Right to Pre-Emption

Under West Bengal Land Reform Act 1956

In order to establish the claim of pre-emption, the petitioner pre-emptor has to establish the basic ingredients of Section 8 of the Act of 1955. In a case of pre-emption under Section 8 of the Act of 1955 a pre-emptor has to establish that a portion or a share of a plot of land of a raiyat was transferred to a stranger purchaser, that the petitioner pre-emptor was a bargadar, or a co-sharer or an adjacent land owner of the plot of land from which said transfer was made and that he filed said application within the prescribed time. The opposite party who is resisting said claim of pre-emption also knows what are the points in issue in an application for pre-emption under Section 8 of the Act of 1955. As such, the absence of those specific averments in the application did not prejudice the O. P. pre-emptee in taking his defence in the case. There was also no specific averment in the written objection of the pre-emptee that his vendor transferred his entire share in the suit tank. Under these circumstances, there was no bar to adduce evidence by the parties in support of their respective claims on the point in issue.

In the case of Paschimbanga Bhumijibi Krishak Samity and others and subsequent decisions followed as referred by Mr. Roy it was held that ‘bastu’ land or land having dwelling house should not come within the purview of pre-emption under Section 8 of the Act of 1955. But admittedly, the suit property was a tank. In terms of West Bengal Land Reforms (Amendment Act) of 1981 land means land of several descriptions and includes tank, tank fishery etc. as defined in Section 2 (7) of the Act of 1955 with effect from 7th of August, 1969. As such, tank or tank fishery after said amendment has been brought within the fold of land as defined in the Act of 1955. After said amendment of the definition of land in the Act of 1955 whenever any portion or share of a plot of land of a raiyat whether agriculture or otherwise is transferred to a stranger purchaser, Section 8 may be attracted. Tank or tank fishery cannot be equated with ‘bastu’ land. As such, those case laws have no application in the facts of this case. [Calcutta High Court (Appellate Side) Basanti Mondal & Ors vs Srikanta Mondal  Decided on 26 September, 2013 in  C. O. No. 1110 of 2012 ]

 S. 8 Right of purchase by co-sharer or contiguous tenant.—

(1) If a portion or share of a [plot of land of a raiyat] is transferred to any person other than a [co-sharer of a raiyatin the plot of land], [the bargadarin the plot of land] may, within three months of the date of such transfer, or] any [co-sharer of a raiyat in the plot of land] 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 plot of land]may, within four months of the date of such transfer, appiy to the [Munsif having territorial jurisdiction,] for transfer of the said portion or [share of the plot of land]to him, subject to the limit mentioned in [section 14M,] on deposit of the consideration money together with a further sum of ten per cent of that amount:
[Provided that if the bargadar in the plot of land, a [co-sharer of raiyat in a plot of land] and a raiyat possessing land [adjoining such plot of land] apply for such transfer, the bargadar shall have the prior right to have such portion or [share of the plot of land] transferred to him, and in such a case, the deposit made by others shall be refunded to them:]

[Provided further that where the bargadar does not apply for such transfer and] a [co-sharer of a raiyat in the plot of land] and a raiyat possessing land [adjoining such plot of land] both apply for such transfer, the former shall have the prior right to have such portion or [share of the plot of land] transferred to him, and in such a case, the deposit made by the latter shall be refunded to him:

[Provided also] that as amongst raiyats possessing lands [adjoining such plot of land] preference shall be given to the raiyat having the longest common boundary with the land transferred.

(2) Nothing in this section shall apply to—

(a) a transfer by exchange or by partition, or

(b) a transfer by bequest or gift, or hiba-bil-ewaz, or

(c) a mortgage mentioned in section 7,

(d) a transfer for charitable or religious purposes or both without reservation of any pecuniary benefit [for any individual, or]

[(e) a transfer of land in favour of a bargadar in respect of such land if after such transfer, the transferee holds as a raiyat land not exceeding one acre (or 0.4047 hectare) in area in the aggregate.

Explanation.—All orders passed and the consequences thereof under sections 8, 9 and 10 shall be subject to the provisions of Chapter IIB.]

(3) Every application pending before a Revenue Officer at the commencement of section 7 of the West Bengal Land Reforms (Amendment) Act, 1972 shall, on such commencement, stand transferred to, and disposed o by, the Munsif having jurisdiction in relation to the area in which the land is situated and on such transfer every such application shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provision of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972.

