Abdul Matin Mallick vs Subrata Bhattacharjee (Banerjee) Case

Abdul Matin Mallick vs Subrata Bhattacharjee (Banerjee) Case

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3499 OF 2022

Abdul Matin Mallick …Appellant(s)

Versus

Subrata Bhattacharjee (Banerjee) and Ors. …Respondent(s)

WITH

CIVIL APPEAL NO. 3500 OF 2022

Abdul Matin Mallick …Appellant(s)

Versus

Subrata Bhattacharjee (Banerjee) and Ors. …Respondent(s)

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court of Calcutta in C.O. NO. 4266 of

2016 by which the High Court has dismissed the said writ petition

preferred by the appellant herein and has confirmed the order passed by

the first Appellate Court allowing the application submitted by the

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respondents herein – pre-emptors, the original respondents –

revisionists before the High Court, the appellant herein - pre-emptee has

preferred the present appeal arising out of SLP (C) No. 5394 of 2022.

1.1 Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court of Calcutta in C.O. NO. 1153 of

2016 by which the High Court has allowed the said writ petition preferred

by the respondents herein and has revived the execution case filed by

the respondents for implementing the pre-emption order and has further

directed that the executing court shall direct possession to be handed

over to the pre-emptors in respect of the property in question positively

within 31.08.2021, the appellant herein – pre-emptee has preferred the

present appeal arising out of SLP (C) No. 4261 of 2022.

2. The facts leading to the present appeals in nutshell are as under:-

2.1 That the disputed property in question, which was the subject

matter of application for pre-emption before the Appropriate Authority

under the West Bengal Land Reforms Act, 1955 (hereinafter referred to

as the “Act, 1955”) belonged to one Khudiram Bhattacharya, who died

on 17.04.2001 leaving behind him, surviving his widow Purnima

Bhattacharya who also died on 14.08.2001 and three sons namely

Subrata, Debabrata and Ratan (the pre-emptors herein) and two

daughters Kalyani and Alpana, the vendors of the pre-emptee (appellant

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herein). On the death of Khudiram Bhattacharya and his widow, the

aforesaid three sons and two daughters inherited the property in

question each having undivided 1/5th share therein. The daughters of the

original owner - Khudiram Bhattacharya sold their undivided 2/5th share

in the property in question to the appellant herein - pre-emptee - Abdul

Matin Mallick vide registered sale deed dated 23.11.2011. The sale in

favour of the appellant by the daughters of the said Khudiram

Bhattacharya was sought to be pre-empted by the sons of said

Khudiram Bhattacharya on the ground that their sisters have transferred

their undivided share in the property in question to the appellant, a

stranger to the said property without serving statutory notice under SubSection (5) of Section 5 of the Act, 1955. The said application under

Section 8 of the Act, 1955 was registered as Misc. Pre-emption Case

No. 8 of 2012 before the learned Trial Court.

2.2 The learned Trial Court dismissed the said application for preemption as not maintainable mainly on the ground that since the vendors

of the pre-emptee had transferred their entire share in the suit property,

the application for pre-emption under Section 8 of the Act, 1955 is not

maintainable.

2.3 Feeling aggrieved and dissatisfied with the judgment and order

passed by the learned Trial Court dismissing the pre-emption

application, pre-emptors preferred the appeal before the First Appellate

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Court being Misc. Appeal No. 7 of 2014. The Appellate Court allowed

the said appeal and set aside the order passed by the learned Trial

Court and consequently allowed the application for pre-emption holding

that even when a co-sharer of a plot of land transfers his entire share to

any person other than a raiyat in the said plot of land, the application for

pre-emption under Section 8 of the Act, 1955 would be maintainable.

2.4 Feeling aggrieved and dissatisfied with the order passed by the

First Appellate Court allowing the pre-emption application, the purchaser

– pre-emptee filed the present revision application before the High Court.

2.5 By the impugned judgment and order, the High Court has

dismissed the said revision application and has not interfered with the

judgment and order passed by the First Appellate Court, however, has

granted the time to the pre-emptors to deposit the balance consideration

money together with further sum of 10% of that amount by further period

of 30 days.

2.6 Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court, the purchaser – pre-emptee has

preferred the present appeals.

