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2025 DIGILAW 391 (CAL)

Navin Agarwal v. Sanjay Kumar Agarwal

2025-07-31

SABYASACHI BHATTACHARYYA

body2025
JUDGMENT : SABYASACHI BHATTACHARYYA, J. 1. Affidavit of service filed today be kept on record. 2. An interesting question has been raised in the present case. Both the courts below rejected the application under Section 8 of the West Bengal Land Reforms Act, 1955 filed by the revisionist petitioners for pre-emption on the dual grounds of contiguous ownership and non-notified co-sharership. 3. Learned counsel for the petitioners argues that the learned courts below failed to take into consideration the fact that simultaneously with the filing of the pre-emption application on October 16, 2023, the petitioner, in a bid to deposit the entire statutory deposit, applied for a challan which has been annexed at page 167 of the revisional application. The challan was sanctioned and handed over to the petitioners on the next day, i.e. on October 17, 2023. However, since the Treasury, where the deposit was to be physically made, was closed between October 18 and November 1, 2023, the deposit could not be made with the Treasury before November 2, 2023 when it was actually made. 4. Thus, it is argued that the deposit was made well within time. Since the date of cause of action pleaded in the pre-emption application is July 7, 2023, the filing of the application for pre- emption as well as the deposit ought to be construed to be October 16, 2023, which was within the limitation period of four months, as stipulated under Section 8(1) of the 1955 Act for the ground of contiguous ownership, as well as within the limitation period of one year for the ground of non-notified co-sharership. 5. Learned counsel for the petitioners places reliance on the judgment of the Division Bench judgment of this court in the matter of Nurul Islam vs. Esratun Bibi reported at 2017 SCC OnLine Cal 11063 for the proposition that if an application for pre-emption under Section 8 is filed on the ground for non-notified co-sharership, Article 97 of the Limitation Act, 1963 applies and the period of limitation shall be construed to be one year. 6. It is further argued that the learned courts below misconstrued the judgment rendered by the Supreme Court in Barasat Eye Hospital and Ors. 6. It is further argued that the learned courts below misconstrued the judgment rendered by the Supreme Court in Barasat Eye Hospital and Ors. vs. Kaustabh Mondal reported at (2019) 19 SCC 767 , since in the said judgment, the Supreme Court observed that there cannot be any speculative litigation without the deposit of full consideration and as such, the application for pre-emption would not be “triggered” unless the entire amount was paid. Read in conjunction with the provisions of Sections 8(1) and 9(1) of the 1955 Act, it is argued, the deposit, even if not made simultaneously with the application, has to be made within the limitation period. 7. Learned counsel for the pre-emptee/ opposite party no. 1 opposes the revisional application and cites Abdul Matin Mallick vs. Subrata Bhattacharjee (Banerjee) and Ors. reported at (2022) 7 SCC 147 where the proposition laid down in Barasat Eye Hospital was considered by the Hon'ble Supreme Court. Upon such consideration, it was observed by the Hon'ble Supreme Court that deposit of the entire sale consideration with additional 10% of the sale consideration has to be made along with the pre- emption application, which is a statutory and mandatory requirement and is a pre-condition before any further enquiry as contemplated under Section 9 of the Act is held. 8. Thus, the proposition sought to be advanced by the petitioners, it is argued, to the effect that a deposit can be made subsequent to the filing of the pre-emption application as well, is not tenable in the eye of law. 9. Learned counsel for the opposite party no.1 also places reliance on Barasat Eye Hospital (supra), where it was held that to give a discretion to the pre-emptor, without deposit of the full consideration, to file the pre-emption application would give rise to speculative litigation where the pre-emptor, by depositing smaller amounts, can drag on the issue of the vendee exercising rights in pursuance of the valid sale deed executed in his favour. 10. In the said judgment, the Supreme Court further held that the requirement of exercising the right of pre-emption within the stipulated time in respect of the very provision was held to be sacrosanct, that is, there can be no extension of time granted even by recourse to Section 5 of the Limitation Act. 11. 10. In the said judgment, the Supreme Court further held that the requirement of exercising the right of pre-emption within the stipulated time in respect of the very provision was held to be sacrosanct, that is, there can be no extension of time granted even by recourse to Section 5 of the Limitation Act. 11. Learned counsel for the pre-emptee opposite party no.1 next argues, by placing reliance on a Division Bench judgment of this court in the matter of Usha Rani Kundu vs. Agradut Sangha reported at (2006) 1 CalLJ 627 , that an unregistered club cannot acquire or hold immovable property as a living person. By placing reliance on the definition of “raiyat” in Section 2(10) of the 1955 Act, learned counsel argues that “raiyat” means a person or an institution holding land for any purpose whatsoever. 