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2018 DIGILAW 549 (CAL)

Naymul Haque @ Nainul Haque v. Allauddin Sk.

2018-08-08

AMITABHA CHATTERJEE, ANIRUDDHA BOSE

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JUDGMENT : 1. These references primarily involve the question as to whether the right of pre-emption specified in Section 8 of the West Bengal Land Reforms Act, 1955 could be exercised in a case where the entire interest in the subject land is being transferred by a raiyat, if the other conditions stipulated in the aforesaid section are fulfilled. In a decision delivered by a learned Single Judge of this Court in the case of Kinkar Mahato Vs. Sahan Mahato [2005(3) ICC 5], it was held that in such a situation, the right of pre-emption contemplated in the said provision could not be invoked. In a later decision, Biswanath Sarkar & Anr. Vs. Sunit Kumar Saha [(2013) 3 WBLR 271(Cal)], another learned Single Judge of this Court held that if a co-sharer is holding an undivided undemarcated share in a plot of land and such co-sharer sells the said share to any person other than the co-sharer, the other co-sharer would have the right of pre-emption. The same view (as in the case of Biswanath Sarkar) was also expressed in another judgment of this Court in the case of Sk. Sajhan Ali Vs. Sk. Saber Ali [ (2015) 3 CHN 689 (Cal)]. In Sk. Sajhan Ali, it was specifically held that if a raiyat transfers his entire portion or share in a plot of land to a person other than the co-sharer of raiyat, pre-emption is permissible. 2. In C.O. 1164 of 2015, the revisional jurisdiction of this Court was invoked in respect of an application in which the pre-emption claim of the applicant was rejected by the learned Courts below on the ground that the entire share in the subject property stood transferred. The case of Kinkar Mahato (supra) was relied upon by the lower appellate Court, assailing whose order the revisional application was filed. A learned Single Judge referred the matter to the Hon’ble Chief Justice noting that there was conflicting views of this Court on the subject issue expressed in Kinkar Mahato (supra) on one hand and Biswanath Sarkar (supra) and Sk. Sajhan Ali (supra) on the other. The learned Single Judge opined that the conflict ought to be resolved on constituting appropriate Bench. 3. Sajhan Ali (supra) on the other. The learned Single Judge opined that the conflict ought to be resolved on constituting appropriate Bench. 3. Referring to Section 8 of the 1955 Act, the learned Single Judge formulated the point of conflict in the following manner :- “Thus, there are conflicting views on the interpretation of the word ‘or’ in Section 8(1) of the West Bengal Land Reforms Act, 1955. While Kinkar Mahato (supra) interpreted the word ‘or’ as ‘of’, the subsequent decisions in Biswanath Sarkar (supra) and Sk. Sajhan Ali (supra) held the word ‘or’ to be disjunctive. As to whether the word ‘or’ should be read as ‘of’ as held in Kinkar Mahato (supra) or it should be treated as disjunctive, needs to be resolved.” 3. On the same issue, the revisional applications registered as C.O. 485 of 1995, C.O. 1937 of 2011, C.O. 4379 of 2016, C.O. 67 of 2013, C.O. 1993 of 2013, C.O. 2695 of 2013, C.O. 283 of 2015, C.O. 4380 of 2015, C.O. 2718 of 2015 and C.O. 4040 of 2015, C.O. 2407 of 2016, C.O. 4299 of 2016 have been referred to us, as in all these revisional applications the same point is involved. But the conflict points have not been specifically formulated in all the applications referred to us. Thus, we shall address the point formulated in C.O. 1164 of 2015 while answering these references. 4. Section 8 of the 1955 Act stipulates:- “8. But the conflict points have not been specifically formulated in all the applications referred to us. Thus, we shall address the point formulated in C.O. 1164 of 2015 while answering these references. 4. Section 8 of the 1955 Act stipulates:- “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 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 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. (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 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.” 5. We have already recorded the differing views of the learned Single Judges of this Court in interpretation of the aforesaid provision, as formulated by the learned Single Judge while referring C.O. 1164 of 2015 to the Hon’ble Chief Justice. Kinkar Mahato (supra) was decided relying on three earlier authorities of this Court, Misri Show Vs. Belur Nikunjamoyee Gadar Institution [1978(1) CLJ 532], Gadadhar Ghosh Vs. Sastidhar Ghose [2002 CLJ 423] and Netai Chandra Das Vs. Sisir Kumar Das [67 CWN 333]. It was held in Kinkar Mahato (supra). “14. Section 8 of the West Bengal Land Reforms Act makes it clear that the right of pre-emption can be exercised either by the co-sharer raiyat or by the adjoining land owner or by the bargadar only when a portion or share of a plot of land of a raiyat is transferred to any person other than the co-sharer raiyat in the plot of land. 15. The said provision makes it clear that it is only when a co-sharer raiyat transfers a portion of the share of his interest in the plot of land, then only, the right of pre-emption can be exercised by the aforesaid persons. 