NAYMUL HAQUE @ NAINUL HAQUE Vs. ALLAUDDIN SK

JUDGEMENT

(1.) These references primarily involve the question as to whether the right of pre-emption specified in Section 8 of the West Bengal Land Reforms Act, 1955 could be exercised in a case where the entire interest in the subject land is being transferred by a raiyat, if the other conditions stipulated in the aforesaid section are fulfilled. In a decision delivered by a learned Single Judge of this Court in the case of Kinkar Mahato Vs. Sahan Mahato,2005 3 ICC 5, it was held that in such a situation, the right of pre-emption contemplated in the said provision could not be invoked. In a later decision, Biswanath Sarkar & Anr. Vs. Sunit Kumar Saha, (2013) 3 WBLR 271 (Cal)], another learned Single Judge of this Court held that if a co-sharer is holding an undivided undemarcated share in a plot of land and such co-sharer sells the said share to any person other than the co-sharer, the other co-sharer would have the right of pre-emption. The same view (as in the case of Biswanath Sarkar) was also expressed in another judgment of this Court in the case of Sk. Sajhan Ali Vs. Sk. Saber Ali,2015 3 CHN 689 (Cal)]. In Sk. Sajhan Ali, it was specifically held that if a raiyat transfers his entire portion or share in a plot of land to a person other than the co-sharer of raiyat, pre-emption is permissible.

(2.) In C.O. 1164 of 2015, the revisional jurisdiction of this Court was invoked in respect of an application in which the pre-emption claim of the applicant was rejected by the learned Courts below on the ground that the entire share in the subject property stood transferred. The case of Kinkar Mahato was relied upon by the lower appellate Court, assailing whose order the revisional application was filed. A learned Single Judge referred the matter to the Hon'ble Chief Justice noting that there was conflicting views of this Court on the subject issue expressed in Kinkar Mahato on one hand and Biswanath Sarkar and Sk. Sajhan Ali on the other. The learned Single Judge opined that the conflict ought to be resolved on constituting appropriate Bench.

(3.) Referring to Section 8 of the 1955 Act, the learned Single Judge formulated the point of conflict in the following manner :-