12. In the present case, it is an admitted position that the petitioners claim to be the partners of an unregistered firm and have filed the pre-emption application in such capacity. 13. Learned counsel for the pre-emptee/ opposite party no.1 argues that although a partnership firm, even if unregistered, can purchase and acquire properties in its own name, such a firm cannot litigate in a court of law in its name, in view of the bar under Section 69 of the Partnership Act. 14. As such, the partnership firm of the petitioners could not come within the ambit of “institution” as defined in Section 2(10) to claim a right of pre-emption in the capacity of a raiyat. On the other hand, in the event the petitioners claim the right of pre-emption in their personal capacities, the very right is defeated, since the purchase was made in the name of the partnership firm. The partnership firm, since unregistered, could acquire a valid title in the property but the petitioners, in their individual capacities, could not claim ownership of such title to the said property which belongs to the partnership firm. If that be so, it is argued, the pre-emption application is not maintainable at all, since the petitioners, in their individual capacities, are neither contiguous owners nor co- sharers, non-notified or otherwise, vis-à-vis the concerned plot. 15. If that be so, it is argued, the pre-emption application is not maintainable at all, since the petitioners, in their individual capacities, are neither contiguous owners nor co- sharers, non-notified or otherwise, vis-à-vis the concerned plot. 15. Learned counsel appearing for the petitioners, in reply, submits that the last limb of argument of the pre-emptee/opposite party no.1 was never urged before either of the fora below and as such, cannot be taken for the first time in an application under Article 227 of the Constitution of India. 16. Upon hearing learned counsel for the parties, the Court comes to the following conclusions: 17. Insofar as the first ground is concerned, on a composite reading of the judgments of the Supreme Court in the matter of Barasat Eye Hospital (supra) and Abdul Matin Mallick (supra), it transpires that the Supreme Court held that a pre-emption application cannot be triggered, in the sense as contemplated in Section 9(1), which envisages that a notice can be issued on a pre- emption application only upon full deposit being made as per the stipulation in the statute, unless such deposit is made. 18. In Abdul Matin Mallick (supra), the Supreme Court placed reliance on the proposition laid down in Barasat Eye Hospital (supra) and observed that the deposit of the entire sale consideration with the additional 10% of the sale consideration along with pre-emption application is a statutory and mandatory requirement and it is a pre-condition before any further enquiry as contemplated under Section 9 of the Act is held. In the said case, it was observed, the pre-emptors had admittedly not deposited the entire sale consideration with additional 10% of the sale consideration along with the pre-emption application, which aspects were held not to have been considered by the first appellate court or the High Court. 19. In Abdul Matin Mallick (supra), the Supreme Court proceeded accordingly to dismiss the pre-emption application. 20. 19. In Abdul Matin Mallick (supra), the Supreme Court proceeded accordingly to dismiss the pre-emption application. 20. It is conspicuous that in paragraph 9 of the Abdul Matin Mallick (supra), the Supreme Court observed that, faced with the decision of the Supreme Court in the case of Barasat Eye Hospital (supra) and in the light of the observations made by the said court in the judgment of Abdul Matin Mallick (supra), that along with pre-emption application, the pre- emptors have to deposit the entire sale consideration with additional 10% and only thereafter, the further enquiry can be conducted and therefore, unless and until the same is complied with, the pre-emption application would not be maintainable, it was held that the High Court was not justified in permitting the pre- emptors to subsequently deposit balance sale consideration with additional 10%. 21. However, a distinction has to be drawn between a case where a part deposit is made along with the application and the balance deposit is made subsequently, in which case, it would be justified to hold that the pre-emption application was not filed with the statutory deposits and accordingly could not be triggered and no notice could be served, and a case where the full deposit is made after the filing of the pre-emption application but within the limitation period. 