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2018 DIGILAW 361 (CAL)

Rabindranath Bhunia v. Sabita Giri

2018-05-08

ASHIS KUMAR CHAKRABORTY

body2018
JUDGMENT : Ashis Kumar Chakraborty, J. 1. The subject matter of challenge in the first revisional application, being C.O. 703 of 2015 is the order dated November 13, 2014 passed by the learned Additional District Judge, 7th Court, Paschim Midnapur, in Misc. Appeal No. 69 of 2011 thereby, upholding the judgment and decree dated August 04, 2011 passed by the learned Civil Judge (Junior Division), 2nd Court, Paschim Medinipur in J. Misc. Case No. 35 of 2005 dismissing the prayer of the petitioner for pre-emption in respect of the properties covered in the registered sale deed dated July 28, 1995 executed by the opposite party no. 2 in favour of the opposite party no. 1. 2. The second revisional application, being C.O. 704 of 2015 is directed against the order dated November 13, 2014 passed by the learned Additional District Judge, 7th Court, Paschim Medinipur, in Misc. Appeal No. 53 of 2011 thereby upholding the judgment and decree dated April 26, 2011 passed by the learned Civil Judge (Junior Division), 2nd Court, Paschim Midnapur in J. Misc. Case No. 42 of 2004 rejecting the prayer of the petitioner in both the revision applications, for pre-emption in respect of the properties covered in the settlement deed, being No. 2664 dated October 20, 1995 executed by the opposite party no.2 co-operative society in favour the opposite party no.1, claiming himself as the contiguous owner of the land in question. 3. Since, the petitioners and the opposite party no.1 in both the revisional applications are same, the right of pre-emtion is claime by the member of the same co-operative society and both the applications involve the same question of law, arising out of similar set of facts, these revisional applications were heard together and the same are disposed of by this common judgment. 4. The only question of law that arises for decision in both the revisional applications is whether a member of a co-operative society holding a plot of land is entitled to pre-empt the transfer of an adjoining land by another member in favour of a third party under Section 8 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as “the Act of 1955”). 5. 5. Since, the above question of law arises out of similar set of facts involving members of the same housing co-operative society in both the revisional applications, for the sake of convenience I deal with the facts with the first revisional application, being C.O. 703 of 2015. 6. Hijli Co-operative Development Society Ltd. (hereinafter referred to as “the Society”) is a co-operative society registered under the provisions of the West Bengal Co-operative Societies Act, 1983 (in short “the Act of 1983”) and the Rules framed thereunder. As per clause 4 of its Bye-laws, the objects of the society are, inter alia, primarily to purchase, take on lease or otherwise acquire land with or without buildings, with a view to the develop the same and to establish settlements for residential purpose only and to lease out such lands to its members on such terms and conditions as are conducive to the development of the settlement. Clause 31 of the Bye-laws of the society and the various sub-clauses provide that no individual member shall be allotted more than one unit of land, measuring not les than 7 decimals and not more than 30 decimals in area, the society shall execute registered lease deeds in respect of each unit of land allotted the members, which will be permanent and heritable. In the event of transfer of any land or any portion thereof by any member, the transferee will have to be accepted as a member by the Managing Committee subject to the Bye-laws, any transfer of a holding or a part thereof in the settlement by a member shall be subject to prior permission granted by the Managing Committee and the society shall exercise its right of pre-emption, in case of a member violating any of the provisions of the Byelaws. 7. In per-suit of its above objects, the said society acquired different plots of land in the district of Paschim Medinipur, including a plot of land measuring about 7 acre and .04 decimal at Mouza-Sonamukhi, P.S. Kharagpur (Town), District-Paschim Medinipur, having R.S. Dag No. 704 under Khatian No. 704. The said society allotted 12 decimals of land in the said R.S. Plot No. 407 to one of its member Gourhari Rakshit and on the death of the latter his son, Tapan Kumar Rakshit became the absolute owner of the said piece of land through inheritance. The said society allotted 12 decimals of land in the said R.S. Plot No. 407 to one of its member Gourhari Rakshit and on the death of the latter his son, Tapan Kumar Rakshit became the absolute owner of the said piece of land through inheritance. By a registered deed of sale dated April 19, 1972 the said Tapan Kumar Rakshit sold the