ABDUL MATIN MALLICK versus SUBRATA BHATTACHARJEE (BANERJEE) AND ORS.

Citation: [2022] 3 S.C.R. 611 · Decided: 05-05-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

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ABDUL MATIN MALLICK
v.
SUBRATA BHATTACHARJEE (BANERJEE) AND ORS.
(Civil Appeal no. 3499 of 2022)
MAY 05, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
West Bengal Land Reforms Act, 1955: s.5(5), 8, 9 – Right of
purchase by co-sharer or contiguous tenant – Pre-emption
application – Maintainability of – Vendors of the pre-emptee
transferring their entire share in the property to person other than
a raiyat in the said plot of land without notice to the pre-emptors –
Pre-emption application by respondents-pre-emptor to exercise their
right as pre-emptors u/s 8, allowed by the first appellate court –
However, the High Court while upholding the said order, granted
time to the pre-emptors to deposit the balance consideration money
together with further sum of 10% of that amount – On appeal, held
: Right of pre-emption is a very weak right – Any provision to enforce
such a right must, be strictly construed – Deposit of the entire sale
consideration with additional 10% of the sale consideration
alongwith the pre-emption application is a statutory and mandatory
requirement – It is a pre-condition before any further enquiry as
contemplated u/s. 9 is held – On facts, the pre-emptors had not
deposited the entire sale consideration with additional 10% of the
sale consideration alongwith the pre-emption application – First
appellate court or even the High Court did  not consider the said
aspect – Unless and until the same is complied with, the pre-emption
application would not be maintainable – High Court not justified
in permitting the pre-emptors to deposit the balance sale
consideration while deciding the revision application – Such
direction/permission/liberty would be against the intent of s. 8 –
Thus, the orders passed by the High Court and that of the first
appellate court quashed and set aside – Pre-emption application
filed by the original pre-emptors-respondent dismissed.
Allowing the appeals, the Court
HELD: 1.1 The right of pre-emption is “a very weak right”.
That being the character of the right, any provision to enforce
[2022] 3 S.C.R. 611
611
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SUPREME COURT REPORTS
[2022] 3 S.C.R.
such a right must, thus, be strictly construed. The deposit of the
entire sale consideration with additional 10% of the sale
consideration alongwith the pre-emption application is a statutory
and mandatory requirement and it is a pre-condition before any
further enquiry as contemplated under Section 9 of the West
Bengal Land Reforms Act, 1955 is held. In the instant case,
admittedly, the pre-emptors had not deposited the entire sale
consideration with additional 10% of the sale consideration
alongwith the pre-emption application. The said aspects have not
been considered either by the First Appellate Court or even by
the High Court. [Para 6.1, 6.3][618-G-H; 623-B-C]
1.2. The submission on behalf of the pre-emptors that they
bonafidely believed that the sale consideration mentioned in the
sale deed is in favour 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 alongwith the pre-
emption application is concerned, it is to be noted that the said
cannot be a ground not to comply with the condition of deposit as
required under Section 8 of the Act, 1955. Such a dispute can be
the subject matter of an enquiry provided under Section 9 of the
Act. The enquiry under Section 9 with respect to the sale
consideration in the sale deed would be only after the condition
of deposit of entire sale consideration with additional 10% as
provided under Section 8 of the Act has been complied with. [Para
7][623-D-F]
1.3. The submission on behalf of the pre-emptors that the
contention of non-deposit of the entire sale consideration with
additional 10% of the sale consideration by the pre-emptors was
not raised before the Courts below and has been raised for the
first time before this Court, and therefore the same be not
considered/permitted to be raised now, is concerned, it is to be
noted that the said contention would go to the root of the matter
on maintainability of the pre-emption application as without
complying with the statutory requirements as mentioned under
Section 8 of the Act, 1955, the same is not maintainable. It is an
admitted position that the pre-emptors had not deposited the
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entire sale consideration with additional 10% of the sa

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