3. Shri Anand, learned counsel appearing on behalf of the appellant

has vehemently submitted that in the facts and circumstances of the

case, the High Court has committed a grave error in dismissing the

revision application and not interfering with the order passed by the First

Appellate Court allowing the pre-emption application.

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3.1 It is vehemently submitted by learned counsel appearing on behalf

of the appellant that as such there was a non-compliance of the

mandatory requirement of the deposit of the entire sale consideration

with a further sum of 10% of the sale consideration as required under

Section 8 of the Act. It is contended that it is an admitted position that at

the time of submitting the application for pre-emption, the pre-emptors

did not make any full deposit of the sale consideration with further 10%

of the sale consideration alongwith the application for pre-emption.

3.2 It is urged that before any application for pre-emption is considered

and further enquiry is conducted as required under Section 9 of the Act,

deposit of the entire sale consideration with 10% more of the sale

consideration is a condition precedent. That unless and until the said

condition is satisfied and/or fulfilled the pre-emption application shall not

be maintainable at all; that only thereafter the further enquiry as

contemplated under Section 9 of the Act, 1955 shall have to be

conducted. That in the present case, there is non-compliance of the

statutory mandatory requirement as per Section 8 of the Act, 1955.

Therefore, the pre-emption application was liable to be rejected.

3.3 Learned counsel appearing on behalf of the appellant has heavily

relied upon the decision of this Court in the case of Barasat Eye

Hospital and Ors. Vs. Kaustabh Mondal, (2019) 19 SCC 767 (paras

23 to 33).

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3.4 Making the above submissions and relying upon the above

decision, it is prayed to allow the present appeals.

4. Present appeals are opposed by Shri Mainak Bose, learned Senior

Advocate appearing on behalf of the contesting respondents. It is

vehemently submitted that as such the learned Trial Court dismissed the

pre-emption application as not maintainable on the ground that since the

vendors of the pre-emptee have transferred their entire share in the suit

property, the application for pre-emption under Section 8 of the Act, 1955

would not be maintainable. It is submitted that however, in view of the

binding decision of the High Court in the case of Sk. Sajhan Ali & Ors.

Vs. Sk. Saber Ali & Anr. reported in 2016 (1) W.B.L.R (Cal) 133 by

which it has been held that even when the entire share of a co-sharer in

the plot of a land is transferred to any person other than a raiyat in the

said plot of land, the application for pre-emption under Section 8 of the

Act, 1955 would be maintainable. It is therefore submitted that the First

Appellate Court rightly set aside the order passed by the learned Trial

Court and allowed the pre-emption application, which is rightly not

interfered with by the High Court.

4.1 It is submitted that whether an application under Section 8 would

be maintainable when a co-sharer of a plot of land transfers his entire

share to any person other than a raiyat in the said plot of land, is

answered in the affirmative by the Larger Bench of the High Court in the

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case of Naymul Haque and Ors. Vs. Allauddin Sk. and Ors. reported

in 2019(1)CLJ(CAL)488.

4.2 Now, so far as the submission /contention on behalf of the

appellant that as the pre-emptors did not deposit the entire sale

consideration with 10% higher than the sale consideration and therefore,

the pe-emption application was not maintainable is concerned, it is

vehemently submitted that as such the said contention was not raised

either before the Courts below and/or even before the High Court, and it

has been raised for the first time before this Court.

4.3 It is further submitted that alongwith the pre-emption application,

the pre-emptors did not deposit the entire sale consideration with 10%

additional sale consideration as the pre-emptors bonafide believed that

the sale consideration mentioned in the sale deed was on a higher side.

It is submitted that thereafter the entire sale consideration with additional

10% has been deposited by the pre-emptors pursuant to the order

passed by the High Court. Therefore, even the condition mentioned in

Section 8 has now been complied with; therefore, the contention raised

now regarding non-deposit of the entire sale consideration with 10%

additional sale consideration shall no longer be available to the

appellant.

4.4 Making the above submissions, it is prayed to dismiss the present

appeals.

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5. We have heard the learned counsel for the respective parties at

length.

6. At this outset, it is required to be noted that pre-emptors submitted

the application before the learned Trial Court under Section 5 of the Act,

1955, in respect of the share sold by their sisters. Therefore, the

contesting respondents herein – the original pre-emptors sought to

exercise their right as pre-emptors under the provisions of the Act, 1955.

