Barasat Eye Hospital Thr. Its Rep. vs Kaustabh Mondal

5. Now turning to the limited contours of the facts of the present case. The appellants before us purchased the suit land from the raiyat holder of land, being R.S. Plot No. 488, measuring 15 decimals, located in Mouza Kalikapur, Barasat, West Bengal, in pursuance of the registered Sale Deed dated 27.5.2005. The stated consideration under the Sale Deed is Rs.5,21,000/-. The respondent before us is a raiyat holder of land contiguous to the suit land, sharing a common boundary line with the same. The respondent, thus, sought to exercise his right of pre-emption 5 under Section 8 of the said Act by filing Misc. Case No.19/2005 before the Civil Judge (Junior Division), 3rd Court, Baruipur, on the ground of vicinage. The relevant aspect is that the respondent sought to dispute the apparent consideration set out in the Sale Deed vide this application by alleging that only a sum of Rs. 2,50,000/- had been paid as consideration for sale, and that an inflated sum had been set out in the Sale Deed as a result of collusion and conspiracy between the transferor and the transferee, being the appellants herein. On the basis of this assertion, the application was accompanied with only a deposit of Rs. 2,75,000/-, consisting of Rs.2,50,000/- as the principal consideration and Rs.25,000/- as the further levy of 10% on the principal consideration, in accordance with Section 8 of the said Act. The respondent sought leave to deposit any further sum, as may be determined by the court, at the time of trial.

8. The appellants took up the matter in Misc. Appeal No.286/2007, before the 11th Additional District Judge, Alipore, and succeeded in that 7 appeal in terms of the order dated 31.1.2008. The conclusion of the appellate court was predicated on a reasoning that it was really not the jurisdiction of the court to decide the value of the suit property, and that Section 8(1) of the said Act clearly sets out that the person enforcing the right of pre-emption is required to deposit the full amount as “shown in the sale deed” between the transferor and the “stranger purchaser”.

15. We are conscious of the fact that the proviso begins with a negative connotation of “no such application shall be entertained”, but yet the observations are relevant and germane.

32. We are of the view that the impugned order and the view adopted would make a weak right into a ‘speculative strong right’, something which has neither historically, nor in judicial interpretation been envisaged.

35. We may add here that it may not be appropriate to envisage a situation where a person not succeeding in the right of pre-emption is 26 Gopal Sardar v. Karuna Sardar (supra) 25 deprived of the amount deposited. The vendee cannot appropriate this amount. The State should not be permitted to appropriate this amount. Then, the only sequitur would be that the amount should be refunded back to the pre-emptor.

36. The aforesaid being the position, the respondent is entitled to the refund of the amount deposited by him, together with interest, if any, earned on the same, in case it has been kept in an interest bearing deposit.

37. The appeal is accordingly allowed in the aforesaid terms, leaving the parties to bear their own costs.

38. We hope that our view should put the controversy in respect of this “weak right” of pre-emption to rest.

October 17, 2019.