Calcutta High Court (Appellete Side)
Partha Pratim Gan vs Sumangal Chandra on 17 November, 2025
Author: Shampa Sarkar
Bench: Shampa Sarkar
17.11.2025
Court No.6
D/L No.9
S. Gayen/
C. Poddar
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
CO 3869 of 2025
Partha Pratim Gan
Versus
Sumangal Chandra
Mr. Kingsuk MOndal
Mr. Partha Sarathi Mondal
Mr. Chiranjit Saha
...for the Petitioner
1. This is an application challenging the order dated
September 17, 2025, passed by the learned Additional
District Judge, Fast Track Court, Ranaghat, Nadia in
Misc. Appeal No. 8of 2022. The Miscellaneous Appeal
arose out of a final order dated June 8 of 2022 passed
in Misc. (Preemption) No. 8 of 2018 by the learned Civil
Judge (Junior Division), 2nd Court, Ranaghat, Nadia.
By the order impugned, the learned Appellate Court
allowed the appeal. The learned appellate court found
that the petitioner,respondent in the appeal, had
deposited Rs. 44,000/- when the application for
preemption was filed and the remaining amount with
10% of the value set forth was deposited after the
application for preemption was allowed by the order of
the learned Trial Judge.
2. Applying the ratio in Barasat Eye Hospital & Ors. vs.
Kaustabh Mondal reported in (2019) 19 SCC 767,
the appeal was allowed and the judgment allowing the
2
preemption passed by the learned Trial Judge was set
aside. The learned Appellate Court was also of the view
that the learned Trial Judge had wrongly given an
opportunity to the petitioner to deposit the additional
amount. On July 4, 2022, the petitioner had deposited
the remaining consideration amount, although the
application for preemption was filed on February 27,
2018.
3. The learned Trial Judge, upon considering the decision
in Barasat Eye Hospital (supra) was of the view that
the petitioner had not satisfied the ingredients of
Section 8 of the West Bengal Land Reforms Act, but
allowed his right of preemption subject to depositing
the consideration money along with 10% of the value
set forth. It was directed by the Trial Judge that, the
payment of remaining consideration along with 10% of
the value set forth totalling to Rs. 2,15,385/-, should
be made within 30 days from the date of the judgment.
The order was passed on June 8, 2022. The petitioner
contends that the payment was made as per the
direction of the learned Trial Judge, and as such, the
appeal was wrongly allowed, inter alia, holding that the
petitioner did not have the right to seek preemption, as
deposit of the consideration money along with 10% of
the value set forth had not been made within the
stipulated period.
4. It appears that a learned Coordinate Bench in CO No.
1104 of 2024, admitted an application for preemption,
3
prima facie, observing that even if the deposit was not
made with the application, but within reasonable time,
the application for preemption should not be outrightly
rejected. This was an interim order is another matter.
However, the order is distinguishable, inasmuch as, if
the deposit of the consideration money along with 10%
of the value set forth is made within the period of
limitation prescribed under the statute but not with the
application, the said deposit is valid in law.
5. In the instant case, the petitioner filed the application
for preemption in 2018 and contested the entire
proceeding before the learned trial judge. The learned
trial judge allowed the application for preemption.
While disposing of the said application, the court
permitted payment within 30 days from the judgment.
6. This power is not vested in the learned trial judge and
the learned appellate court has rightly laid down the
law by following Barasat Eye Hospital (supra). Delay
in deposit could not be condoned by the trial Judge.
7. In the decision of Swajit Sankar Mookherjee vs. Sri
Goutam Ghosh & Ors., passed in C.O. 1705 of 2023,
reported in 2024 (3) ICC 47, this court had discussed
the law relating to preemption and the relevant
paragraphs are quoted below:
"45. Sections 8 and 9 should be read in a way that
they could co-exist and no part would be made
superfluous. It was not a discretion left to the pre-
emptor to put whatever amount in his opinion was
the appropriate consideration. The full amount
had to be deposited along with 10%. If the pre-
4
emptor was allowed to deposit his own value and
take a plea that the consideration money was
inflated, it would amount to transformation of a
weak right to a speculative strong right.
Something, which neither historically nor in
judicial interpretation had been envisaged.
46.In paragraph 34 of the decision in Barasat Eye
Hospital (supra) the Hon‟ble Apex Court also
considered whether an extension of time could be
given and held that if the application for pre-
emption was filed within the period of limitation
with a deficit amount and the balance amount had
also been deposited within the period of limitation,
the situation could have been different. But,
extension of time to deposit the amount beyond
the period stipulated by law, was not permissible
and no extension could be granted. The right of
pre-emption would be triggered off only upon
deposit of the balance consideration, but the
balance consideration could not be allowed to be
deposited beyond the period of limitation. Section
5 of the Limitation Act, was not applicable in a
proceeding under Section 8 of the West Bengal
Land Reforms Act. The court was not left with any
discretion to extend the time to deposit the
consideration amount. Section 149 of the Code of
Civil Procedure would not apply in this case.
