Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. We would like to emphasise an important aspect which emerges from the aforesaid that, apart from the elucidation of the legal position in this behalf, right is “a very weak right.” That being the character of the right, any provision to enforce such a right must, thus, be strictly construed.
13. An interesting aspect which supports the aforesaid view, albeit, in the context of the period of limitation with respect to the exercise of the pre-emption right, has been elucidated by this Court in Gopal Sardar v. Karuna Sardar8. The discussion proceeds on the basis of the earlier judicial pronouncements and a conclusion was reached that Section 5 of the Limitation Act, 1963 cannot be pressed into service in aid of a belated application made under Section 8 of the said Act, seeking condonation of delay. The right of pre-emption under Section 8 of the said Act was observed to be a statutory right, besides being a weak one, and thus, had to be exercised strictly in terms of the said Section with no place for consideration of equity.
14. In a comparatively recent decision, in Kedar Mishra v. State of Bihar9, a three Judge Bench had an occasion to deal with the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. We may notice that the right of pre-emption contained in 8 (2004) 4 SCC 252 9 (2016) 7 SCC 478 Section 16(3) has since been repealed. The relevant provision reads as under: “16 – Restriction on future acquisition by transfer etc. (3) (i) When any transfer of land is made after the commencement of this Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document of the transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed: Provided that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten percent thereof is deposited in the prescribed manner within the said period.” The object of the aforesaid sub-section was observed to be to secure consolidation, by giving a right of re-conveyance to a co-sharer or raiyat to an adjoining area, to facilitate the use of land in a more advantageous manner and to prevent fragmentation. It was categorically observed that “…In terms of Section 16(3)(i), no pre-emption application shall be entertained by the Collector unless the purchase money together with a sum equal to 10% thereof is deposited by the person claiming right of pre-emption in the prescribed manner within the said period.”10
15. We are conscious of the fact that the proviso begins with a negative connotation of “no such application shall be entertained”, but yet the observations are relevant and germane. Rival Contentions:
16. Learned counsel for the appellants sought to rely on the elucidation of the right of pre-emption, as set out in the Bishan Singh & Ors.11 case, to contend that the right being defined as a “very weak right”, the provisions of the Section should be read as they are. Section 10 Kedar Mishra v. State of Bihar (supra) 11 supra BARASAT EYE HOSPITAL & ORS. v. KAUSTABH MONDAL [SANJAY KISHAN KAUL, J.] 8(1) of the said Act prescribes that the right has to be exercised “on deposit of the consideration money together with further sum of 10% of that amount:…” Thus, the trigger for the very right has to be the full stated consideration plus (+) 10% of the consideration amount. The question of recourse to Section 9, it was thus contended, would not arise till the amount was so deposited, and within the given time. Secondly, it was contended that Section 9 of the said Act, as it reads, could not be said to contemplate an inquiry into the amount of consideration set out in the sale deed, but the inquiry was confined to any further amounts, if any, claimed by the vendee. In substance, the plea was that the Sec- tions should be given their plain meaning.
17. On the other hand, learned counsel for the respondent con- tended that if unrealistic or arbitrary considerations are shown in the sale deed, they cannot bind the pre-emptor as that would amount to perpetuating a fraud. His contention was that on deposit of what the pre-emptor believes to be the appropriate consideration, an application could be filed under Section 8(1) of the said Act, and thereafter an inquiry in that behalf would proceed under Section 9 of the said Act; otherwise, there would be no meaning to the power conferred on the Munsif to make an inquiry, as he considers necessary, and that portion would be otiose. This is as against the plea of the appellants, that to construe so, would amount to making the latter part of Section 8(1) otiose as discussed aforesaid, and also make nugatory, the first sentence of Section 9(1), which begins with “on the deposit mentioned in sub-section (1) of Section 8”
18. Learned counsel for the respondent sought to refer to the judgments of the Calcutta High Court, in the Sahid Ali case12, Jyotish Chandra Sardar v. Hira Lal Sardar13, as also to two other cases, in Amitava Shit v. Bablu Kundu14 and Smt. Aparna Maity v. Smt. Purabi Das15.