said 12 decimals of land of the said Plot No. 407 to one Binapani Paul. Subsequently, by a registered sale deed dated February 06, 1995 the said Binapani Paul, out of her 12 decimals of land in the said plot no. 407, sold 3 3/8 decimals land to the petitioner. The opposite party no. 2, Smt. Jaba Maity another member of the said society was the holder of 12 decimals of land in the said plot no. 407 situate at the adjoining western side of the petitioner’s plot of land in the said Plot No. 407. By a registered sale deed dated July 28, 1995 the opposite party no. 2, out of her 12 decimal of land in the said R.S. Plot No. 407, sold 6 decimals of land to the opposite party no. 1, Smt. Sabita Giri (the opposite party no.1 in both the revisional application). According to the petitioner, since he himself and the opposite party no. 2 owned their respective portions of land in the said R.S. Plot No. 407 he was the co-sharer of the said opposite party no. 2 in respect of R.S. Plot No. 407. The petitioner also claims to be the adjoining land owner of the portion of the land purchased by the opposite party no. 2 in the said plot no. 407 from her predecessor, Nandalal Basu, who was the member of the said society and, as such, he is entitled to pre-empt the said transfer by the opposite party no. 2 in favour of the opposite party no. 1. With these allegations the petitioner filed an application under Section 8 of the Act of 1955, being J. Misc. Case No. 35 of 2005 (hereinafter referred to as “the pre-emption case”) in the Second Court of learned Civil Judge (Junior Division) at Paschim Medinipur. 2 in favour of the opposite party no. 1. With these allegations the petitioner filed an application under Section 8 of the Act of 1955, being J. Misc. Case No. 35 of 2005 (hereinafter referred to as “the pre-emption case”) in the Second Court of learned Civil Judge (Junior Division) at Paschim Medinipur. In his application, the petitioner described the land in respect of which he was seeking to exercise the right of pre-emption as schedule-A, being 6 decimals of land of J.L. No. 188, Khatian No. 704, R.S. Plot No. 407 (society Plot No. 85G). He also stated the facts relating to his acquisition of 3 - 3/8 decimals of land in the said Plot No. 407 (society Plot No. 85H), the 12 decimals of land in the said R.S. Plot No. 407 belonging to the opposite party no. 2. The petitioner further alleged that he has no land in excess of the ceiling limit and if he becomes the owner of the demised property then the said property would not exceed the limit as provided under Section 14(N) of the Act of 1955. The opposite party no. 1 the transferee of the demised land contested the said application. She filed her written objection denying all material allegations made by the petitioner in his application. Subsequently, the opposite party no. 1 amended his written objection. 8. The opposite party no. 1 admitted to have purchased the suit property which was marked as society Plot No. 85H measuring about 12 decimals of land from the opposite party no. 2 but he disputed that the petitioner has any right to pre-empt the transfer of the suit property by the opposite party no. 2 to herself under the Act of 1955. Both the petitioner, as well as the opposite party no. 1 through their respective witnesses adduced evidence before the learned trial Judge. By a judgment and order dated August 04, 2011, the learned trial Judge rejected the said application by the petitioner holding, inter alia, that whether the petitioner had the longest common boundary with the suit property than the opposite party no. 1 or not cannot be determined on the basis of the evidence before the Court. Against the said order dated August 04, 2011 the petitioner filed an appeal, being Misc. Appeal No. 69 of 2011 before the learned Additional District Judge, 7th Court, Paschim Medinipur. 1 or not cannot be determined on the basis of the evidence before the Court. Against the said order dated August 04, 2011 the petitioner filed an appeal, being Misc. Appeal No. 69 of 2011 before the learned Additional District Judge, 7th Court, Paschim Medinipur. In so far as the some of her contention rejected by the learned trial Judge, the opposite party no. 1 also filed a cross-objection against the said order dated August 04, 2011passed by the learned trial Judge. After considering the evidence adduced by the respective parties the learned appellante Court below held that there is no co-sharer in respect of society plot no. 85G a portion of which has been transferred by the opposite party no. 2 in favour of the opposite party no. 1 and relying upon the decision of this Court in the case of Subal Mondal – vs.