Calcutta High Court (Appellete Side)
Sri Subrata Bhattacharjee (Banerjee) vs Abdul Matin Mallick And Others on 27 July, 2021
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No.1153 of 2021
Sri Subrata Bhattacharjee (Banerjee)
Vs.
Abdul Matin Mallick and others
For the petitioner : Mr. Tanmoy Mukherjee
For the pre-emptee/opposite party no.1 : Mr. Ranjan Kali
Hearing concluded on : 22.07.2021
Judgment on : 27.07.2021
Sabyasachi Bhattacharyya, J:-
1.The short question which has come up for consideration is the present case is, whether the executing acted without jurisdiction in directing a sale deed to be executed in favour of the successful pre-emptors under Section 8 of the West Bengal Land Reforms Act, 1955 (in short, "the 1955 Act"), as a pre-condition of proceeding further with the execution case.
2. The facts of the instant lis are:
The revisionist-petitioner and proforma opposite parties no. 2 and 3 filed a pre-emption application under Sections 8 and 9 of the 1955 Act against the pre-emptee/opposite party no. 1, giving rise to 2 Miscellaneous Case No. 08 of 2012. The said application was dismissed by the trial court.
3. On an appeal, bearing Miscellaneous Appeal No. 07 of 2014, being preferred by the pre-emptors, the Additional District and Sessions Judge, Kalna, by a judgment and order dated September 1, 2016, set aside the order of the trial Judge and allowed the pre-emption application.
4. A co-ordinate Bench of this Court, by an order dated April 17, 2019, disposed of CO. No. 4266 of 2016, which was taken out against the order of the appellate court, and affirmed the appellate courts' order of pre-emption.
5. The present revisionist/petitioner, as one of the successful pre-
emptors put the order into execution, thereby giving rise to Title Execution Case No. 01 of 2019, before the Civil Judge (Junior Division) at Kalna. In the execution case, the petitioner prayed for delivery of possession of the property-in-question to the pre-emptors by issuance of warrant of khas possession. The pre-emptee raised a question of maintainability of the execution application, which issue was being heard over a long period of time due to adjournments and staggered function of courts due to the pandemic situation.
6. Lastly, vide Order No. 48 dated March 8, 2021, the executing court disposed of the execution case along with Miscellaneous Pre-emption Case No. 08 of 2012 by directing the opposite parties in the pre- emption proceeding (pre-emptee and his vendors) to execute a deed in favour of the petitioner "so that the petitioner can proceed with the 3 Execution Case in respect to this order and comply with the order..." of the appellate court.
7. Learned counsel for the petitioner, upon placing reliance on the provisions of Sections 8, 9 and 10 of the 1955 Act, submits that title in the pre-empted property automatically vests on the pre-emptors upon compliance of necessary formalities as stipulated in the said sections. No further transfer deed is required to be executed.
8. Learned counsel for the pre-emptee/opposite party no. 1 contends that as per the scheme of the 1955 Act and recent judgments of the Supreme Court, the entire consideration money had to be deposited, along with statutory interest, at the time of filing the pre-emption application, which time cannot be further extended. Having not done so, the pre-emptors could not claim relief under Sections 8 and 9 of the said Act.
9. Moreover, counsel submits that a special leave petition is already pending against the co-ordinate Bench order affirming the appellate court's order granting pre-emption.
10. Hence, the opposite party no. 1 argues that title could not have vested in the pre-emptors automatically, as envisaged in Sections 8, 9 and 10 of the 1955 Act; as such, no interference with the impugned order is necessary.
11. To decide the question posed in the matter, a brief consideration of the relevant legal provisions is required. Section 8 of the 1955 Act confers the right of pre-emption, while Section 9 lays out the procedure to be followed upon filing of a pre-emption application and 4 the effect of a pre-emption order. As a follow-up, Section 10 of the Act stipulates the consequences of an order of pre-emption and consequent transfer.
12. Section 9 (1) of the 1955 Act envisages the statutory amount deposited by the pre-emptor to be paid to the "transferee" and the excess to be refunded to the pre-emptors. It further proves that the court granting pre-emption shall then "make a further order that the portion or share of the plot of land be "transferred to the applicant"
and, more importantly, "... on such order being made, the portion or share of the plot of land shall vest in the applicant".