The right of the pre-emption has been elaborately dealt with and

considered by a Four Judge Bench of this Court in the case of Bishan

Singh Vs. Khazan Singh, AIR 1958 SC 838, wherein at paragraph 11,

it is observed and held as under: -

“11. … (1) The right of pre-emption is not a right to the

thing sold but a right to the offer of a thing about to be

sold. This right is called the primary or inherent right. (2)

The pre-emptor has a secondary right or a remedial right

to follow the thing sold. (3) It is a right of substitution but

not of re-purchase i.e. the pre-emptor takes the entire

bargain and steps into the shoes of the original vendee.

(4) It is a right to acquire the whole of the property sold

and not a share of the property sold. (5) Preference being

the essence of the right, the plaintiff must have a superior

right to that of the vendee or the person substituted in his

place. (6) The right being a very weak right, it can be

defeated by all legitimate methods, such as the vendee

allowing the claimant of a superior or equal right being

substituted in his place.”

6.1 Thus, as observed and held by this Court in the aforesaid

judgment, the right of pre-emption is “a very weak right”. That being the

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character of the right, any provision to enforce such a right must, thus,

be strictly construed. [Barasat Eye Hospital and Ors. (supra)]

6.2 The submission/contention on behalf of the pre-emptee that, as in

the present case, alongwith the pre-emption application, the pre-emptors

did not deposit the entire sale consideration with 10% additional sale

consideration, and therefore their pre-emption application was not

required to be further considered and no further enquiry as contemplated

under Section 9 of the Act, 1955 would be maintainable is concerned,

identical question came to be considered by this Court in the case of

Barasat Eye Hospital and Ors. (supra) wherein at paragraphs 23 to

33, it is observed and held as under: -

“23. The historical perspective of this right was set forth

by the Constitution Bench of this Court, as far back as in

1962, in Bhau Ram case [Bhau Ram v. Baij Nath Singh,

AIR 1962 SC 1476]. The judgment in Bishan Singh

case [Bishan Singh v. Khazan Singh, AIR 1958 SC 838]

preceded the same, where different views, expressed in

respect of this law of pre-emption, have been set out, and

thereafter the position has been summarised. There is no

purpose in repeating the same, but, suffice to say that the

remedial action in respect of the right of pre-emption is a

secondary right, and that too in the context of the “right

being a very weak right”. It is in this context that it was

observed that such a right can be defeated by all

legitimate methods, such as a vendee allowing the

claimant of a superior or equal right to be substituted in its

place. This is not a right where equitable considerations

would gain ground. In fact, the effect of the right to preemption is that a private contract inter se the parties and

that too, in respect of land, is sought to be interfered with,

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and substituted by a purchaser who fortuitously has land

in the vicinity to the land being sold. It is not a case of a

co-sharer, which would rest on a different ground.

24. The second aspect of importance is that given the

aforesaid position, even the time period for making the

deposit, under Section 8(1) of the said Act, has been held

to be sacrosanct, in view of the judgment of this Court

in Gopal Sardar case [Gopal Sardar v. Karuna Sardar,

(2004) 4 SCC 252]. The very provision of Section 8(1) of

the said Act came up for consideration and, as held in that

case, if the time period itself cannot be extended and if

Section 5 of the Limitation Act would not apply, while

interpreting Section 8 of the said Act, then the

requirement of deposit of the amount along with the

application, within the time stipulated is sacrosanct. The

amount to be deposited is not any amount, as that would

give a wide discretion to the pre-emptor, and any preemptor not able to pay the full amount, would always be

able to say that, in his belief, the consideration was much

lesser than what had been set out. If we read the

judgment in Gopal Sardar case [Gopal Sardar v. Karuna

Sardar, (2004) 4 SCC 252], in its true enunciation and

spirit, there is sanctity attached to both, the amount and

the time-frame. There cannot be sanctity to the timeframe, incapable of extension even by the Limitation Act,

and yet, there be no sanctity to the amount.

