Read Judgment: ABDUL MATIN MALLICK Vs.  SUBRATA BHATTACHARJEE AND ORS 

Mansimran Kaur

New Delhi, May 07, 2022: While dismissing an application of pre-emption instituted by the pre-emptors, the Supreme Court has opined that the deposit of the entire sale consideration with additional 10 % of the sale consideration along with the pre-emption application under Section 8 (1) of the West Bengal Reforms Act, 1955 is a statutory and mandatory requirement and it is a pre-requisite before any further enquiry as stated under Section 9 of the Act.

A Division Bench of Justice M.R. Shah and Justice B.V. Nagarthna allowed the present appeals instituted by the appellant- pre- emptee assailing application pursued by the pre- emptors which were allowed by the High Court and the First Appellate Court by observing that   that the 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 pre- requisite before any further enquiry as stated under Section 9 of the Act is held.

Feeling aggrieved by the judgment and the order passed by the High Court of Calcutta whereby the High Court dismissed the said writ petition instituted by the appellant and confirmed the order passed by the First Appellate allowing the application submitted by the respondents, pre emptors. Hence, the present appeal. 

Brief facts of the case were that the High Court of Calcutta allowed the writ petition preferred by the respondents in the present appeal and revived the execution filed by the respondents  for implementing the pre- emption order and further directions were issued to the executing court to hand over the possession  of the property in question to  the pre- emptors. 

Brief facts of the case were 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 belonged to one Khudiram Bhattacharya, who died on April 17, 2001  leaving behind him, surviving his widow Purnima Bhattacharya who also died on August 14, 2001  and three sons namely Subrata, Debabrata and Ratan (the pre-emptors in the instant case and two daughters Kalyani and Alpana, the vendors of the pre-emptee, the appellant. 

 Thereafter 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 .

 Subsequently the sale in favor 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 Act, 1955.

The said application was registered under Section 8 (1) of the Act, 1955. However, the Trial Court dismissed the application for pre- emption and stated that the same was not maintainable 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 was not maintainable. Aggrieved by the same, the pre- emptors preferred the appeal before the First Appellate Court. The Appellate Court allowed the same and set aside the order passed by the Trial Court. The same was assailed by the purchaser, pre- emptee  in the form of present appeals. 

The Counsel for the appellant strenuously contended that the pre- emptors  failed to comply with 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. 

The Court, after hearing the submissions of the rival parties, relied on the decision of this Court in the case of Bishan Singh Vs. Khazan Singh,wherein it was held that  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. 

The Court further dealt with the with the contention raised by the appellant that the in the instant case the pre- emptors along with the pre-emption application did not deposit the entire sale consideration with 10 % additional sale consideration and thus no further enquiry under Section 9 of the Act, 1955 would be maintainable, to decide the same , the Court preferred the decision of this Court in the case of  Barasat Eye Hospital and Ors Vs. Kaustabh Mondal, wherein it was held that  under Section 8(1) of the said Act, the right of pre- emption 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. 

In view of the aforesaid judgment, this Court observed that the 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 pre- requisite before any further enquiry as stated under Section 9 of the Act is held.  It was further observed that the aforesaid proposition was neglected by the First Appellate Court or even by the High Court in the present case. 

Next contention that the Court dealt with  on behalf of the pre-emptors  was that they bonafidely believed that the sale consideration mentioned in the sale deed is in favor 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,  the Court in pursuance if the same  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. 

The next submission that was posed for consideration before this Court submitted on behalf of the  pre-emptors that the contention of non- deposit of the entire sale with 10 %  of the sale consideration by the pre-emptors was not raised before the Courts below and was raised first time before this Court  and therefore the same cannot be raised at the present stage, the Court in view of the same observed that application was not maintainable in the first place as the statutory requirements under Section 8 of the Act, 1955 were not met. 

In light of the above observations, the Court allowed the present appeals. Accordingly, the impugned judgments and orders passed by the High Court and the First Appellate Court were quashed and set aside. 

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