-Gopal Chandra Mondal reported in (2014) 1 CHN 706 by the judgment and order dated November 13, 2014 rejected the petitioner’s claim to pre-empt the transfer of a portion of said plot no. 85G by the opposite party no. 2 in favour of the opposite party no. 1. Consequently, the learned appellate Court below rejected the appeal filed by the petitioner. As mentioned earlier, it is the said decision of the learned appellate Court below, which the petitioner has assailed in the first revisional application, C.O. 703 of 2015. 9. When this revisional application was taken up for hearing Mr. P.B. Sahu, learned advocate appearing for the opposite parties raised a preliminary objection with regard to the maintainability of the pre-emption application filed by the petitioner on the ground that the petitioner and the opposite party no. 2 are members of the said co-operative society, the opposite party no. 2 is not a “rayat” within the meaning of the said term defined under Section 2(10) of the Act of 1955 and, as such, there cannot be any right of pre-emption against any transfer of land by the opposite party no. 2 or any member of the said co-operative society. 10. Initially Mr. Biswajit Basu, learned advocate appearing for the petitioner raised serious objection to the opposite party no. 1 urging the point of maintainability of the pre-emption application on the ground of the opposite party no. 2 or any member of the said co-operative society. 10. Initially Mr. Biswajit Basu, learned advocate appearing for the petitioner raised serious objection to the opposite party no. 1 urging the point of maintainability of the pre-emption application on the ground of the opposite party no. 2 being a member of the said co-operative society is not a “rayat”, under the Act of 1955, in respect of any land held by him as a member of the co-operative society. He contended that since the said ground of objection with regard to the maintainability of the pre-emption application was not urged by the opposite party no. 1 either before the learned trial Judge or before the learned appellate Court below, she cannot raise such point for the first time before this Court in this revisional application. 11. However, citing the decision of the Division Bench of this Court in the case of Manabendra Dutta & Comp. (P) Ltd. Vs. Umacharan Law & Ors. reported in 68 CWN 179 and the decisions of the Supreme Court in the case of Surja Dev Rai vs. Ram Chandra Roy & Ors. reported in AIR 2003 SC 3044 and Rajendra Sankar Shukla & Ors. vs. State of Chhattisgarh & Ors. reported in 2015 (10) SCC 400 , Mr. Sahu contended that since the objection raised by the opposite party no. 1 is based on the admitted facts of the case and the same goes to the roof of the case involving jurisdictional issue, the opposite party no. 1 is entitled to raise such objection during the hearing of this revisional application. He argued that admittedly the petitioner and the opposite party no. 2 are the members of the said co-operative society and their rights and obligations are governed by the West Bengal Co-operative Society, 2006 (hereinafter referred to as “the said Act of 2006”), the Rules framed thereunder, as well as the bye-laws of the said co-operative society. He urged that neither the said Act of 2006, nor the Rules framed thereunder nor the bye-laws of the said co-operative society confers any right on any of its member to pre-empt transfer of any land by any member of the society to another member. He urged that neither the said Act of 2006, nor the Rules framed thereunder nor the bye-laws of the said co-operative society confers any right on any of its member to pre-empt transfer of any land by any member of the society to another member. It was further argued that any member of the said co-operative society cannot claim himself to be a raiyat within the meaning of the said term as defined in Section 2(10) of the Act of 1955. According to Mr. Sahu, admittedly, the petitioner and the opposite party no. 2 were holding their respective plots of land in the said R.S. Plot No. 407 recorded in the name of the co-operative society as a member of the said co-operative society and it is the said co-operative society who is the raiyat in whose name of the record of rights has been prepared. Relying on the decision of the Supreme Court in the case of Daman Singh and Ors. vs. State of Punjab and Ors. reported in AIR 1985 SC 973 , it was urged that it is well settled law that once a person becomes a member of a co-operative society he looses his individuality qua the society and he has no independent right except those given to him by the statute, that is, the Act of 2006 and the bye-laws of the said co-operative society. It was further argued that when a person becomes a member of a co-operative society by entering into a contract with others regulating his conduct vis-à-vis the society, the members constituting it and submerging his rights in the common right to be enjoyed by all the members and in that process his rights merge in the rights of the society and are controlled by the Act and the bye-laws of the society. In this regard, Mr. Sahu relied on the decision of the Supreme