22. The Supreme Court, in Abdul Matin Mallick (supra), although observing that the statutory deposit has to be made along with the pre- emption application, did not categorically lay down a proposition of law that unless such deposit is made, the pre-emption application will be dismissed outright. In the facts of the case of Abdul Matin Mallick (supra), the Supreme Court had dismissed the pre-emption application because the balance deposit was made much subsequently. However, the Supreme Court itself, in the self-same judgment, categorically relied on Barasat Eye Hospital (supra) and also observed that unless along with the pre-emption application, the pre-emptors do not deposit the entire sale consideration with additional 10%, the further enquiry shall not be conducted as per Section 9 of the Act, 1955. 23. Thus, from the judgment of Abdul Matin Mallick (supra), two divergent propositions can be culled out. 24. It is well-settled that a judgment is a precedent for what it holds and not something which can be derived or deduced therefrom. 23. Thus, from the judgment of Abdul Matin Mallick (supra), two divergent propositions can be culled out. 24. It is well-settled that a judgment is a precedent for what it holds and not something which can be derived or deduced therefrom. The proposition in Abdul Matin Mallick (supra) was rendered in the light of Barasat Eye Hospital (supra), where the Supreme Court merely held that a pre-emption application shall not be “triggered” unless the entire deposit is made. In Abdul Matin Mallick (supra) as well, the Supreme Court observed not that the pre-emption application shall be rejected outright, but in the ratio part of the judgment, the Supreme Court held that unless the entire statutory deposit is made along with the application, further enquiry cannot be conducted as per Section 9 of the 1955 Act. 25. Thus, relying on the actual ratio laid down in Abdul Matin Mallick (supra), shorn of the factual conclusion arrived at by the Hon'ble Supreme Court in the said judgment, we have to read the same in the context of Sections 8 and 9 of the 1955 Act. Section 8(1) provides that an application shall be made for pre-emption on the grounds stated therein for transfer of the plot of land on deposit of the consideration money, together with further sum of 10% of that amount. The question which arises is whether the expression “on deposit of the consideration money together with further sum of 10%” qualifies the 'transfer' or the 'application' itself. Such question, however, is answered in Section 9(1) of the 1955 Act in clear terms. The said sub-section does not stipulate the sanction of dismissal of the application at the threshold if the entire deposit is not made simultaneously with the application but that the Munsif shall give notice of the application to the transferee only upon the deposit being made. 26. As such, the proposition of Abdul Matin Mallick (supra) which, as per the Supreme Court itself, followed the judgment of Barasat Eye Hospital (supra), has to be read in conjunction with the latter. 27. The ratio decidendi which can thus be distilled from both the judgments is that unless the statutory deposit is made, no further enquiry under Section 9(1) of the 1955 Act can be initiated, in other words, the application cannot be “triggered”. 27. The ratio decidendi which can thus be distilled from both the judgments is that unless the statutory deposit is made, no further enquiry under Section 9(1) of the 1955 Act can be initiated, in other words, the application cannot be “triggered”. Thus, the application for pre- emption will remain in limbo until and unless the entire deposit is made. Such an interpretation is also in consonance with the scheme of Section 9 of the 1955 Act, which provides that in the event a dispute is raised as to the actual consideration amount, such dispute has to be enquired into by the Munsif and a decision taken thereon, only after which the assessed amount can be paid. Such scheme would be frustrated if we construe Abdul Matin Mallick’s judgment to have held that the entire consideration has to be deposited simultaneously with the application, otherwise the pre-emption application will be rejected then and there, since in a case where a subsequent dispute is raised as to consideration money, the proposition of Abdul Matin Mallick (supra), if construed strictly, would also interdict any enquiry on the consideration amount and deposit on the consequentially assessed amount from being deposited subsequently, thereby negating the entire purpose of Section 9 of the 1955 Act. 28. In view of the above interpretation, I am of the opinion that the only fetter for taking out an application under Section 8 of the 1955 Act, in the backdrop of Section 9, is that the entire deposit has to be made within the limitation period vis-à- vis the grounds taken in the pre-emption application. 29. There can be four different scenarios in such context. 30. First, if there is a single ground on which the pre-emption is sought, the limitation period will be defined by such ground and unless the entire statutory deposit is made within the limitation period, simultaneously with the application for pre-emption or subsequent to the filing of the same but within the limitation period, no notice would be issued under Section 9(1) as per the proposal laid down in Abdul Matin Mallick (supra). 31. The second scenario could be that a pre-emption application is founded on several grounds, in which case it should be the shortest limitation period out of all the grounds taken in the application for pre-emption, which should be the defining outer limit for making the entire statutory deposit. 