Jyotish Chandra Sardar vs Hira Lal Sardar

P.N. Mookerjee and A.N. Chakrabarti, JJ.—There is a common question, involved in these two rules, and that question is whether the Sub-section (1) of Section 8 of the West Bengal Land Reforms Act, 1955, is constitutionally valid insofar as it gives the adjoining owner the right of pre-emption on the ground of contiguity of lands. Apart from this common question of constitutional validity there are some other questions also which are of special relevance to one or other of the two rules. These latter questions will be taken up after the common question has been disposed of.

In both the cases, the raiyats holding lands, adjoining the holdings transferred, applied for pre-emption under Sub-section (1) of Section 8 of the West Bengal Land Reforms Act.

Sub-section (1) of Section 8 of the above Act runs as follows:

If a portion of share of a holding of a raiyat is transferred to any person other than a co-sharer in the holding, any co-sharer in the holding, any co-sharer raiyat of the holding may, within three months of the service- of the notice, given under Sub-section (5) of Section 5, or any raiyat, possessing land adjoining such holding, may, within four months of the date of such transfer, apply to the Revenue Officer, specially empowered by the State Government in this behalf, for transfer of the said portion or share of the holding to him, subject to the limit mentioned in Sub-section (3) of Section 4, on deposit of the consideration money together with a further sum of ten per cent of that amount:

Provided that if a co-sharer raiyat and raiyat possessing land adjoining such holding, both apply for such transfer, the former shall have the prior right to have such portion or share of the holding transferred to him and, in such a case, the deposit made by the latter shall be refunded to him:

Provided further that, as amongst raiyais possessing lands adjoining such holding preference shall be given to the raiyat, having the longest common boundary with the land transferred.

It is contended that the above Sub-section, insofar as it allows pre-emption on the ground of contiguity of lands, is void, as it infringes the fundamental right to hold, acquire and dispose of property guaranteed by Sub-clause (f) of Article 19(1) of the Constitution. In support of this contention of theirs, the learned Advocates appearing for the Petitioners, have referred to the decision "of the Supreme Court in Bhau Ram Vs. B. Baijnath Singh, . In that case, their Lordships had to consider the constitutionality of the provisions regarding preemption as contained in s. ID of the Rewa State Pre emption Act, 1946, Of the Punjab Pre-emption Act (I of 1913), Section 16 and the Berar Land Revenue Code, 1928, chap. XIV. It will not be necessary for -our present purpose to refer to the Punjab Act or the Berar Land Revenue Code.

Section 10 of the Rewa Act was in these terms: Classes of Pre-emptors: Persons of the following classes shall have a right of pre-emption:

(1) Any person, who is a co-sharer or partner in the property, sold and foreclosed.

(2) Any person who owns any immovable property adjoining the property, sold or foreclosed, or, in case of transfer of tenancy rights, the land which is the subject of such rights.

Provided that, among the above Mentioned classes, the first in order will exclude the second and, among persons of the same class, the nearer in relationship to the person whose property is sold or foreclosed will exclude the more remote.

It will be seen that the second clause of the above section allows pre-emption on the ground of vicinage and that it is similar to the second ground under the Sub-section (1) of Section 8 of the West Bengal Land Reforms Act. But the Rewa Act has certain other special features which also require notice. u/s 12 of that Act, the vender has to give notice to the possible pre-emptors of the price at which he desires to sell his property; u/s 3, any of these persons, wanting to pre-empt has to deposit the money within one month of the date of service of the notice and if he fails to do so, he loses his right of pre-emption. Section 15 of the Act, however, provides that, notwithstanding the failure to deposit the money, as required by Section 13, a suit for pre-emption may be instituted by a pre-emptor after the property had already been sold to a stranger on the ground that the price stated in the notice given to him was fixed in good faith. The Court then decides whether the price, stated in the notice, is the proper price, and, if it comes to the conclusion that it is not, it has the power to fix such price as appears to it to be the fair market price of the property sold. This, according to the Supreme Court, amounts to an interference with the vendor and the vendee''s right to sell and purchase at the price agreed upon between them. The Supreme Court held that this was an unreasonable restriction on the right guaranteed under Art, 19(l)(f) of the Constitution.