16. The aforesaid position of land was settled by this Hon'ble Court on repeated occasions. 15. The said provision makes it clear that it is only when a co-sharer raiyat transfers a portion of the share of his interest in the plot of land, then only, the right of pre-emption can be exercised by the aforesaid persons. 16. The aforesaid position of land was settled by this Hon'ble Court on repeated occasions. Reference may be made to the following decisions where it was uniformly decided by this Court that when the entire holding of a raiyat is transferred, the right of pre- emption cannot be exercised by the preemptors:- (1) Misri Show v. Belur Nikunjamoyee Gadar Institution reported in 1978 (1) CLJ 532; (2) Gadadhar Ghosh v. Sastidhar Ghose reported in 2002 CLJ 423; (3) Netai Chandra Das v. Sisir Kumar Das reported in 67 CWN 333.” (quoted verbatim) 6. The view of the learned Single Judge in the case of Biswanath Sarkar (supra) was : “22. The legislature does not use any word or expression unnecessarily. The word used in the legislation carries a definite meaning and purposes. The legislature consciously used the word “or” before the word “portion” and “share” which necessarily implies that if a portion of a plot of land of a raiyat or the share of the plot of land of a raiyat is transferred to any person, the right of pre-emption is bestowed upon the co-sharers or the bargadar or the adjoining plot holder. 23. If the interpretation, which Dr. Mondal tried to make, is taken then it is only in case where a portion of a share of a raiyat, who is holding the said share undemarcated, undivided and unpartitioned, then only the said pre-emption can be claimed and not otherwise. 24. This Court has no hesitation to hold that if a co-sharer is holding an undivided, undemarcated share in respect of a plot of land and if he sells the said share to any person other than the co-sharer, the right of pre-emption is conferred or bestowed upon the other co-sharers under Section 8 of the West Bengal Land Reforms Act, 1955.” 7. The learned Single Judge deciding the case of Sk. Sajhan Ali (supra) considered the decision in the case of Kinkar Mahato (supra) and opined:- “27. The learned Single Judge deciding the case of Sk. Sajhan Ali (supra) considered the decision in the case of Kinkar Mahato (supra) and opined:- “27. In the case of Kinkar Mahato (supra) though the Court in paragraph 14 thereof recorded that the right of preemption can be exercised when a portion or share of a plot of land of a raiyat is transferred to a person other than the co-sharer raiyat, but held that it is only when a co-sharer raiyat transfers a portion of a share of the plot of land, the right of preemption can be exercised. 28. The words used in the statute are not surplusages. The Court should not add or subtract any word used in the Section as each word carries a definite object behind its incorporation. If the word ‘of’ is used in stead of the word ‘or’ it is opposed to an intendment of the legislature and shall restrict its applicability to a special class of cases which, the legislature never intended. 29. The Apex Court in case of Sri Jyearam Educational Trust & Ors. v. A.G. Syed Mohideen & Ors. reported in (2010) 2 SCC 513 : [2010(2) ICC (S.C.) 260] held the word ‘or’ has a special significance and may not necessarily be used as disjunctive but inclusive as both the eventualities are well conceived. 30. The word ‘or’ in its generic term is a particle used to connect words, phrases or classes representing alternatives. The word ‘or’ is at times used to join terms when either one or the other or both are indicated. 31. It is well settled that a provision of a statute should be read, as it is in a natural manner, plain and straight without adding, substituting or omitting any words. It is only when such plain and straight reading or ascribing the natural and normal meaning to the words on such reading, leads to ambiguity, vagueness, uncertainty or absurdity which would be opposed to the legislative intendment, recourse can be made to a settled rules of construction and interpretation to ascertain the true meaning of the provision. 32. The judgment which is contrary to the statute is not a good law and is treated as per incurium. 