31. The second scenario could be that a pre-emption application is founded on several grounds, in which case it should be the shortest limitation period out of all the grounds taken in the application for pre-emption, which should be the defining outer limit for making the entire statutory deposit. Unless such amount is deposited within the limitation period, it will be open to the court taking up the pre-emption application to reject the application for pre- emption on the ground that the entire deposit has not been made within the statutory limitation period. Alternatively, the application would be proceeded with in respect of the other grounds, within the limitation period of which the statutory deposit is made, but would be deemed still-born in respect of the ground in respect of which the limitation period has expired before the statutory deposit is made. 32. A third situation may arise when the entire statutory deposit is made simultaneously with the application for pre-emption, when of course, the only scope of enquiry will remain in respect of the consideration amount, which can only be raised subsequently on an objection by the pre-emptee opposite party and thereafter, an enquiry can be held. 33. The fourth possibility is when the pre-emption application is filed without the statutory deposit and such deposit is not made within the limitation period. In such case, since the application would remain defective and a non- starter till the statutory deposit is made, it would be rejected as soon as the limitation period expired. 34. Out of the above, in the present case, the second scenario is applicable, inasmuch as the pre-emption application was filed on two separate grounds. Following the proposition of law laid down in Abdul Matin Mallick (supra), the application would be liable to rejection, or be treated to be still-born in respect of the ground of contiguous ownership unless the statutory deposit is made within the limitation period of four months. 35. However, I find from the records that the challan was sought to be obtained and applied for on October 16, 2023, which, incidentally was the date of filing of the pre-emption application, and well within the limitation period for filing an application under Section 8 of the 1955 Act on the ground of contiguous ownership. 35. However, I find from the records that the challan was sought to be obtained and applied for on October 16, 2023, which, incidentally was the date of filing of the pre-emption application, and well within the limitation period for filing an application under Section 8 of the 1955 Act on the ground of contiguous ownership. Needless to say, the pre-emption application and the application for challan were made much within the limitation period of one year on the ground of non-notified co-sharership. 36. Taking a pragmatic view, in the light of the practice followed in our district courts, the deposit as contemplated in the 1955 Act is not a solitary act of merely depositing the amount physically. Since, as per the paraphernalia which are observed by our district courts, at least in the State of West Bengal, the deposit has to be made in the Treasury, we cannot be oblivious of the procedure that such deposit has to be preceded by a proper challan being obtained from the court, which is not issued unless there is some application or matter on board. 37. Hence, it would be impossible for a prospective pre-emptor to make the statutory deposit physically before the Treasury unless the pre-emption application is actually filed and a challan issued by the concerned court for making the statutory deposit against the number allotted to the pre-emption application. 38. Thus, the initiation of the process of deposit is the date on which the challan is applied for, which process culminates on the date when the actual deposit is made in the Treasury. The said process is a continuum and the individual acts of applying for and obtaining the challan and making the deposit in the Treasury cannot be dissociated as discrete components from each other by isolating the date of actual deposit as the only date which is to be considered as the date of deposit. 39. In the present case, the petitioners contend that the challan was applied for on October 16, 2023 and was sanctioned on the very next date. However, from the day thereafter i.e. October 18, 2023 till November 1, 2023, the Treasury was closed. The actual deposit was made on the very first opening working day of the Treasury thereafter, i.e. on November 2, 2023. However, from the day thereafter i.e. October 18, 2023 till November 1, 2023, the Treasury was closed. The actual deposit was made on the very first opening working day of the Treasury thereafter, i.e. on November 2, 2023. Thus, the entire period during which the treasury remained closed must be deducted from the period from the delay committed by the petitioners. Hence, the relevant date would be October 16, 2023, when the challan was applied for and November 2, 2023 when the deposit was made. In the circumstances of the case, if the petitioners are correct in submitting that the Treasury was really closed from November 18, 2023 till November 1, 2023, the deposit would be valid, since the physical deposit of the money with the treasury on November 2, 2023 would relate back to the date of application for the challan i.e. October 16, 2023, which is simultaneous with the filing of the pre- emption application and well within the limitation period for pre-emption on the ground of contiguous ownership. However, this Court, sitting in superintending jurisdiction under Article 227 of the Constitution, is not the appropriate forum to decide on facts whether the Treasury was actually closed on the relevant dates and such consideration had to be made by the learned court of first instance. 