Relevant paragraphs of Barasat Eye Hospital
(supra)are quoted below:-
"34. The last question which arises is
whether the respondent can now be granted
time to deposit the balance amount. When
the direction was so passed, in pursuance of
the order of the appellate court, the
respondent still assailed the same. The
requirement of exercising the right within the
stipulated time, in respect of the very
provision has been held to be sacrosanct i.e.
that there can be no extension of time
granted even by recourse to Section 5 of the
Limitation Act. [Gopal Sardar v. Karuna
Sardar, (2004) 4 SCC 252]
35. As we have discussed above, once the
time period to exercise a right is sacrosanct,
then the deposit of the full amount within the
time is also sacrosanct. The two go hand-in-
hand. It is not a case where an application
has been filed within time and the amount is
deficient, but the balance amount has been
deposited within the time meant for the
exercise of the right. We are saying so as such
an eventuality may arise, but in that case, the
right under the application would be triggered
off on deposit of the amount which, in turn,
would be within the time stipulated for
triggering the right. That not having
5
happened, we are of the view that there
cannot be any extension of time granted to
the respondent now, to exercise such a right.
This is, of course, apart from the fact that
this speculative exercise on behalf of the
respondent has continued for the last
fourteen years, by deposit of 50% of the
amount."
47.The reliance on Mahand Ramdas (Supra)is also
misconceived. No event envisaged as special
circumstances was pleaded to justify the short
deposit. According to the Hon‟ble Apex Court, the
courts did not have any power to enlarge the time
in allowing deposit of the balance consideration as
the same would be contrary to the mandatory
requirement of the statute under Section 8,
otherwise the opening lines of Section 9 would be
rendered otiose. The relevant paragraphs in
Barasat Eye Hospital (supra) are quoted below:-
"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
6
of sale because, in that eventuality further
sums would have to be called for, 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 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
7
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 pre-emptor 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 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
the present case, there is a sale deed
executed and registered, setting out the
consideration."
8. In this context, the question of limitation would arise in
the present fact scenario. The Hon‟ble Apex Court in
Barasat Eye Hospital (Supra), had laid down that the
right of preemption under Section 8(1) of the West
Bengal Land Reforms Act would not be triggered off
until the entire consideration money along with 10%
thereof was deposited. Here the trial court allowed the
short deposit to be made after the trial had concluded
8
and the judgment was passed, i.e., after 4 years from
the filing of the application. The right of preemption of
the petitioner had not triggered off until July 4, 2022
when the deposit was made as per the direction of the
trial court. Whereas, such application ought to have
been filed by the petitioner who claims to be a co-
sharer within three months from service of notice given
under Sub-Section (5) of Section 5 or within four
months from the date of such transfer as he also
claims to be the adjoining owner or if he was a non-
notified co-sharer, within a year from knowledge. By
the time the petitioner deposited the amount, his
application for preemption had already become time
barred.
9. The Hon‟ble Apex Court has held that courts could not
permit belated deposit of the consideration money. The
learned trial judge did not decide the question of
limitation and maintainability of the preemption
application, but noticed the law laid down in Barasat
Eye Hospitl (supra). The learned appellant court
rightly pointed out the defects in the decision and held
that the right of preemption was not available to the
petitioner in view of the delay in deposit. Section 5 of
the Limitation Act, is not applicable to condone the
delay in depositing the consideration money with 10%
of the value set forth.
10. Abdul Matin Mallick vs. Subrata Bhattacharjee
(Banerjee) reported in AIR 2022 SC 2175, was a
9
decision of the Hon‟ble Apex Court in which the issue
of short deposit by a non-notified co-sharer, and
objection to the inflated amount of consideration
money quoted in the sale deed were under
consideration. The Hon‟ble Apex Court relied on the
decision of Barasat Eye Hospital (Supra) and held as
hereunder:
"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 1955 Act")
belonged to one Khudiram Bhattacharya, who
died on 17-4-2001 leaving behind him, surviving
his widow Purnima Bhattacharya who also died
on 14-8-2001 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 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 sub-section (5) of Section 5 of the
1955 Act. The said application under Section 8 of
the 1955 Act was registered as Misc. Pre-emption
Case No. 8 of 2012 before the learned trial court.
***
6.1. Thus, as observed and held by this Court in the aforesaid judgment in Bishan Singh [Bishan Singh v. Khazan Singh, AIR 1958 SC 838] , the right of pre-emption is "a very weak right". That being the character of the right, any provision to enforce such a right must, thus, be strictly construed. [Barasat Eye Hospital [Barasat Eye Hospital v. Kaustabh Mondal, (2019) 19 SCC 767 : (2020) 4 SCC (Civ) 810] ] 10 6.2. The submission/contention on behalf of the pre-emptee that, as in the present case, along with 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 1955 Act would be maintainable is concerned, identical question came to be considered by this Court in Barasat Eye Hospital [Barasat Eye Hospital v. Kaustabh Mondal, (2019) 19 SCC 767 : (2020) 4 SCC (Civ) 810] wherein at paras 23 to 33, it is observed and held as under : (SCC pp. 779-81) 6.3. Therefore, deposit of the entire sale consideration with additional 10% of the sale consideration along with the pre-emption application is a statutory and mandatory requirement and it is a precondition 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 along with 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 bona fide 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 along with 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 1955 Act. 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 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 11 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 1955 Act, 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- fulfilment 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 decision of this Court in Barasat Eye Hospital [Barasat Eye Hospital v. Kaustabh Mondal, (2019) 19 SCC 767 : (2020) 4 SCC (Civ) 810] and in light of the observations made by us hereinabove that along with 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 1955 Act 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 1955 Act.