32. The judgment which is contrary to the statute is not a good law and is treated as per incurium. The coordinate Bench in case of Kinkar Mahato (supra) has substituted the word ‘of’ in place of word ‘or’ without indicating the legislative omission and, therefore, cannot be held to be a judgment binding upon the coordinate Bench. 33. This Court, therefore, hold that the preemption application is maintainable even when the entire share or entire portion of a plot of land is transferred by a raiyat to any person other than the co-sharer raiyat.” 8. Subsequently, different judgments have been delivered following the two different lines of reasoning but we do not consider it necessary to refer to each of these decisions. Learned Counsel for the parties have also relied on various authorities. But these authorities again we are not reproducing here as the controversy involved has been settled by the Hon’ble Supreme Court in the judgment of Chhana Rani Saha Vs. Mani Pal (Civil Appeal No. 5905 of 2009) delivered on 15th November, 2017. In that case, the plea of pre-emption of a contiguous tenant under Section 8 of the 1955 Act was rejected on two grounds by the First Appellate Court. The first ground was that the appellant was not a co-sharer of the land. The second ground was that the vendor did not sell a portion of the land but had sold the entire land in question. The First Appellate Court’s view was affirmed by the High Court. 9. The Hon’ble Supreme Court allowed the appeal against the decision of this Court, holding:- “7. Section 8 confers a right of pre-emption on a bargadar that is a tenant of the land, or a co-sharer of the raiyat who owns the land and on any other raiyat possessing land ajoining such plot of land. One of the conditions on which a right of pre-emption may be claimed is where a portion or share of land or any other raiyat is transferred to any person other than a co-sharer of a raiyat in the plot of the land. That is to say, if a land is held by two co-sharers and one of the cosharers seeks to transfer a portion or share belonging to him to another person, the other co-sharer may claim a right of pre-emption. But this, however, does not exhaust the entire section. That is to say, if a land is held by two co-sharers and one of the cosharers seeks to transfer a portion or share belonging to him to another person, the other co-sharer may claim a right of pre-emption. But this, however, does not exhaust the entire section. A similar right of pre-emption is also conferred on a raiyat, who possesses an adjoining plot of land. This is the appellant’s case. There is no dispute that the appellant is a raiyat possessing adjoining plot of land and was entitled to assert his right of pre-emption. In fact he was rightly allowed the ownership of the land in question by the trial Court, since it was found the vendor did not give due notice of sale of the land to the appellant and, in fact, did not wish to sell the land to the appellant. This aspect of the matter has been completely overlooked by the High Court, which has decided the case only on the basis that the vendor did not transfer a portion or share of the land in question and the appellant was not a co-sharer. 8. In view of the undisputed possession that the appellant is a raiyat, who held adjoining plot of land to the land in question, the judgment of the High Court is liable to be set aside and is, accordingly, set aside. The order of the trial Court is hereby restored. The right, title, interest and possession of the suit land in question acquired by Mani Pal by virtue of a Registered Sale Deed No. 881 dated 28.02.2000, shall vest with the appellant. The respondent Mani Pal shall also deliver the possession of the said land to the appellant within a period of six months from today.” 10. In the case of Chhana Rani Saha (supra), the contiguous land-owner’s right of pre-emption was upheld in a situation where the entire land in question was sold. This is the opinion of the learned Single Judge in the cases of Biswanath Sarkar (supra) and Sk. Sajhan Ali (supra). The word “or” in Biswanath Sarkar (supra) and Sk. Sajhan Ali (supra) have been construed to be disjunctive. The view of the learned Single Judge in Kinkar Mahato (supra) was that right of pre-emption could be exercised only when a co-sharer raiyat transferred a portion of the share of his interest in the plot of land. Sajhan Ali (supra). The word “or” in Biswanath Sarkar (supra) and Sk. Sajhan Ali (supra) have been construed to be disjunctive. The view of the learned Single Judge in Kinkar Mahato (supra) was that right of pre-emption could be exercised only when a co-sharer raiyat transferred a portion of the share of his interest in the plot of land. In view of the decision of the Hon’ble Supreme Court in the case of Chhana Rani Saha (supra), the word “or” has to be read as “or” only, and not “of”. This answers the reference. Let the applications be placed before the learned Court having jurisdiction on the subject-dispute.