25. In the context of the Bihar Land Reforms (Fixation of

Ceiling Area and Acquisition of Surplus Land) Act, 1961,

the recent view of this Court, in the context of the relevant

provision (now repealed [ Vide Section 2 of the Bihar

Land Reforms (Fixation of Ceiling Area and Acquisition of

Surplus Land) (Amendment) Act, 2019.]), itself puts a

precondition for the exercise of the right of pre-emption,

by requiring the deposit of the full stated purchase money

and 10% of the purchase amount. In our view, it makes

no difference that the proviso in Section 16(3) of that Act

states that “… no such application shall be entertained

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…”, in the context of filing of applications, without the

deposit of the full amount. We may say so because, if we

turn to Section 8(1) of the said Act, the right of preemption is activated “on deposit of the consideration

money together with the further sum of 10% of that

amount”. Thus, unless such a deposit is made, the right of

a pre-emptor is not even triggered off. The provisions of

Section 8 are explicit and clear in their terms.

26. Now turning to Section 9 of the said Act, from which,

apparently, some judgments of the Calcutta High Court

have sought to derive a conclusion that an inquiry into the

stated consideration is envisaged. However, the

commencement of sub-section (1) of Section 9 is with “on

the deposit mentioned in sub-section (1) of Section 8

being made…” Thus, for anything further to happen under

Section 9 of the said Act, the deposit as envisaged under

Section 8 of the said Act has to be made. It is only then

that the remaining portion of Section 9 of the said Act

would come into play.

27. The question now is as to what would be the nature of

inquiry which has been envisaged to be carried out by the

Munsif. If Section 9, as it reads, is perused, then first, the

amount as mentioned in the sale transaction is to be

deposited, as per sub-section (1) of Section 8 of the said

Act. Once that amount is deposited, the next stage is for

the Munsif to give notice of the application to the

transferee. The transferee thereafter, when enters

appearance within the time specified, can prove the

consideration money paid for the transfer “and other

sums”. Such other sums, if any, are as “properly paid by

him in respect of the land including any sum paid for

annulling encumbrances created prior to the day of

transfer, and rent or revenue, cesses or taxes for any

period”. The inquiry, thus envisaged, is in respect of the

amount sought to be claimed over and above the stated

sale consideration in the document of sale because, in

that eventuality further sums would have to be called for,

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from the pre-emptor. In that context, the additional

amount would have to be deposited. Even in the event

that a pre-emptor raises doubts regarding the

consideration amount, enquiry into the said aspect can be

done only upon payment of the full amount, along with the

application. In this aspect, the phrase “the remainder, if

any, being refunded to the applicant” would include to

mean the repayment of the initial deposit made along with

the application, if considered to be excess. To give any

other connotation to these sections would make both, the

latter part of Section 8 of the said Act and the inception

part of Section 9 of the said Act, otiose. We do not think

such an interpretation can be countenanced.

28. In our view, when the inquiry is being made by the

Munsif, whether in respect of the stated consideration, or

in respect of any additional amounts which may be

payable, the pre-requisite of deposit of the amount of the

stated consideration under Section 8(1) of the said Act

would be required to be fulfilled. The phraseology “the

remainder, if any, being refunded to the applicant” would

have to be understood in that context. The word

“remainder” is in reference to any amount which, on

inquiry about the stated consideration, may be found to

have been deposited in excess, but it cannot be left at the

own whim of the applicant to deposit any amount, which

is deemed proper, but the full amount has to be

deposited, and if found in excess on inquiry, be refunded

to the applicant.

29. We are, thus, firmly of the view that the pre-requisite

to even endeavour to exercise this weak right is the

deposit of the amount of sale consideration and the 10%

levy on that consideration, as otherwise, Section 8(1) of

the said Act will not be triggered off, apart from making

even the beginning of Section 9(1) of the said Act otiose.

30. We are not inclined to construe the aforesaid

provisions otherwise only on the ground that there are no

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so-called “penal provisions” included. The provisions of

Sections 8 and 9 of the said Act must be read as they are.

In fact, it is a settled rule of construction that legislative

provisions should be read in their plain grammatical

connotation, and only in the case of conflicts between

different provisions would an endeavour have to be made

to read them in a manner that they co-exist and no part of

the rule is made superfluous. [British India General

Insurance Co. Ltd. v. Itbar Singh, AIR 1959 SC 1331] The

interpretation, as we have adopted, would show that

really speaking, no part of either Section 8, or Section 9 of

the said Act is made otiose. Even if an inquiry takes place

in the aspect of stated consideration, on a plea of some

fraud or likewise, and if such a finding is reached, the

amount can always be directed to be refunded, if

deposited in excess. However, it cannot be said that a

discretion can be left to the pre-emptor to deposit

whatever amount, in his opinion, is the appropriate

consideration, in order to exercise a right of pre-emption.

