SAHID ALI Vs. S.K. ABUL KASEM

JUDGEMENT

(1.) These two Revisional applications raise a short point of law, which has been referred to along with the case itself, before a Division bench, by a learned single Judge. The said point of law, in substance, is whether on failure of the pre -emptor to deposit the consideration amount in full, as mentioned in the documents of transfer, simultaneously with the application for pre -emption, in the Court of the learned Munsif, the application deserves to be dismissed. The trial Court allowed the pre -emptor application after holding that the pre -emptors were required to further deposit Rs. 3,000/ - (Rupees three thousand only) with regard to each of the two applications within the times specified by the trial Court. On appeal, however, the learned Additional District Judge, 2nd Court, Howrah, set aside the said order of the learned Munsif and dismissed the applications for pre -emption upon a view that the pre -emptors were statutorily required to deposit simultaneously the entire amounts of the consideration, as mentioned in the documents of transfer. The present Revisional applications have been preferred on behalf of the pre -emptors, challenging the said order of the learned additional District Judge.

(2.) We have heard Mr. Roy Chowdhury, in support of the Revisional applications, and Mr. Roy, on behalf of the contesting opposite party, In making the reference, it appears that the learned single Judge referred to decisions of two learned single Judges of this Court in two different matters, which apparently were in conflict with each other. It has been pointed out by Mr. Roy Chowdhury that in view of the pronouncement of the Division Benches of this Court, the decisions of the learned single Judges could not be said to be any longer binding and as such, there was no necessity for the reference, as made by the learned single Judge, before the Division Bench. Two decisions, referred to and relied only Mr. Roy Chowdhury, are those delivered in the cases of Jyotish Chandra Sardar vs. Hira Lal Sardar, reported in, I.L.R. 1971(I) Calcutta 213 and the other in the case of Sadhan Chandra Samanta vs. Jaladhi Bala Dasi & another, reported in, 1983 (1) C.L.J. 170, which, in effect, followed the ratio laid down by the earlier Division Bench, The said two decisions, inter alia, propound that Ss. 8 and 9 of the West Bengal Land Reforms Act, read together, do not require a simultaneous deposit of the consideration money with the application for pre -emption. Mr. Roy, on the other hand, placed reliance upon the single Judge decision of this Court, reported in the case of Bimal vs. Nikhilesh reported in 85 C.W.N. 782. In view of the aforesaid two Division Bench Judgements, we do not find any reason to accept Mr. Roy's contention. We say so also upon a reading the language of the two Ss. viz. Ss. 8 and 9 of the West Bengal Land Reforms Act, as interpreted by Mr. Roy Chowdhury by way of substantiation of merits of his case,. Sec. 8 of the West Bengal Land Reforms Act provides for deposit of consideration money without specifying, as in the cases of similar provisions in Sec. 26F of the Bengal Tenancy Act and Sec. 24 of the West Bengal Non -Agricultural Tenancy Act, for deposits simultaneously with the application, nor does the said Sec. provide for any penal consequence, ensuing from non deposit in the said manner by rejection of the application. Sec. 9, however, makes provision for the proof of actual amount of consideration paid by the transferee for the transfer in their favour along with other sums and also or an enquiry into the truth and correctness of such assertion by the learned Munsif, culminating with a direction by him for deposit of further sum, if any, within the time specified therefor by him. There is no prevision for repayment or refund of excess consideration, as may be found after enquiry by the learned Munsif, but only provision for deposit of such further sum. Requirement of proof would arise in case of pre -emptor's disputing the consideration amount. Requirements under the said Sec. can be harmoniously reconciled, if, the view, which we have expressed hereinabove, following the two Division Bench judgments, is accepted. Mr. Roy's submission is that since Sec. 9 refers to the word 'transferee' and not 'pre -emptor' and places the onus of providing the actual amount of consideration on him, there is no scope for the Court to exempt the pre -emptor from depositing the entire amount of consideration, as per transfer deed, simultaneously with the application for pre -emption, which cannot fit in with the language of the statute, but for acceptance of such a submission, the Court may have to import the power of directing refund or repayment in the language of Sec. 9 itself. Secondly by implication, since one particular mode of action for the Court has been prescribed, the other forms of action or types of action on the part of the Court can be presumed to have been excluded. The user of the word 'transferee' does not militate against the aforesaid construction, as further deposit cannot be determined, without determination of the actual amount of consideration and other amounts statutorily recoverable by the transferee, thus requiring the representation by the transferee in course of the enquiry by the Court concerned. For the said reasons also, the views expressed by the Division Benches are unexceptionable and the views expressed by the learned single Judge in 85 C.W.N. 782 do not continue to be good law any further.

(3.) Before parting with the case, we would also like to note another contention, raised by Mr. Roy regarding availability of relief under Sec. 115 of the Code of Civil Procedure. In view of the pronouncement of the Division Bench in the case of Paresh Nath vs. Byan Bihari and others, reported in, A.I.R. (1982) Calcutta 285 following another Division Bench of this Court, reported in the case of Prosonna Kumar Giri vs. Gangadhar Raut, reported in 81 C.W.N. 580, we can say without any hesitation that the point lacks substance and merit. The single Judge decision relied on by Mr. Roy in view of the pronouncement of the Division Bench, as mentioned above, on this cannot be said to hold good.