40. However, outright dismissal of the pre- emption application by both the courts below on the ground that the deposit was not made in time, simultaneously with the pre-emption application is not tenable in the eye of law, in the absence of any adjudication on the considerations as indicated above. 41. Furthermore, since a new objection of maintainability has been raised inasmuch as the pre-emptee argues that the petitioners, in their individual capacities, cannot maintain the pre- emption application, since the property was acquired by the partnership firm, alternatively the petitioners cannot apply for pre-emption as partners since the firm is unregistered, the said question is also required to be adjudicated by the court of first instance. Accordingly, in view of the above observations, CO No. 113 of 2025 and CO 114 of 2025 are allowed, thereby setting aside the orders impugned therein respectively, being the judgment and order dated March 20, 2025 passed by the learned District Judge at Jalpaiguri in Miscellaneous Appeal No. 03 of 2024, thereby affirming the order dated December 18, 2023 passed by the learned Civil Judge, Junior Division at Jalpaiguri in Miscellaneous (Pre-emption) Case 79 of 2023, and the judgment and order dated March 20, 2025 passed by the learned District Judge at Jalpaiguri in Miscellaneous Appeal No. 02 of 2024, thereby affirming the order dated December 18, 2023 passed by the learned Civil Judge, Junior Division at Jalpaiguri in Miscellaneous (Pre-emption) Case 78 of 2023. 42. The matter is hereby remanded to the court of the learned Civil Judge, Junior Division at Jalpaiguri to re-adjudicate the issue of maintainability on the grounds as indicated above. For further clarification, the learned Civil Judge, Junior Division at Jalpaiguri shall decide as to whether the Treasury was closed between November 18, 2023 and November 1, 2023. In the event the petitioners are able to prove such dates, the issue of maintainability on the ground of the statutory deposit being made subsequent to the pre-emption application shall be turned down. Otherwise, the learned Trial Judge shall ascertain whether, taking into account the delay occasioned by the petitioners in making the deposit after the date of challan, the statutory deposit was ultimately made within four months from the date of cause of action. If not, the learned Trial Judge shall grant liberty to the petitioners to file a fresh application for pre-emption under Section 8 within the period of limitation of one year from the date of cause of action only on the ground of un- notified co-sharership. Otherwise, if the statutory deposit was made within the limitation period for both grounds of pre-emption, the learned Trial Judge shall treat the pre-emption application as maintainable and proceed with the adjudication of the same in accordance with law. 43. That apart, liberty is granted to the pre- emptee/opposite party no. Otherwise, if the statutory deposit was made within the limitation period for both grounds of pre-emption, the learned Trial Judge shall treat the pre-emption application as maintainable and proceed with the adjudication of the same in accordance with law. 43. That apart, liberty is granted to the pre- emptee/opposite party no. 1 to raise the objection as to maintainability before the learned Civil Judge, Junior Division also on the alternative ground that if the petitioners have applied in their individual capacities, the pre-emption application would not be maintainable, since the property-in- question was acquired in the name of the partnership firm, in which case the partnership firm would be the raiyat and the petitioners would not be entitled to seek pre-emption; alternatively, if the petitioners claim as partners of the said partnership firm, in view of the partnership firm being unregistered, whether the pre-emption application is barred under Section 69 of the Partnership Act. 44. If such question is raised, the learned Trial Judge shall grant opportunity to both parties to argue on the same and decide the question of maintainability on such issue as well. 45. In view of the long pendency of the matter, it is expected that the issue of maintainability on both counts, if raised, shall be decided by the learned Trial Judge at the earliest, preferably within two months from the date of communication of this order to the learned Trial Judge and thereafter the learned Trial Judge shall proceed with the hearing of the pre-emption case subject to the outcome of the maintainability issue.