ABDUL MATIN MALLICKversusSUBRATA BHATTACHARJEE (BANERJEE) AND ORS.

                        [2022] 3 S.C.R. 611                              611


                    ABDUL MATIN MALLICK                                  A
                                  v.
    SUBRATA BHATTACHARJEE (BANERJEE) AND ORS.
                   (Civil Appeal no. 3499 of 2022)
                           MAY 05, 2022                                  B
        [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
                                                                         C
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       D
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
                                                                         E
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     F
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
                                                                         G
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          H
                             611
612           SUPREME COURT REPORTS                     [2022] 3 S.C.R.


A     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,
B
      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]
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
D     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
E     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
F     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
G     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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  ABDUL MATIN MALLICK v. SUBRATA BHATTACHARJEE                      613
               (BANERJEE) AND ORS.

entire sale consideration with additional 10% of the sale           A
consideration along with the pre-emption application as required
under Section 8 of the Act in the instant case. [Para 8][623-F-H;
624-A]
      1.4. Even the High Court in the impugned judgment and
order has permitted the pre-emptors to deposit the balance sale     B
consideration. However, faced with the decision of this Court in
the case of Barasat Eye Hospital and Ors. and in light of the
observations that alongwith the pre-emption application, the pre-
emptors have to deposit the entire sale consideration with
additional 10% and only thereafter the further enquiry can be
conducted as per Section 9 of the Act, 1955 and therefore, unless   C
and until the same is complied with, the pre-emption application
would not be maintainable, the High Court is not justified in
permitting the pre-emptors to now deposit the balance sale
consideration with additional 10% while deciding the revision
application. Such a direction/permission/liberty would go against   D
the intent of Section 8 of the Act, 1955. [Para 9][624-B-D]
     Barasat Eye Hospital and Ors. v. Kaustabh Mondal
     (2019) 19 SCC 767 – relied on.
      1.5. The impugned judgments and orders passed by the
High Court and that of the first appellate court are quashed and    E
set aside. Consequently, the pre-emption application submitted
by the original pre-emptors-respondent Nos. 1 to 3 is dismissed.
Respondent Nos. 1 to 3-original pre-emptors are permitted to
withdraw the amount, which they might have deposited either
alongwith the pre-emption application and/or any subsequent         F
deposit pursuant to the orders passed by the High Court. [Para
10][624-E-F]
     Barasat Eye Hospital and Ors. v. Kaustabh Mondal
     (2019) 19 SCC 767 – relied on.
     Sk. Sajhan Ali & Ors. v. Sk. Saber Ali & Anr. 2016 (1)         G
     W.B.L.R (Cal) 133; Naymul Haque and Ors. v.
     Allauddin Sk. and Ors. 2019 (1) CLJ (CAL) 488;
     Bishan Singh v. Khazan Singh AIR 1958 SC 838 :
     [1959] SCR 878 – referred to.
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614            SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A                             Case Law Reference
      (2019) 19 SCC 767                 relied on                  Para 6.1, 9
      [1959] SCR 878                    referred to                Para 6
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3499
B     of 2022.
            From the Judgment and Order dated 17.04.2019 of the High Court
      at Calcutta in Co. No. 4266 of 2016.
            With
            Civil Appeal No. 3500 of 2022.
C
           Anand, Ms. Rajeshri N. Reddy, Dibyadyuti Banerjee, Abhijit
      Sengupta, Kumar Neeraj, Advs. for the Appellant.
            Mainak Bose, Sr. Adv., Pawan Kumar Ray, Shreshth Nanda, Riju
      Talukdar, Deepak Goel, Advs. for the Respondents.
D           The Judgment of the Court was delivered by
            M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order passed by the High Court of Calcutta in C.O. NO. 4266 of
E     2016 by which the High Court has dismissed the said writ petition
      preferred by the appellant herein and has confirmed the order passed by
      the first Appellate Court allowing the application submitted by the
      respondents herein – pre-emptors, the original respondents – revisionists
      before the High Court, the appellant herein - pre-emptee has preferred
      the present appeal arising out of SLP (C) No. 5394 of 2022.
F
             1.1 Feeling aggrieved and dissatisfied with the impugned judgment
      and order passed by the High Court of Calcutta in C.O. NO. 1153 of
      2016 by which the High Court has allowed the said writ petition preferred
      by the respondents herein and has revived the execution case filed by
      the respondents for implementing the pre-emption order and has further
G     directed that the executing court shall direct possession to be handed
      over to the pre-emptors in respect of the property in question positively
      within 31.08.2021, the appellant herein – pre-emptee has preferred the
      present appeal arising out of SLP (C) No. 4261 of 2022.
            2. The facts leading to the present appeals in nutshell are as under:-
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  ABDUL MATIN MALLICK v. SUBRATA BHATTACHARJEE                               615
        (BANERJEE) AND ORS. [M. R. SHAH, J.]