S. 9  Munsif to allow the application and apportion lands in certain cases.—

(1) On the deposit mentioned in sub-section (1) of section 8 being made, the Munsif shall give notice of the application to the transferee, and shall also cause a notice to be affixed on the land for the information of persons interested. On such notice being served, the transferee or any person interested may appear within the time specified in the notice and prove the- consideration money paid for the transfer and other sums, if any, properly paid by him in respect of the lands including any sum paid for annulling encumbrances created prior to the day of transfer, and rent or revenue, cases or taxes for any period. The Munsif may after such enquiry as he considers necessary direct the applicant to deposit such further sum, if any, within the time specified by him and on such sum being deposited, he shall make an order that the amount of the consideration money together with such other sums as are proved to have been paid by the transferee or the person interested plus ten per cent of the consideration money be paid to the transferee or the person interested out of the money in deposit, the remainder, if any, being refunded to the applicant. The Munsif shall then make a further order that the portion or [share of the plot of land] be transferred to the applicant and on such order being made, the portion or [share of the plot of land] shall vest in the applicant.
(2) When any person acquires the right, title and interest of the transferee in [such plot of land] by succession or otherwise, the right, title and interest acquired by him shall be subject to the right conferred by sub-section (1) of section 8 on a [co-sharer of a raiyat in a plot of land] or a raiyat possessing [land adjoining the plot of land or bargadar].

(8) In making an order under sub-section (1) in favour of more than one [co-sharer of a raiyat in a plot of land or raiyat holding adjoining land or bargadar] the Munsif may apportion the portion or [share of the plot of land] in such manner and on such terms as he deems equitable.

(4) Where any portion or share of a [plot of land] is transferred to the applicant under sub-section (1), such applicant shall be liable to pay all arrears of revenue in respect of such portion or share of the [plot of land] that may be outstanding on the date of the order.

(5) The Munsif shall send a copy of his order as modified on appeal, if any, under sub-section (6) to the prescribed authority for correction of the record-of-rights.

(6) Any person aggrieved by an order of the Munsif under this section may appeal to the District Judge having jurisdiction over the area in which the land is situated, within thirty days, from the date of such order and the District Judge shall send a copy of his order to the Munsif. The fees to be paid by the parties and the procedure to be followed by the District Judge shall be such as may be prescribed.

(7) Every appeal pending before an Additional District Magistrate at the commencement of section 8 of the West Bengal Land Reforms (Amendment) Act, 1972, shall, on such commencement, stand transferred to, and be disposed of by, the District Judge having jurisdiction in relation to the area in which the land is situated and on such transfer, every such appeal shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provisions of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972.

S. 10 Consequences of an order for transfer.—

On an order under section 9 being made—
(a) the right, title and interest of the raiyat and of the transferee or of the person mentioned in sub-section (2) of section 9 who acquires any right, title and interest in the [plot of land] shall vest in the raiyat whose application for transfer has been allowed by the Revenue Officer or by the Munsif or, after the commencement of section 8 of the West Bengal Land Reforms (Amendment) Act, 1971 (Act 3 of 1971), by the Additional District Magistrate, or after the commencement of the West Bengal Land Reforms (Amendment) Act, 1972, by the District Judge on appeal:

Provided that the transferee or the person mentioned in sub-section (2) of section 9 shall have the right to take away the crops which he might have grown on the land before the date of the order;

(b) the raiyat whose application has been so allowed shall be liable for any revenue accruing from the date of the order.