Apart from the above objectionable features of the Rewa Act, the Supreme Court further pointed out that pre-emption on the ground of vicinage was by itself discriminatory in nature and observed thus:

But the Constitution now prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them under Article 15 and guarantees a right to every citizen to acquire, hold and dispose of property, subject only to restrictions which may be reasonable and in the interests of the general public. Though, therefore, the ostensible-reason for pre-emption may be vicinage, the real reason behind the law was toi prevent a stranger from acquiring property in any area which had been populated by a particular fraternity or class of people. In effect, therefore, the law of pre emption, '' based on vicinage, was really meant to prevent strangers, i.e. people belonging to different religion, race or caste, from acquiring property. Such division of society now into groups and exclusion of strangers from any locality cannot be considered reasonable and the main reason, therefore, which sustained the law of pre-emption, based on vicinage, in previous times can have no force now and the law must be held to impose an unreasonable restriction on the right to acquire, hold and dispose of properly as. now guaranteed under Article 19(l)(f), for it is impossible to see such restrictions as reasonable and in the interests of the general public in the. state of society in the present day.

The pre-emption law under the West Bengal Statute, though similar in some respects to the law under the Rewa Act, is quite different from it in other respects. In the West Bengal Land Reforms Act, there is no ? provision for interference by the Court with regard to the price to be paid. The pre-emptor has to deposit the consideration money together with 10 per cent thereof as compensation.

But the Supreme Court has pronounced the Rewa Act to be bad not only because it permits the Court to fix a fair price but also because pre-emption on the ground of vicinage is in itself objectionable. The Rewa Act was applicable to both urban and agricultural land and also to house properties. It was in connection with its application to urban lands, that the Supreme Court held pre-emption on the ground'' of vicinage to be an unreasonable restriction on the fundamental right to hold, acquire and dispose- of property. But, so far as agricultural lands are concerned, the Supreme Court ;let fall a hint that different considerations might apply in such cases and that pre-emption of such lands on the ground of vicinage might be Supported as tending to promote consolidation of holdings. It has at the same time pointed out that, in spite of some advantage accruing from consolidation of lands, almost all the States have enacted laws putting ceilings on agricultural holdings. In view of this conflicting trend in'' Legislation, ? tfifr Supreme Court, refrained; from expressing any. definite opinion in the matter. . The following except from the majority judgment of the Supreme Court will be relevant in this connection:

It is urged, however, that at any rate, in the case of agricultural properties, ''pre-emption by vicinage results in consolidation of agricultural lands and, that at any rate, is an advantage. How far the argument of consolidation can be availed of now when we find that in most States laws are being passed, which are putting ceilings on agricultural holdings, is a matter which it is unnecessary, to consider in the present case, for the Rewa Act applied not only to agricultural holdings but also to urban property including house property. There is no question of any advantage arising out of consolidation where one is dealing with urban property or house property. The matter of consolidation might have had some bearing if the Rewa Act was applicable to agricultural lands only. But, as it applied to urban lands as well as house property, where no question of consolidation of holdings arises, the impugned provision cannot be held to be reasonable restriction in the interests of the general public on the ground that it leads to consolidation of agricultural holdings.

The provisions for pre-emption in the West Bengal Land Reforms Act are meant exclusively for agricultural lands. As the Supreme Court has left the question open, so far agricultural lands are concerned, it will have to be examined how far those provisions insofar as they allow pre-emption on the ground of vicinage can be supported on the ground of public benefit. It is well-known that continued process of fragmentation over many generations has rendered the holdings of our peasantry in most cases too small and uneconomic. Consolidation of holdings by halting this process will make better cultivation possible and is, therefore, a desirable thing. In the West Bengal Land Reforms Act itself, in chap. V, there are certain provisions regarding consolidation of holdings into compact blocks. Those provisions can, however, be enforced only when two-thirds or more of the owners, who would be affected by such consolidation, agree to it. But, the point to be noted is that the Legislature views consolidation of holdings as something beneficial to the agriculturist.

