and fast rule in the Section 8 or Section 9 West Bengal Land Reforms Act, that the moment the consideration money is assessed by the Court, the petitioner has to deposit the same instantly. This question is set at rest in the judgment reported in 2015 (3) CHN (Cal) 186 (Pradipta Padha v. Laxmi Kanta Maity). Therefore, the petitioner has to pay the consideration money assessed by the Court below if and when his application for pre-emption is allowed. Therefore, the Point No. 2 is also decided accordingly. 10. This question is set at rest in the judgment reported in 2015 (3) CHN (Cal) 186 (Pradipta Padha v. Laxmi Kanta Maity). Therefore, the petitioner has to pay the consideration money assessed by the Court below if and when his application for pre-emption is allowed. Therefore, the Point No. 2 is also decided accordingly. 10. On perusal of the judgment passed by the Court below I do not find any legality or infirmity in it but ordering portion of the impugned order is required to be modified only i.e. the present petitioner has to deposit Rs.2,09,000/- + 10% statutory interest if and when his application is allowed. 11. In the result, the revisional application is allowed in part. The impugned order passed by the learned Court below is hereby modified to the extent as above. Parties to bear their own cost. 12. Let a copy of this judgment be sent to the learned Court below for his information and taking necessary action in accordance with law. 13. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.