       2.1 That the disputed property in question, which was the subject     A
matter of application for pre-emption before the Appropriate Authority
under the West Bengal Land Reforms Act, 1955 (hereinafter referred
to as the “Act, 1955”) belonged to one Khudiram Bhattacharya, who
died on 17.04.2001 leaving behind him, surviving his widow Purnima
Bhattacharya who also died on 14.08.2001 and three sons namely
                                                                             B
Subrata, Debabrata and Ratan (the pre-emptors herein) and two daughters
Kalyani and Alpana, the vendors of the pre-emptee (appellant herein).
On the death of Khudiram Bhattacharya and his widow, the aforesaid
three sons and two daughters inherited the property in question each
having undivided 1/5th share therein. The daughters of the original owner
- Khudiram Bhattacharya sold their undivided 2/5th share in the property     C
in question to the appellant herein - pre-emptee - Abdul Matin Mallick
vide registered sale deed dated 23.11.2011. The sale in favour of the
appellant by the daughters of the said Khudiram Bhattacharya was sought
to be pre-empted by the sons of said Khudiram Bhattacharya on the
ground that their sisters have transferred their undivided share in the
                                                                             D
property in question to the appellant, a stranger to the said property
without serving statutory notice under Sub-Section (5) of Section 5 of
the Act, 1955. The said application under Section 8 of the Act, 1955 was
registered as Misc. Pre-emption Case No. 8 of 2012 before the learned
Trial Court.
       2.2 The learned Trial Court dismissed the said application for pre-   E
emption as not maintainable mainly on the ground that since the vendors
of the pre-emptee had transferred their entire share in the suit property,
the application for pre-emption under Section 8 of the Act, 1955 is not
maintainable.
       2.3 Feeling aggrieved and dissatisfied with the judgment and order    F
passed by the learned Trial Court dismissing the pre-emption application,
pre-emptors preferred the appeal before the First Appellate Court being
Misc. Appeal No. 7 of 2014. The Appellate Court allowed the said appeal
and set aside the order passed by the learned Trial Court and consequently
allowed the application for pre-emption holding that even when a co-         G
sharer of a plot of land transfers his entire share to any person other
than a raiyat in the said plot of land, the application for pre-emption
under Section 8 of the Act, 1955 would be maintainable.
      2.4 Feeling aggrieved and dissatisfied with the order passed by
the First Appellate Court allowing the pre-emption application, the          H
616             SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A     purchaser – pre-emptee filed the present revision application before the
      High Court.
            2.5 By the impugned judgment and order, the High Court has
      dismissed the said revision application and has not interfered with the
      judgment and order passed by the First Appellate Court, however, has
B     granted the time to the pre-emptors to deposit the balance consideration
      money together with further sum of 10% of that amount by further period
      of 30 days.
            2.6 Feeling aggrieved and dissatisfied with the impugned judgment
      and order passed by the High Court, the purchaser – pre-emptee has
C     preferred the present appeals.
             3. Shri Anand, learned counsel appearing on behalf of the appellant
      has vehemently submitted that in the facts and circumstances of the
      case, the High Court has committed a grave error in dismissing the
      revision application and not interfering with the order passed by the First
D     Appellate Court allowing the pre-emption application.
             3.1 It is vehemently submitted by learned counsel appearing on
      behalf of the appellant that as such there was a non-compliance of the
      mandatory requirement of the deposit of the entire sale consideration
      with a further sum of 10% of the sale consideration as required under
E     Section 8 of the Act. It is contended that it is an admitted position that at
      the time of submitting the application for pre-emption, the pre-emptors
      did not make any full deposit of the sale consideration with further 10%
      of the sale consideration alongwith the application for pre-emption.
             3.2 It is urged that before any application for pre-emption is
F     considered and further enquiry is conducted as required under Section 9
      of the Act, deposit of the entire sale consideration with 10% more of the
      sale consideration is a condition precedent. That unless and until the said
      condition is satisfied and/or fulfilled the pre-emption application shall not
      be maintainable at all; that only thereafter the further enquiry as
      contemplated under Section 9 of the Act, 1955 shall have to be conducted.
G     That in the present case, there is non-compliance of the statutory
      mandatory requirement as per Section 8 of the Act, 1955. Therefore,
      the pre-emption application was liable to be rejected.
            3.3 Learned counsel appearing on behalf of the appellant has
      heavily relied upon the decision of this Court in the case of Barasat Eye
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  ABDUL MATIN MALLICK v. SUBRATA BHATTACHARJEE                                   617
        (BANERJEE) AND ORS. [M. R. SHAH, J.]