10. In view of the above and for the reasons stated above, the present appeals succeed. The impugned judgments and orders passed by the High Court [Abdul Matin Mallick v. Subrata Bhattacharjee (Banerjee), 2019 SCC OnLine Cal 3853] , [Subrata Bhattacharjee (Banerjee) v. Abdul Matin Mallick, 2021 SCC OnLine Cal 3548] and that of the first appellate court are hereby quashed and set aside. Consequently, the pre-emption application submitted by the original pre-emptors -- Respondents 1 to 3 herein stands dismissed. Respondents 1 to 3 -- original pre-emptors are permitted to withdraw the amount, which they might have deposited either along with the pre- emption application and/or any subsequent 12 deposit pursuant to the orders passed by the High Court."
11. In the case of Chitta Ranjan Mishra Vs. Subrata Majhi & Ors. passed in CO 451 of 2023 this court had discussed the scope and effect of the decision in Barasat Eye Hospital (Supra). It was held to be a law -
declared having retrospective effect. The relevant paragraphs are quoted below:
"Upon a meaningful reading of the decision, it is evident that the object of the said decision was to put to rest the controversy in respect of exercise of such a weak right, especially in the matter of short deposits. The Apex court took note of the fact that the decision would have a far larger ramification, as many cases were pending before this High Court on this point. Secondly, the law was in existence since 1955, but the interpretation of the same in respect of the requirement to deposit the consideration amount was finally put to rest in the decision of Barasat Eye Hospital (supra). It was a law declared on the point and will have a retrospective effect. The Hon‟ble Apex Court was of the view that if short deposits were allowed, a weak right would give rise to speculative suits. In the decision of Abdul Matin (supra), a similar view was taken by the Hon‟ble Apex Court upon relying on the decision in Barasat Eye Hospital (supra). The Hon‟ble Apex Court was dealing with Misc. Preemption Case No.8 of 2012 which had been filed before the trial court. The Misc. preemption case was dismissed by the trial court. Misc. Appeal No.7 of 2014 was preferred. The Misc. Appeal was allowed and the order of the learned trial court was set aside. The application for pre-emption was allowed on the ground of co-sharership. The first appellate court allowed deposit of the balance consideration money. Aggrieved, the pre-emptee approached the High Court. The High Court dismissed the revisional application by upholding the order of the first appellate court and also upholding the decision of the first appellate to allow a belated deposit of the balance consideration money. Such order was challenged in Civil Appeal No.3500 of 2022. In such a pending proceeding, the decision of Barasat Eye Hospital (supra) was referred to 13 and it was held that the learned lower appellate court was not justified in permitting the preemptor to deposit the balance consideration money with additional 10% and the High Court was also not justified in upholding such decision.
Thus the Apex Court applied the decision of Barasat Eye Hospital (supra) even in a pending preemption case of 2012, and set aside the order of the High Court passed in C.O.4266 of 2016. The decision of Barasat Eye Hospital (supra) was rendered in 2019.
In the decision of Assistant Commissioner, Income Tax Rajkot v. Saurashtra Kutch Stock Exchange Ltd., reported (2008) 14 SCC 171, the Hon‟ble Apex Court held as follows:-
„35. In our judgment, it is also well settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the court to pronounce a "new rule" but to maintain and expound the "old one". In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood.‟ In the decision of P.V. George and Others v. State of Kerala and others, reported in (2007) 3 SCC 557, the Hon‟ble Apex Court held that the law declared by a court will have retrospective effect if not otherwise stated to be so specifically.
The decision of the Hon‟ble Apex Court was a law declared on the point that deposit of the full amount stated as the sale consideration together with further deposit of 10% was a precondition to filing an application under Section 8(1) of the West Bengal Land and Land Reforms Act, 1995. The conflicting legal position was clarified, interpreted, rectified and altered. The decision has a retrospective effect and will apply to pending proceedings."
1412. In the present case, the learned trial judge, although, noted the decision of Barasat Eye Hospital (Supra) and recognized that the application for preemption was not filed along with the consideration money mentioned in the deed of sale along with 10% of the value set forth, illegally permitted the petitioner to deposit the same after conclusion of trial and within 30 days from the date of delivery of judgment. Such order was totally contrary to law and the decisions laid down by the Hon‟ble Apex Court and this court.
13. The learned appellate court rightly appreciated the law and allowed the appeal.
14. Under such circumstances, the revisional application fails and is accordingly dismissed.
15. As the petitioner has already been permitted by the learned appellate court to withdraw the sum deposited, the petitioner shall approach the trial court.
16. Parties are to act on the server copy of this judgment.
(Shampa Sarkar, J.)