Court in the case of Zoroastrian Co-operative Housing Society Ltd. Vs. District Registrar, Co-operative Societies and Ors. reported in 2005(5) SCC 632 . He also referred to the various clauses of the bye-laws of the said society namely, clauses and submitted that it is the said co-operative society which had allotted the various plots of the said R.S. Plot No. 407 to its respective members on the basis of the shares held by them. reported in 2005(5) SCC 632 . He also referred to the various clauses of the bye-laws of the said society namely, clauses and submitted that it is the said co-operative society which had allotted the various plots of the said R.S. Plot No. 407 to its respective members on the basis of the shares held by them. He further referred to as per clause 31 of the bye-laws of the said co-operative society, a member can transfer his share in the said cooperative society in favour of another member and to a non-member who is eligible for membership subject to the approval of the Managing Committee of the co-operative society. He then referred to clause 31 of the Bye-laws of the said co-operative society providing for the power of the Managing Committee to prepare a scale plan of the settlement along with plot nos., sub-plot nos., with area, roads, parks etc. According to the opposite party no.1, as per clause 31(5) of the said Bye-laws the society is required to execute registered lease deeds in respect of each unit of land allotted to a member providing, inter alia, that in the event of transfer, the transferee will have to be accepted as a member by the Managing Committee subject to the bye-laws and any transfer of holding or a part thereof in the settlement by a member shall be subject to prior permission granted by the Managing Committee. It was submitted that in the present case in terms of the said provisions contained in the said Bye-laws of the said co-operative society, the opposite party no. 2 transferred the demised plot in favour of the opposite party no. 1 after obtaining prior permission/approval of the Managing Committee of the said co-operative society. 12. However, Mr. Biswajit Basu, learned advocate appearing for the revisionalist submitted that the subject matter of the present lis is situated within the area where the provisions of the Act of 1955 applies. According to him, the term “raiyat” has been defined under Section 2(10) of the Act of 1955 to mean a person or any institution holding land for any purpose whatsoever and, as such, when the petitioner as well as the opposite party no. According to him, the term “raiyat” has been defined under Section 2(10) of the Act of 1955 to mean a person or any institution holding land for any purpose whatsoever and, as such, when the petitioner as well as the opposite party no. 1 and the respective members of the cooperative society hold land in R.S. Dag No. 407, under Khatian No. 704 each of them is a “raiyat” within the meaning of the said Act of 1955. It was the further contention of the petitioner that neither the West Bengal Co-operative Societies Act, 1983 nor the subsequent legislation puts any restriction or embargo on exercise of the right of pre-emption of a member or a co-operative society under Section 8 of the Act of 1955, subject to the fulfilment of the grounds contemplated under the said provision are proved. The learned advocate for the petitioner further contended that in the instant case by executing the respective registered deeds of settlement the said co-operative society allotted different portions of the undermarked land in R.S. Dag No. 407 to its various members. Therefore, according to the petitioner, all the members of the said co-operative society including the opposite party no. 2 holding their respective portions of land in R.S. Dag No. 407, are the “co-sharer of a raiyat in a plot of land” as defined under Section 2(6) of the Act of 1955. Urging these contentions Mr. Basu strongly contended that the learned appellate Court below committed a patent error of law in passing the impugned order thereby, rejecting the petitioner’s claim for preemption on the ground that there is no co-sharer in respect of the plot of land in question. 13. As I have recorded above, the opposite party no. 1 has raised strong objection to the maintainability of the pre-emption application itself filed by the petitioner, before the learned trial Judge, under Section 8 of the Act of 1955. The petitioner, however, contended that the opposite party no. 1, for the first time in this revisional application, cannot be allowed to urge that a member of the co-operative society cannot maintain an application under Section 8 of the Act of 1955 to pre-empt any transfer of any land by another member. 14. The petitioner, however, contended that the opposite party no. 1, for the first time in this revisional application, cannot be allowed to urge that a member of the co-operative society cannot maintain an application under Section 8 of the Act of 1955 to pre-empt any transfer of any land by another member. 