19. If one may say so, the latter two are really in the nature of orders, not elucidating any law, other than relying on the principles set out in the Sahid Ali16 case (a Division Bench view, as against the Single 12 (supra) 13 ILR 1971 (1) Calcutta 213 14 2014(1) CHN (Cal) 744 15 C.O. No.3859/2015 AGM 2016 decided on 19th December, 2016 16.Supra Judge Bench view in the latter two cases). The Sahid Ali17 case, in turn, has relied upon the judgment in the Jyotish Chandra Sardar18 case.
20. The common thread which goes through all these judgments is that an inquiry into the stated consideration was envisaged under Section 9 of the said Act, on a conjoint reading of Sections 8 & 9 of the said Act. It may be noticed that the Jyotish Chandra Sardar19 case sets out a factual matrix where the mechanism for deposit of the amount was not enforced and, thus, despite the endeavour of the pre-emptor to deposit the amount, such amount could not be deposited. An important aspect examined, while distinguishing the views taken in respect of the Bengal Tenancy Act, 1885 and of the West Bengal Non-Agricultural Tenancy Act, 1949, was that those enactments provided for “penal consequences” and, thus, construction of those provisions would have to be different, as compared to the said Act. Discussion:
21. We have examined the rival contentions of the parties and considered it appropriate to set forth the history of the right of pre-emption, as it may possibly have larger ramifications, especially when we are informed that there are other cases pending consideration before the Calcutta High Court.
22. The historical perspective of this right was set forth by the Constitution Bench of this Court, as far back as in 1962, in the Bhau Ram20 case. The judgment in the Bishan Singh & Ors.21 case 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 summarized. There is no purpose in repeating the same, but, suf- fice 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 pre-emption is that a private contract inter se 17 supra 18 supra 19 supra 20 supra 21 supra BARASAT EYE HOSPITAL & ORS. v. KAUSTABH MONDAL [SANJAY KISHAN KAUL, J.] the parties and that too, in respect of land, is sought to be interfered with, 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.
23. 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 the Gopal Sardar22 case. 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 Limi- tation 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 pre-emptor 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 the Gopal Sardar23 case, in its true enunciation and spirit, there is sanctity attached to both, the amount and the time frame. There cannot be sanctity to the time frame, incapable of extension even by the Limitation Act, and yet, there be no sanctity to the amount.
24. 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 repealed24), itself puts a pre-condition 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…”, 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 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. 23 supra 24 Vide Section 2 of The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 2019
25. 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.
26. 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 there- after, 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, 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.
27. 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 BARASAT EYE HOSPITAL & ORS. v. KAUSTABH MONDAL [SANJAY KISHAN KAUL, J.] 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.
28. 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.
29. 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 & 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.25 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.
30. 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. 25 British India General Insurance Co. Ltd. v. Captain Itbar Singh, AIR 1959 SC 1331
31. We also believe that to give such a discretion to the pre-emp- tor, without deposit of the full consideration, would give rise to specula- tive 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.
32. We are of the view that the impugned order and the view adopted would make a weak right into a ‘speculative strong right’, some- thing which has neither historically, nor in judicial interpretation been envisaged.
33. 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.26
34. 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 exer- cise 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 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.
35. We may add here that it may not be appropriate to envisage a situation where a person not succeeding in the right of pre-emption is deprived of the amount deposited. The vendee cannot appropriate this amount. The State should not be permitted to appropriate this amount. Then, the only sequitur would be that the amount should be refunded back to the pre-emptor. 26Gopal Sardar v. Karuna Sardar (supra) BARASAT EYE HOSPITAL & ORS. v. KAUSTABH MONDAL [SANJAY KISHAN KAUL, J.]
36. The aforesaid being the position, the respondent is entitled to the refund of the amount deposited by him, together with interest, if any, earned on the same, in case it has been kept in an interest bearing deposit.
37. The appeal is accordingly allowed in the aforesaid terms, leaving the parties to bear their own costs.
38. We hope that our view should put the controversy in respect of this “weak right” of pre-emption to rest. Nidhi Jain Appeal allowed.