Calcutta High Court (Appellete Side)
Smt. Malina Roy vs Sri Gopal Sengupta And Others on 3 January, 2019
1 S/L. 4.
January 3, 2019.
MNS.
C. O. No. 1211 of 2018 Smt. Malina Roy Vs. Sri Gopal Sengupta and others Mr. Rabi Shankar Chattopadhyay, Mr. Suman Shankar Chattopadhyay, Mr. Soumen Banerjee, Mr. Sayan Chakraborty ...for the petitioner.
Mr. Partha Pratim Roy, Mr. Naba Kumar Paul ...for the opposite party nos. 1 and 2.
The present challenge has been preferred by the preemptee in a proceeding under Section 8 of the West Bengal Land Reforms Act, 1955.
The trial court dismissed the preemption application of the preemptors/opposite party nos. 1 and 2 on the sole ground that the entire consideration amount along with 10% interest was not deposited by the preemptors, as contemplated in Sections 8 and 9 of the said Act of 1955.
The appellate court reversed the said findings and sent the matter on remand to the trial court, directing the trial court to pass a direction on the petitioner to deposit the balance amount within a certain period and thereafter pass necessary order of preemption on the ground of co-sharership.
Learned counsel for the petitioner argues that since the preemptors did not raise any dispute as to the actual consideration being less than the amount shown in the sale 2 deed-in-question, the preemptors' application for preemption ought to have been dismissed for deposit of an amount shorter than that stipulated in law. As such, it is argued, the trial court rightly rejected the said application for preemption on the ground of short deposit.
In this context, learned counsel for the petitioner cites a judgment reported at 2013(3) CHN (CAL) 140 ( Susanta Jadav Vs. Rupchand Dhar), wherein a co-ordinate bench of this Court held, inter alia, that in case a dispute as to the actual consideration amount is raised, the preemptor would be permitted to file an application with a short deposit but cannot claim a decision on the said application filed under Section 8 of the said Act of 1955 on merits without first satisfying about the justiciability of making such a short deposit. In the said judgement, the learned single Judge further held that in absence of any evidence of reliable character being produced by the petitioner to disprove the consideration amount mentioned in the transfer deed-in-question, the trial judge had taken a correct view. Ultimately, the matter was sent back to the trial judge for a reconsideration on the actual consideration paid, upon giving an opportunity to both sides to lead evidence thereon.
Learned counsel for the petitioner cites another judgment, also of a co-ordinate Bench of this Court, reported at 2015(5) CHN (CAL) 664 (Biswanath Dolui Vs. Tinkari Dolui). The learned single Judge held therein that the petitioner himself had applied for appointment of valuation commissioner and the court below had passed an order for appointment of commissioner, who had submitted a report after taking evidence of both sides and the petitioner had not deposit that amount before the end of trial. The learned single Judge further held that the preemptor therein intended to see from which side the 3 wind blows and then to trim his journey towards that end. It was also held that preemption right was a very weak right and it was the duty of the preemptor to comply with the provisions as mentioned in Sections 8 and 9 of the said Act of 1955. Accordingly, it was held that the preemptor was not entitled to any relief as prayed for.
Learned counsel for the petitioner next argues that it was specifically mentioned in paragraph no. 9 of the written objection to the preemption application that the opposite party no. 2 therein had sold his entire lands lying in LR Plot No. 444; as such, the plea of contiguity of the lands of the petitioners to that of the suit land was in no way sustainable. It was further averred that the lands of the plots involved in the case had not been partitioned by metes and bounds.
However, it is submitted, neither of the courts below considered the said question as to whether the preemption application was maintainable in view of the entire share of the vendor having been sold.
The petitioner accordingly argues that the application for preemption was rightly refused by the trial court and the appellate court acted without jurisdiction in remanding the matter again.
Learned counsel for the preemptors/ opposite party nos. 1 and 2, on the other hand, argues that it is the settled position of law that short deposit of consideration amount is merely a technical flaw and was curable prior to the final order of preemption being passed.
In support of the proposition, learned counsel for the preemptors/opposite party nos. 1 and 2 cites a judgment of a co-ordinate Bench of this Court reported at 96 CWN 1121 (Namita Biswas Vs. State) wherein it was held that if the consideration money 4 (together with interest) is not deposited along with an application for preemption filed under Section 8(1) of the said Act of 1955 that can at best be treated to be a procedural defect, which was always curable. It was also held that such procedural defect would not make the substantive application for preemption not maintainable.