14. In the present case, it is an admitted fact that the entire plot of land, being R.S. Plot No. 407 was acquired by the said co-operative society which allotted various demarcated portion of the said plot of land to its members. It is also an admitted fact that the petitioner and the opposite party no. 2 are the members of the said co-operative society. In view of such admitted facts. the question whether, a member of a co-operative society can invoke the provisions of Section 8 of the Act of 1955 to claim any right to pre-empt the transfer of any portion of land held by another member goes to the root of the jurisdiction of the trial Court to entertain the pre-emption case filed by the petitioner. In the case of Mahananda Dutt (supra) cited by the opposite party no. 1, the Division Bench of this Court held that it will be wholly inequitable and against established principles if the exercise of discretion in a revisional application is to be refused merely on the ground that a point of jurisdiction, going to the root of the matter, cannot be entertained or allowed by the High Court, simply because it was not taken in the trial Court. It is also trite law that based on admitted facts a new ground involving a pure question of law can be raised at any stage, before the High Court exercising jurisdiction under Article 226 or under Article 227 of the Constitution of India, as well as before the Supreme Court in a Special Leave Petition. In this regard, the opposite party no. 1 was absolutely correct to place reliance on the decisions of the Suprme Court in the cases of Surja Dev Rai (supra) and Rajendra Sankar Shukla (supra). 15. In view of the above position of law, I am inclined to accept the contention raised on behalf of the opposite party no. In this regard, the opposite party no. 1 was absolutely correct to place reliance on the decisions of the Suprme Court in the cases of Surja Dev Rai (supra) and Rajendra Sankar Shukla (supra). 15. In view of the above position of law, I am inclined to accept the contention raised on behalf of the opposite party no. 1 that while deciding this application, exercising revisional jurisdiction under Article 227 of the Constitution of India, this Court can consider the issue involvimg a pure question of law, whether a member of a co-operative society does have any right to pre-empt any transfer of land by another member under Section 8 of the Act of 1955. 16. Since the principal contention urged on behalf of the opposite party no. 1, whether a member of a co-operative society independent of any right conferred under the Co-operative Societies Act or the Rules framed thereunder or the by-laws of the society, can claim any right of pre-emption under Section 8 of the Act of 1955 goes to the root of the jurisdiction of the learned trial Court to entertain the pre-emption case filed by the petitioner, I find it expedient to decide such issue first. The said co-operative society was registered under the Act of 1983 and the rules framed thereunder. The petitioner could not referer to any provision either in the Act of 1983 or the Rules framed thereunder or the Bye-laws of the society conferring any right on him to pre-empt the transfer of the land in question by the opposite party no. 2 in favour of the opposite party no. 1. From a perusal of the pre-emption application filed by the petitioner before the learned trial Judge, particularly the averments made in paragraph 14 thereof it is clear that he filed the said application by invoking Section 8 of the Act of 1955. In the case of Daman Singh (supra), the Constittution Bench of the Supreme Court was dealing with a challenge, by several co-operative societies of Punjab, the vires of Section 13(8) of the Punjab Co-operative Societies Act, providing for compulsory amalgamation of the co-operative societies if it is necessary in the interest of the cooperative societies. In the case of Daman Singh (supra), the Constittution Bench of the Supreme Court was dealing with a challenge, by several co-operative societies of Punjab, the vires of Section 13(8) of the Punjab Co-operative Societies Act, providing for compulsory amalgamation of the co-operative societies if it is necessary in the interest of the cooperative societies. One of the grounds urged by the petitioner’s co-operative societies before the Supreme court was that Sections 13(8), (9) and (10) of the aforementioned Act did not make any express provision for the issue of notice to the members of the concerned co-operative societies and where, therefore, violative of the principles of natural justice. While rejecting such contention. the Supreme Court held that once a person becomes a member of a co-operative society, he loses his individuality qua the society and he has no independent rights except those given to him by the statute or the Bye-laws. In the case of Zoroastrian Co-operative Housing Society Ltd.