Legislature has also, of course,, in Sub-section (3) of Section 4 of the West Bengal Land Reforms Act provided of a ceiling on the quantity of agricultural land that a single individual can be permitted to hold, but that is no indication that consolidation of small holdings is disfavored. The right to pre-empt u/s 8(1) can be exercised subject to the limitations imposed by Section 4(3). Consolidation resulting from pre-emption of adjoining lands can, therefore, never lead to accumulation of too much lands in ''the hands of a few persons, which the Legislature wants to avoid. Section 8(1) clearly aims at consolidation of small holdings avoiding, at the same lime, the baneful effects of excessive accumulation. Viewed in that light, the law of pre-emption of agricultural lands on the ground of vicinage serves some useful public purpose. The restriction on the right to hold,, acquire and dispose of property that such law implies is, therefore, a reasonable restriction within the meaning of Clause 5 of Article 19 of the Constitution.

Apart from the above considerations, it is to be noted that Uie West Bengal Land Reforms Act is included in tire 9th Schedule to the Constitution being the 60th item thereof. Article 31B of the Constitution provides as follows:

Without prejudice to the generality of the provisions contained in Article 31A none of the Acts & Regulations specified in the Ninth Schedule, nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this part and, notwithstanding any judgment, decree or order of any Court or Tribunal to the contrary, each of the said Acts & Regulations shall, subject to the power of any coli patent Legislature to repeal or amend it, continue in force.

It may be argued that the opening words--"Without prejudice to the generality of the provisions, contained in Article 31 A" --indicate that Article 31B can be invoked in those cases only where Article 31A is attracted. But, in N.B. Jeejeebhoy Vs. Assistant Collector, Thana Prant, Thana, the Supreme Court, repelled such argument holding as follows:

The words without prejudice to the generality of the provisions in Article 31B indicate that'' Acts & Regulations, specified in the Ninth . Schedule, would have the immunity even if they did not attract Article 31A of the Constitution. If every Act in the Ninth Schedule would be covered by Article 31 A, this Article would become redundant. Indeed, some of the Acts mentioned therein, namely, items 14 to 20, and many other Acts, added, to the Ninth Schedule, do not appear to relate to estates as denned in Article 31A(2) of the Constitution. It must, therefore; be held that Article 31B is not governed by Article 31A and that Article 31B is a constitutional device to place the specified statutes beyond any attack on the ground that they infringe part. Ill of the Constitution.

In the present case, we are not concerned with acquisition of any estate by the State. So Art: 31A of the Constitution can ha\\e no manner of application. But, even so, as interpreted by the Supreme Court, Article 31B will come into play. The West Bengal Land Reforms Act, which finds place in the Ninth Schedule, would therefore be valid irrespective of the question whether its provisions impose any unreasonable restrictions on a citizen''s right to hold, acquire and dispose of property or not. Those provisions are, of course, not unreasonable as shown above. But, even if they appeared to be so, they would not be void in view of or by reason of the provisions of this Article.

The above disposes of the common question arising in the two rules.

