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2024 DIGILAW 515 (CAL)

Maya Rani Hazra v. Narayan Chandra Roy

2024-03-08

PARTHA SARATHI SEN

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JUDGMENT : Partha Sarathi Sen, J. 1. In the present revision the question of right of preemption in case of sale/conveyance of the entire share of a raiyat is relevant. Section 8 of the West Bengal Land Reforms Act, 1955 (‘1955 Act’ for short) is the relevant provision dealing with the right of preemption. The Section reads thus: “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 a 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] 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 gist [or heba-bill-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 11B.] [(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 be 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 provisions of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972.]” 2. The cursory reading of the aforesaid provision makes it clear that right of pre-emption is available to the following persons in order of preference (i) bargadar as defined in Section 2 of the Act, (ii) co-sharer of a raiyat, (iii) raiyat holding land adjoining to the land/plot in question. The opening words of Section 8 refers to portion or share of a plot of land of a raiyat. If we read the word ‘or’ in its generic sense then it is a particle used to connect both the words i.e. ‘portion’ and ‘share’. It may also be read as a disjunctive to separate both the words i.e. ‘portion’ and ‘share’. The aforesaid question as to whether in the event of sale of share of a raiyat the right of pre-emption survives or not has taxed the ingenuity of so many Hon’ble Judges of this Court and various contradictory judgments have been passed by different Benches. 3. There is no definition of ‘portion’ or ‘share’ in the act. The aforesaid question as to whether in the event of sale of share of a raiyat the right of pre-emption survives or not has taxed the ingenuity of so many Hon’ble Judges of this Court and various contradictory judgments have been passed by different Benches. 3. There is no definition of ‘portion’ or ‘share’ in the act. If the word ‘or’ is used in its generic sense as discussed supra, in a piece of land share of a co-sharer may be a portion of the plot. Similarly, the share of a co-sharer in a particular piece of land or plot may refer to a portion of a plot only. It depends on the reading of the matter in peculiarity of facts in each case. 4. Hon’ble Justice Jyotirmay Bhattacharya in the case of Kinkar Mahato vs. Sahan Mahato; [2005 SCC OnLine Cal 21 : (2005) 3 ICC 5 (Cal) held thus : “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 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.” 5. Having held thus in paragraph 18 Hon’ble Justice Jyotirmay Bhattacharya has held thus: “18. Now applying the said test, it appears that the entire interest of the raiyat in the plot of land in question was sold by raiyat in favour of the pre-emptees. As such, the right to exercise pre-emption has not accrued in favour of the pre-emptees.” 6. In a subsequent case of Sk. Sajhan Ali vs. Sk. Saber Ali; [2015 (3) CHN (CAL) 689, Hon’ble Justice Harish Tandon in paragraph 34 has held thus: “34. This Court, therefore, hold that the pre-emption 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.” 7. Sajhan Ali vs. Sk. Saber Ali; [2015 (3) CHN (CAL) 689, Hon’ble Justice Harish Tandon in paragraph 34 has held thus: “34. This Court, therefore, hold that the pre-emption 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.” 7. I do not want other catena of decisions which are also contrary on this point alone except the one decided by Hon’ble Justice Sabyasachi Bhattacharyya in Dilip Kumar Dhara vs. Ranjit Kumar Mondal; (AIR 2019 Calcutta 67) wherein in paragraph 48 of judgement it is held thus: “48. Hence, the first question formulated in paragraph No. 30 above is decided in the following manner: an application for pre-emption under Section 8 of the 1955 Act lies only if a portion or share of a plot of land of a raiyat, and not the entire plot, is transferred. 8. Hon’ble Justice Sabyasachi Bhattacharyya in taking the aforesaid view followed the well settled principle of precedents to the effect that in case of High Court, the earlier view of a coordinate Bench should be followed in the event of conflict between the earlier view and the later view. 9. The question that haunts my ingenuity has been reflected at the outset of this order. Entire plot of land of a raiyat can only be transferred in the event the plot is under single ownership of that raiyat and in that case no question of pre-emption arise but when entire share of a co-sharer in a plot of land is transferred whether question of pre-emption arise or not is still within the domain of conflicting views. Act is also silent about the definition of “share” of a co-sharer. The co-sharers without any partition by metes and bounds may by convenience and arrangement among them be in possession of a particular portion of a plot for so many years. The question of partition under Section 14 of the 1955 Act is a provision coming to effect after the said Act was amended by West Bengal Land Reforms (Amendment) Act of 2000 with a retrospective effect from 07.09.1969. Prior to that many co-sharers in a particular plot might be having enjoyment of possessory right over a portion of a plot not partitioned in accordance with Section 14. Prior to that many co-sharers in a particular plot might be having enjoyment of possessory right over a portion of a plot not partitioned in accordance with Section 14. The conflicting views by two coordinate Benches constrained me to think, out of the two views which one should be followed in doing substantive justice between the parties. These conflicting views also create confusion among the Judges of Courts below as they are not so much trained about the “law of precedents” etc. In view of my discussion supra the matter be referred to larger bench to decide:- “Whether the right of pre-emption is available to the pre-emptor in case of transfer/conveyance of entire share or entire portion of a plot of land of a co-sharer to any person other than the co-sharer raiyat ?” 10. The Registry is directed to place the matter before the Hon’ble Chief Justice, High Court at Calcutta for placing the matter in the appropriate Bench. Later 1. List this matter for hearing after receipt of the answer of the reference.