The full amount has to be deposited.

31. We may also note that, as a matter of fact, the preemptor in the present case i.e. the respondent has not

filed any material to substantiate even the plea on the

basis of which, even if an inquiry was held, could a

conclusion be reached that the stated consideration is not

the market value of the land.

32. We also believe that to give such a discretion to the

pre-emptor, without deposit of the full consideration,

would give rise to speculative litigation, where the preemptor, by depositing smaller amounts, can drag on the

issue of the vendee exercising rights in pursuance of the

valid sale deed executed. In the present case, there is a

sale deed executed and registered, setting out the

consideration.

33. We are of the view that the impugned order and the

view adopted would make a weak right into a “speculative

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strong right”, something which has neither historically, nor

in judicial interpretation been envisaged.”

6.3 Therefore, deposit of the entire sale consideration with additional

10% of the sale consideration alongwith the 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 present case, admittedly, the pre-emptors had not deposited the

entire sale consideration with additional 10% of the sale consideration

alongwith the pre-emption application. The aforesaid aspects have not

been considered either by the First Appellate Court or even by the High

Court in this case.

7. Now, so far as the submission on behalf of the pre-emptors that

they bonafidely believed that the sale consideration mentioned in the

sale deed is in favour of the vendee, who is an outsider (outside the

family) was higher than the actual sale consideration and therefore, they

did not deposit the entire sale consideration with additional 10% of the

sale consideration alongwith the pre-emption application is concerned, it

is to be noted that the aforesaid cannot be a ground not to comply with

the condition of deposit as required under Section 8 of the Act, 1955. At

the most, such a dispute can be the subject matter of an enquiry

provided under Section 9 of the Act. As observed hereinabove, the

enquiry under Section 9 with respect to the sale consideration in the sale

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deed would be only after the condition of deposit of entire sale

consideration with additional 10% as provided under Section 8 of the Act

has been complied with.

8. Now, so far as the submission on behalf of the pre-emptors that

the contention of non-deposit of the entire sale consideration with

additional 10% of the sale consideration by the pre-emptors was not

raised before the Courts below and has been raised for the first time

before this Court, and therefore the same be not considered/permitted to

be raised now, is concerned, it is to be noted that the said contention

would go to the root of the matter on maintainability of the pre-emption

application as without complying with the statutory requirements as

mentioned under Section 8 of the Act, 1955, the same is not

maintainable. It is an admitted position that the pre-emptors had not

deposited the entire sale consideration with additional 10% of the sale

consideration along with the pre-emption application as required under

Section 8 of the Act in the instant case.

In view of the aforesaid admitted position, we have considered the

submission on behalf of the appellant on non-fulfillment of the condition

mentioned in Section 8 of the Act.

9. At this stage, it is required to be noted that even the High Court in

the impugned judgment and order has permitted the pre-emptors to

deposit the balance sale consideration. However, faced with the

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decision of this Court in the case of Barasat Eye Hospital and Ors.

(supra) and in light of the observations made by us hereinabove that

alongwith the 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 as per Section 9 of the Act, 1955 and

therefore, unless and until the same is complied with, the pre-emption

application would not be maintainable, the High Court is not justified in

permitting the pre-emptors to now deposit the balance sale consideration

with additional 10% while deciding the revision application. Such a

direction/permission/liberty would go against the intent of Section 8 of

the Act, 1955.

9. In view of the above and for the reasons stated above, present

appeals succeed. The impugned judgments and orders passed by the

High Court and that of the First Appellate Court are hereby quashed and

set aside. Consequently, the pre-emption application submitted by the

original pre-emptors – respondent Nos. 1 to 3 herein stands dismissed.

Respondent Nos. 1 to 3 – original pre-emptors are permitted to withdraw

the amount, which they might have deposited either alongwith the preemption application and/or any subsequent deposit pursuant to the

orders passed by the High Court.

Present appeals are allowed accordingly. However, in the facts

and circumstances of the case, there shall be no order as to costs.

Pending application(s), if any also stands disposed of.

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………………………………….J.

 [M.R. SHAH]

NEW DELHI; ………………………………….J.

May 05, 2022. [B.V. NAGARATHNA]

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