(supra) cited by the opposite party no. 1, the Supreme Court held as follows: “27. Under the Contract Act, 1872, a person sui juris has the freedom to enter into a contract. The bye-laws of a co-operative society setting out the terms of membership to it, is a contract entered into by a person when he seeks to become a member of that society. Even the formation of the society is based on a contract. This freedom to contract available to a citizen cannot be curtailed or curbed relying on the fundamental rights enshrined in Part III of the Constitution against State action. A right to enforce a fundamental right against State action, cannot be extended to challenge a right to enter into a contract giving up an absolute right in oneself in the interests of an association to be formed or in the interests of the members in general of that association................... It is, therefore, a fallacy to consider, in the context of co-operative societies, that the surrendering of an absolute right by a citizen who becomes a member of that society, could be challenged by the said member by taking up the position that the restriction he had placed on himself by entering into the compact, is in violation of his fundamental right of freedom of movement, trade or right to settle in any part o the country. He exercises his right of association when he becomes a member of a society by entering into a contract with others regulating his conduct vis-a-vis the society, the members constituting it, and submerging his rights in the common right to be enjoyed by all and he is really exercising his right of association guaranteed by Article 19(1)(c) of the Constitution in that process. His rights merge in the rights of the society and are controlled by the Act and the bye-laws of the society..........” 17. In view of the ratio of the above decisions of the Supreme Court in the cases of Daman Singh (supra) and Zoroastrian Co-operative Housing Society Ltd. (supra), it is settled law that the bye-laws of a co-operative society setting out the terms of membership to it, is a contract entered into by a person when he seeks to become a member of the society and the rights and obligations of any member of a Housing Cooperative Society qua the other members are only those which are provided under the Act or the Rules framed thereunder and the by–laws of the society. The Supreme Court has even held that a right to enforce a fundamental right against state action, cannot be extended to challenge the right to enter onto a contract giving up an absolute right in oneself in the interests of an association to be formed or in the interests of the members in general of that association. In the present case, under the aforementioned Bye-Laws, the society alone has a right of pre-emption in certain situations. Therefore, in view of the clause 31 of the Bye- Laws of the society and in the absence of any provision either in the Act or in the Rules framed thereunder or in the Bye-laws society conferring any right on any member to claim pre-emption in respect of any transfer of any land by any other member of the society, the petitioner or any other member of the society cannot invoke Section 8 of the Act of 1955 to pre-empt any transfer of any land or building by another member of the society. 18. 18. In view of the findings I have arrived above, even it were to be held that the petitioner as the member of the Co-operative Housing Society, holding land is a “raiyat” under the Act of 1955 in that event also, in the facts of the present case his applications under Section 8 of the Act of 1955 to pre-empt transfer of any land either by the society or any of its member were not maintainable. 19. For the reasons as aforesaid, the learned trial Judge lacked the jurisdiction to entertain the pre-emption application, being J. Misc. Case No. 35 of 2005 filed by the petitioner of the first revisional application. Accordingly, the first revisional application C.O. 703 of 2015 fails. 20. The above finding of this Court that a member of a co-operative society cannot maintain an application under Section 8 of the Act of 1955 to pre-empt any transfer of any land or building by any member of the co-operative society is squarely applicable to the pre-emption application filed by the petitioner in the second revisional application also. Accordingly, the learned Civil Judge, 2nd Court (Junior Division), Paschim Midnapore lacked the jurisdiction to entertain J. Misc. Case No. 42 of 2004 filed by the petitioner in the second revisional application, C.O. 704 of 2015. Therefore, even the second revisonal application, C.O. 704 of 2015 also fails. 21. However, there shall be no order as to costs. 22. Urgent certified copy of this judgment, if applied for, be supplied to the parties subject to compliance with all the requisite formalities.