Now, coming to the other points, we take up first C.R. No. 1321 of 1968. In this case, the transfer took place on November 27, 1963, and the application for pre-emption u/s 8 of the West Bengal Land Reforms Act was made on March 18, 1964, that is to say, within four months of the. date of transfer as prescribed in Sub-section (1) of Section 8 of the Act, but the consideration money and the compensation, which is 10% of the consideration, were deposited on November 16, 1964. The petition was allowed by the Revenue Officer. The Munsif, who is the appellate authority, dismissed the vendee''s apical. It has been contended on behalf of the vendee, who is the Petitioner before us, that the deposit should have been made by the pre-emptor within four months of the date of transfer and that, as that was not done, the deposit was invalid and, on the basis of such invalid deposit, the petition should not have been allowed. It appears that, on March 23, 1964, that is, five days after the filing of his application for preemption has well within four months from the date of the relative transfer, the pre-emptor applied to the Collector for an order on his office to accept the deposit of the consideration money and the compensation, but no order was passed by the Collector upon his application till September 30, 1964, when he was asked to make the deposit by November 16, ,1964, and, accordingly, the deposit was made on that date, Section 8 of the Land Reforms Act came into force on October 12, 1963, that is to say, just a few months before the application for pre-emption was made. It being a new law, the pre-emptor found it difficult to get his challans passed as there was some confusion in the office as to who would deal with the matter and what would be the procedure. It was, in these circumstances, that the pre-emptor was compelled to pray for an order, directing the office to accept his deposit. He did not actually ask for any extension of time to make the deposit, but, nevertheless the Sub divisional Officer, who was authorised to deal with the matter, granted him time till November 16, 1964. The appellate authority held that the Subdivisional Officer, who was authorised^) deal with pre-emption applications, was competent to grant extension of time.

u/s 26F of the Bengal Tenancy Act, which now stands repealed, a co-sharer tenant was entitled to apply for pre-emption. Sub-section (2) of that section made it imperative to deposit the consideration money and the compensation at the time of making the application and, in default, the application was to stand dismissed. There is, however, no such provision in Section 8 of the Land Reforms Act. It was for this reason that the appellate authority held that the Sub divisional Magistrate, in his discretion, could extend the time. But, strictly speaking, no question of extension of time arises. The relevant portion of Section 8(1) of the. West Bengal Land Reforms Act reads as follows:

any raiyat possessing land, adjoining such holding, may, within four months of the date of such transfer, apply to the Revenue Officer, specially empowered by the State Government in this behalf, for transfer of the said portion or share of the holding to him, subject to the limit, mentioned in the Sub-section (3) of Section 4, on deposit of the consideration money together with a further sum of ten per cent of that amount.

The words ''within four months'' which fixes the time limit have relation to the verb ''apply''. The application has to be made within four months. This much is quite clear. But the question is whether the phrase ''on deposit of the consideration money etc'' also modified the verb ''apply''. To us the grammatical structure of the sentence seems to indicate that that phrase goes with the word ''transfer'' and not with the word ''apply''. It indicates the condition upon which the transfer in favour of the pre-emptor is to be made rather than the manner in which the application is to be made. What may be applied for is--"transfer of the share or portion of the holding to him...on deposit of the consideration money etc". So it is quite obvious that the deposit need not be made within four months. There being no statutory time limit for making the deposit the question whether the time can be extended or not does not arise at all. The Revenue Officer dealing with a preemption application, when no deposit is made along with the application, will fix a time for that purpose and the pre-emptor will have to make the deposit within that time. In the preset case, the pre-emptor did make the deposit within that time. Further, whatever delay there was in the instant case was due not to any laches on the part of the pre-emptor but due entirely to the Revenue. Officer''s not making any prompt order in the matter and it is quite obvious, in the circumstances, already noted, that without this order in the matter the deposit in question could not be made, ir is also well-known that no one can be prejudiced by any act or omission of the Court and the principle will apply here.

For the reasons, stated above, the deposit cannot be said to be invalid.