1. an application under said Section 8 may lie whether on the ground of the petitioner being a co-sharer in the holding or on the ground of his possessing land adjoining such holding, it is incumbent on the petitioner to show that there was transfer of either a portion or share of a holding of a raiyat. The word “holding” has been defined by Section 2(6) of the said Act as meaning the land or lands held by a raiyat and treated as a unit for assessment of revenue. [Calcutta High Court Saranan Mondal And Anr. vs Bejoy Bhushan Ghosh on 15 March, 1979 Equivalent citations: AIR 1979 Cal 174 ]
2. Further, under Sub-section (1) of Section 8 of the said Act, when there is a transfer of a portion or share of holding of a raiyat to any person other than a co-sharer in the holding, a co-sharer raiyat of the holding or a raiyat possessing land adjoining such holding may apply for transfer of the said portion or share of the holding to him. But that is subject to the limit mentioned in section 14M
3. Under the provisions so substituted by the Amendment Act of 1981, non- agricultural lands would become ‘lands’ and the holders thereof would become ‘raiyats’ under and with the meaning of the Land Reforms Act of 1955 and in view of the over-riding effect given to the provisions of the Land Reforms Act under Section 3, even as it stood before, and now further fortified by Section 3 as substituted, right of pre-emption in respect of all lands, agricultural or non- agricultural, would be governed and regulated by Sections 8, 9 and 10 of the Land Reforms Act of 1955.
4. Amended  s. 2 (10), a “raiyat” may also hold apart from agricultural and/or homestead land, land which is being used for non- agricultural purpose and such land would also form a part of his holding and hence the same can also be pre- empted under s. 8 of the West Bengal Land Reforms Act, 1955 being the land of a “raiyati holding”

Pre-emption under Muhammadan law

What is the extent of Mahomedan Law in the matter of pre-emption. The contention on behalf of the appellant is that Mahomedan Law recognizes pre-emption only with respect to full proprietary rights and that it does not recognise pre-emption with respect to lease-hold rights. We are of opinion that this contention is well-founded. In Principles of Mahomedan Law by D. F. Mulla (15th Edition), the extent of pre-emption in Mahomedan Law is thus stated at p. 207 :-

“There must be also full ownership in the land pre-empted, and therefore the right of pre-emption does not arise on the sale of a lease-hold interest in land.”

This statement of law is supported by a number of decisions to which reference may now be made. The earliest of these decisions is Baboo Ram Golam Singh v. Nursing Sahoy & others (1875) 25 Weekly Reporter (Sutherland) 43. In that case, mokureree land was sold land the owner wanted to pre-empt the sale. The court held that he mokurereedar did not stand in the same position as the malik and the law of pre-emption only applied to the sale of land of a malik i.e., proprietor. Therefore there could be no pre-emption where the sale was of only mokureree rights which were permanent lease-hold rights.

The next case to which reference may be made is Phul Mohammad Khan v. Quazi Kutubuddin ILR [1937] 16 Pat. 519. In that case the Patna High Court held that Mahomedan Law of pre-emption did not apply to pre-empting Mukarrari and raiyati rights, the sale of such interests being not of full proprietary interest.

The next case to which reference may be made is Dashrathlal Chhaganlal v. Bai Dhondubai ILR [1941] Bom. 460. There also the right of pre-emption arose by custom and was co-extensive with Mahomedan Law. The property sold in that case was a plot of land with two rooms on it in which the vendors had transferable and heritable rights and some rent was paid to Government on account of the permanent lease on which the land was held. The High Court held that Mahomedan Law of pre-emption with which the custom of pre-emption was co-extensive applied only as between free-holders, that is to say, the neighbouring land in respect of which the custom was claimed must be freehold and the land sought to be pre-empted must also be freehold. It did not arise on the sale of leasehold interests in land.

The next case to which reference may be made is Rameshwar Lal Marwari v. Pandit Ramdeo Jha AIR 1957 Pat. 695. In that case raiyati land had been sold and a suit was brought to pre-empt that sale. The Patna High Court held that there could be no pre-emption with respect to rayati land which amounted to a leasehold, whatsoever might be the ground on which the pre-emption might be sought under Mahomedan Law.

These cases bear out the proposition which has been accepted without dissent by High Courts that Mahomedan Law of pre-emption applies only to sales where they are of full ownership and preemptors must also base their claim on similar full ownership whether pre-emption is claimed on ground of co-sharership, vicinage or participation in amenities and appendages. Learned counsel for the respondent relied on AIR 1933 161 (Oudh) for the proposition that there could be pre-emption of leasehold interest also for that was a case of lease. Pre-emption there was claimed not under Mahomedan Law but under the Oudh Laws Act. That case therefore does not help the respondent. The law in our opinion is quite clear and it is that under the Mahomedan Law of pre-emption there must be full ownership in the land pre-empted and therefore the right of pre-emption does not arise on the sale of leasehold interest in land. It may be added that the preemptor also must have full ownership in order to maintain a suit for pre-emption, for reciprocity is the basis of Mahomedan Law of pre-emption. [MUNNI LAL Vs. BISHWANATH PRASAD AND OTHERS -(1968) AIR(SC) 450]