Learned counsel for the preemptors/opposite party nos. 1 and 2 further cites a division bench judgment of this Court reported at 90 CWN 809 (Sadhan Ch. Samanta and others Vs. Jaladi Bala Dassi and another), wherein it was held, inter alia, that Section 8 of the said Act of 1955 has not made it imperative to deposit the consideration money and the compensation thereon at the time of making the preemption application or that in default thereof the application would be dismissed. The deposit of the consideration money and the compensation, it was held, need not be necessarily made within four months or three years, as the case may be, from the date of transfer in favour of any person other than a co-sharer in the holding. While coming to such conclusion, the division bench also relied upon a comparison between sub-section (2) of Section 26F of the Bengal Tenancy Act, wherein it was stipulated that a preemption application was to be dismissed unless the applicant made the deposit contemplated in the said statute at the time of filing of the application, with that of Section 8 of the said Act of 1955, where such mandate was absent.
As regards the argument of the petitioner as to the entire share being transferred by the vendor is concerned, learned counsel for the preemptors/opposite party nos. 1 and 2 argues that the said point was never argued at the time of trial on behalf of the present petitioner.
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It is further submitted that the present petitioner (preemptee) did not take out any cross-objection in that regard before the appellate court as well. As such, it is submitted, the present petitioner is precluded from agitating the said point at the present juncture.
A consideration of the judgment cited by the parties indicates that it has been the consistent view of this court that the non deposit of consideration amount along with 10% interest thereof with an application under Section 8 of the said Act of 1955 was at best a procedural defect. The said defect could be cured prior to passing of a final order of preemption.
Even in the judgment of Susanta Jadav (supra), cited by the petitioner, the learned single Judge had remanded the matter to the trial court for assessment of the actual consideration paid. The other judgment cited by the petitioner held that since there was no evidence produced to establish the actual consideration, the application for preemption would not be allowed. However, the question as to whether an opportunity ought to be given to the preemptor in consonance with the provisions of Section 9 of the said Act of 1955, never fell for consideration in the said judgment.
In fact, a perusal of Section 9 of the said Act of 1955 shows that upon a notice being served, the transferee (preemptee) or any person interested may, within the time specified in the notice, prove the actual consideration money paid for the transfer and other sum as mentioned in the said section. Only after the transferee or such other interested person having proved the consideration money, was the Munsif to enter into an enquiry and assess what was the actual consideration amount. Section 9 of the said Act of 1955 mandates that only after such enquiry the Munsif is to make an order that the amount of such consideration money together with other sums as are proved to have 6 been paid by the transferee or the person interested plus ten percent of the consideration money be paid to the transferee or the person interested. A conjoint reading of Sections 8 and 9 of the said Act of 1955 make it amply clear that the deposit as contemplated to accompany an application for preemption need not be put in at the inception of the proceeding, but can be directed by the trial judge to be deposited at any point of time before passing the final order of preemption.
In fact, the argument advanced by the petitioner as to the preemptors having not disputed the consideration amount does not hold good since the preemptors actually disputed the amount of consideration by stating in the preemption application that more consideration passed between the vendor and the preemptee than shown in the deed of transfer.
If the language of Section 9 of the said Act of 1955 is to be taken either literally or in spirit, the onus shifted on the transferee, that is, the preemptee to arrive as to what was the actual consideration amount paid, upon which the trial judge was to conduct an enquiry and thereafter to give an opportunity to the preemptors to deposit such additional amount. The simple mandate in the said section as to an opportunity being given to the preemptors to put in the additional sum justifies any short deposit which might have been made and dilutes the language of Section 8 of the said Act of 1955 which contemplates a deposit of consideration money along with the preemption application.
Moreover, it is seen that neither of the co-ordinate Benches which passed the judgments cited by the petitioner took into consideration the ratio laid down in Namita Biswas (supra) and as such, the proposition laid down in the Namita Biswas, being that short deposit with a preemption application was a procedural defect which was curable, 7 was never touched, let alone overruled, by any subsequent judgment and still holds the field.
In such view of the matter, the trial court acted without jurisdiction in the present case in dismissing the preemption application outright without granting the preemptors an opportunity to put in the balance amount of deposit, as contemplated in Section 9 of the said Act of 1955. Hence, the appellate court was justified and acted within its jurisdiction to remand the matter to the trial court for the purpose of directing the preemptors to put in the deposit-in-question. Since the preemptee did not attempt even after this stage to controvert the amount of consideration shown in the sale deed, even in the teeth of the allegation of the preemptors that an amount in excess of the consideration shown in the deed was paid, the preemptee need not be given a further opportunity to prove the consideration.
As regards the objection that preemption did not lie since the entire share of the vendor had been sold, the said question was never raised by the preemptee in the courts below. There was also no specific pleading to that effect in the preemption application. As such, the petitioner cannot urge such point, which involves a mixed question of fact and law, for the first time before this Court.
In the circumstances aforesaid, C. O. No. 1211 of 2018 is dismissed on contest without any order as to costs.
However, the trial court is requested to adjudicate the preemption case in terms of the direction given by the appellate court in the order impugned herein taking into consideration any amount which may have been deposited by the preemptees in the meantime.
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Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)