The application for. pre-emption, out of which C.R. 1926 of 1966 arises, was dismissed by the Revenue Officer, but on appeal it has been allowed by the appellate authority. In this case, three different portions of the same plot of land were sold to the same person by three different kobalas The first two kobalas were executed on May 8, 1965, and the third one on June 16, 1965. The portions sold by the different kobalas have been described in the schs. ka, hha and ga respectively of-the. preemption petition. The kobalas executed on May 8 were registered on June 18 and that executed ori June 16 was registered on July 22. The application for pre-emption was made on September 27, 1965, i.e. beyond four months from the date of execution of the first two kobalas. The Revenue Officer held that the prayer for pre-emption, so far as the lands conveyed by these two kobalas were concerned, was barred by limitation. The application was, of cqurse, within four months of the date of execution of the third kobala, but the Revenue Officer rejected the prayer for pre-emption in respect of this kobala also on the ground that the petition was bad in its entirety as it contained three prayers for pre-emption of properties sold by three different kobalas. The Munsif, on appeal, held that the period of limitation of five months was to be computed not from the date of execution of the sale deed but from that pf its registration. He did not express any opinion as to whether the petition was bad on account of its containing three separate prayers for preemption. He ,set aside the order of the "Revenue Officer and allowed the petition in toto; apparently, he did not consider the multiplicity of prayers to be any defect at all.

As regards the question of limitation, Section 8(1) of the West Bengal Land Reforms Act says that the owner of the" adjoining land has to make the application within four months of the date of transfer, and Section 47 of the Registration Act provides that a registered document operates from the date of its execution and not from the date of its registration. At first sight, therefore, it might appear that the material date is the date of execution and that the period of four months should be counted from that date. But) there is something also to be considered in this connection.

u/s 5(1) of the Land Reforms Act a transfer of the holding of a raiyat must be by a registered instrument. Hence, there is no completed transfer so long as there is no registration and it is the completed transfer which gives the adjoining owner the right to apply for pre-emption. In other words, his right accrues after the registration of the sale deed. Hence, the date of registration is the material date and the period of limitation should be counted from that date. In Gobardhan Bar v. Guriadhar Bar 44 C.W.N. 902 a similar question arose for the consideration of this Court though in a Gmewhat different context. There an application for preemption u/s 26F of the Bengal Tenancy Act was made by a co-sharer tenant shortly after the Bengal Tenancy Amendment Act of 1938 had come into force. The kobala, giving rise to the application, was executed before the amending Act had come into force, but it was registered after that. So the question arose what would be the material date on which the co-sharer tenant''s right to apply accrued It was decided that the right could not accrue till the transfer was completed by the registration of the deed of transfer and, hence, the date of registration was the material date. That being the settled position in law, the application in the present case, which was filed within four months of the date of registration of the deeds of transfer, was not barred by limitation.

The contention that the application was bad as it contained three prayers'' of pre-emption in respect of three different transfers has really no substance at all. The transfers being made in favour of the same person and in respect of different portions of the same holding it was quite appropriate that the three causes of action, arising out of those transfers, should be joined in the same petition.

Another contention, raised on behalf of the Petitioner in this rule, is that the prayer for pre-emption of the sch. ga land was not maintainable, as by virtue of his earlier purchase of the ka and kha schedule lands, the Petitioner had already become a co-sharer in the holding, when the sch. ga property was purchased by him and as a Section 8(1) of the West Bengal Land Reforms Act docs not apply to transfers in favour of co-sharers in the holding. The sale deeds in respect of the ka and kha schedule lands were executed on May .8, 1965, and registered on June 18, 1965, while that in respect of the ga schedule land was executed on June 16, 1965, arid resisted on, July 22, 1965. It is, therefore, quite evident that, when the third purchase was made, the vendee had already become a co sharer in the holding. Section 8(1) of the West Bengal Land Reforms Act expressly excludes from its scope transfers in favour of co-sharers. That being the position, the prayer for pre-emption in respect of the schwa land was clearly not maintainable and the order of the appellate authority allowing it, should be set aside.

In the result, the rule in C.R. No. 1321 of 1968 is discharged. In C.R. No. 1926 of 1968 the opposite party''s prayer for preemption in respect of the sch. ga land is rejected and the appellate authority''s order is modified to that extent. Subject to the above, the rule in C.R. No. 1926 of 1968 is also discharged.

No order is made as to costs in either case. This judgment will govern both the rules.