13. Sub-section (2) of Section 9 says, "When any person acquires the right, title and interest of the transferee in such plot of land by succession or otherwise, the right, title and interest acquired by him "shall be subject to the right conferred by sub-section (1) of Section 8"
on a pre-emptor.
14. Sub-section (5) of Section 9 reads thus: "The Munsif shall send a copy of his order as modified on appeal, if any under sub-section (6) to the prescribed authority for correction of the record-of-rights".
15. Section 10, clause (a) specifically stipulates that, "On an order under section 9 being made", "the right, title and interest of the raiyat and of the transferee" or any person acquiring right, title and interest of the transferee in such plot of land by succession or otherwise "shall vest in the raiyat whose application for transfer has been allowed...", that is, the successful pre-emptor. Clause (b) of Section 10 makes the 5 successful pre-emptor liable for any revenue accruing from "the date of the order".
16. Thus, the scheme of the 1955 Act does not contemplate the execution of a further transfer deed, as required by decrees of specific performance of contract under the Specific Relief Act, 1963, since the right, title and interest of the transferee/pre-emptee or anyone claiming through the pre-emptee shall automatically vest in the pre- emptor.
17. The limited scope of execution of pre-emption orders under the 1955 Act is, thus, confined to delivery of possession to the pre-emptor, in whose favour title has already vested, and/or implementation of any costs which may have been granted in favour of the pre-emptor.
18. Hence, the concept of execution of a further transfer deed is entirely de hors the scheme of the 1955 Act.
19. Mere filing of a special leave petition against the order of the High Court affirming the pre-emption order does not operate as a stay of the order of pre-emption, which itself vests title in the pre-emptor. Any further deed is superfluous in the context of the 1955 Act, unlike the Specific Relief Act, 1963 Act.
20. The other facet of the argument of opposite party no.1, that it is now settled law that the entire consideration was to be deposited with the pre-emption application, is equally not tenable in law. The order of the first forum merged with those of the appellate court and the High Court and has attained finality. To quote the Supreme Court, even a judgment and decree impugned in appeal at the most "at jeopardy". 6 Despite so, as of date, the order of pre-emption stands and, by operation of Section 9 and 10 of 1955 Act, as discussed above, vests title in the pre-emptors from date of the pre-emption order.
21. It is settled law as well that the executing court, within its limited conspectus (particularly in respect of a pre-emption order under the 1955 Act), cannot go behind the decree or order sought to be executed. All the more so, in view of the title in the pre-empted property having already vested in the pre-emptors upon compliance of the requirements of Section 9 of the 1955 Act by the petitioner, as recorded in the impugned order itself, there is no scope of re-opening the final order of pre-emption and divesting the pre-emptors from title which has been conferred on them by operation of law.
22. Hence, the second limb of the submissions of opposite party no. 1 has been rendered otiose and is of mere academic interest.
23. In such view of the matter, C.O. No. 1153 of 2021 is allowed, thereby setting aside Order No. 48 dated March 8, 2021 passed by the Civil Judge (Junior Division) at Kalna. The execution case filed by the petitioner for implementing the pre-emption order is revived. The executing court shall direct possession to be handed over to the pre- emptors at the earliest and shall pass ancillary orders in aid of such relief, if necessary, and ensure that possession is handed over to the pre-emptors in respect of the property-in-suit positively within August 31, 2021.
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24. The parties as well the court below shall act on the communication of this order by the learned advocates, accompanied by a server copy of this order, without insisting upon prior production of a certified copy.
25. There will be no order as to costs.
26. Urgent certified copies of this order shall be supplied to the parties applying for the same, upon due compliance of all requisite formalities.
( Sabyasachi Bhattacharyya, J. ) LATER After the judgment is passed in open court, learned counsel for the opposite party No. 1 submits that an order of stay of operation of this order be granted. However, since in the opinion of the court, there is no substantial question of law of importance is involved in the matter, such prayer is refused.
( Sabyasachi Bhattacharyya, J. )