Hospital and Ors. Vs. Kaustabh Mondal, (2019) 19 SCC 767 (paras                  A
23 to 33).
      3.4 Making the above submissions and relying upon the above
decision, it is prayed to allow the present appeals.
        4. Present appeals are opposed by Shri Mainak Bose, learned
Senior Advocate appearing on behalf of the contesting respondents. It is         B
vehemently submitted that as such the learned Trial Court dismissed the
pre-emption application as not maintainable on the ground that since the
vendors of the pre-emptee have transferred their entire share in the suit
property, the application for pre-emption under Section 8 of the Act,
1955 would not be maintainable. It is submitted that however, in view of         C
the binding decision of the High Court in the case of Sk. Sajhan Ali &
Ors. Vs. Sk. Saber Ali & Anr. reported in 2016 (1) W.B.L.R (Cal)
133 by which it has been held that even when the entire share of a co-
sharer in the plot of a land is transferred to any person other than a
raiyat in the said plot of land, the application for pre-emption under Section
8 of the Act, 1955 would be maintainable. It is therefore submitted that         D
the First Appellate Court rightly set aside the order passed by the learned
Trial Court and allowed the pre-emption application, which is rightly not
interfered with by the High Court.
       4.1 It is submitted that whether an application under Section 8
would be maintainable when a co-sharer of a plot of land transfers his           E
entire share to any person other than a raiyat in the said plot of land, is
answered in the affirmative by the Larger Bench of the High Court in
the case of Naymul Haque and Ors. Vs. Allauddin Sk. and Ors.
reported in 2019(1)CLJ(CAL)488.
       4.2 Now, so far as the submission /contention on behalf of the            F
appellant that as the pre-emptors did not deposit the entire sale
consideration with 10% higher than the sale consideration and therefore,
the pe-emption application was not maintainable is concerned, it is
vehemently submitted that as such the said contention was not raised
either before the Courts below and/or even before the High Court, and            G
it has been raised for the first time before this Court.
      4.3 It is further submitted that alongwith the pre-emption
application, the pre-emptors did not deposit the entire sale consideration
with 10% additional sale consideration as the pre-emptors bonafide
believed that the sale consideration mentioned in the sale deed was on a
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618            SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A     higher side. It is submitted that thereafter the entire sale consideration
      with additional 10% has been deposited by the pre-emptors pursuant to
      the order passed by the High Court. Therefore, even the condition
      mentioned in Section 8 has now been complied with; therefore, the
      contention raised now regarding non-deposit of the entire sale
      consideration with 10% additional sale consideration shall no longer be
B
      available to the appellant.
            4.4 Making the above submissions, it is prayed to dismiss the
      present appeals.
             5. We have heard the learned counsel for the respective parties
C     at length.
              6. At this outset, it is required to be noted that pre-emptors
      submitted the application before the learned Trial Court under Section 5
      of the Act, 1955, in respect of the share sold by their sisters. Therefore,
      the contesting respondents herein – the original pre-emptors sought to
D     exercise their right as pre-emptors under the provisions of the Act, 1955.
      The right of the pre-emption has been elaborately dealt with and
      considered by a Four Judge Bench of this Court in the case of Bishan
      Singh Vs. Khazan Singh, AIR 1958 SC 838, wherein at paragraph
      11, it is observed and held as under: -

E           “11. … (1) The right of pre-emption is not a right to the thing sold
            but a right to the offer of a thing about to be sold. This right is
            called the primary or inherent right. (2) The pre-emptor has a
            secondary right or a remedial right to follow the thing sold. (3) It
            is a right of substitution but not of re-purchase i.e. the pre-emptor
            takes the entire bargain and steps into the shoes of the original
F           vendee. (4) It is a right to acquire the whole of the property sold
            and not a share of the property sold. (5) Preference being the
            essence of the right, the plaintiff must have a superior right to that
            of the vendee or the person substituted in his place. (6) The right
            being a very weak right, it can be defeated by all legitimate
G           methods, such as the vendee allowing the claimant of a superior
            or equal right being substituted in his place.”
             6.1 Thus, as observed and held by this Court in the aforesaid
      judgment, the right of pre-emption is “a very weak right”. That being the
      character of the right, any provision to enforce such a right must, thus,
      be strictly construed. [Barasat Eye Hospital and Ors. (supra)]
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  ABDUL MATIN MALLICK v. SUBRATA BHATTACHARJEE                                   619
        (BANERJEE) AND ORS. [M. R. SHAH, J.]

        6.2 The submission/contention on behalf of the pre-emptee that,          A
as in the present case, alongwith the pre-emption application, the pre-
emptors did not deposit the entire sale consideration with 10% additional
sale consideration, and therefore their pre-emption application was not
required to be further considered and no further enquiry as contemplated
under Section 9 of the Act, 1955 would be maintainable is concerned,
                                                                                 B
identical question came to be considered by this Court in the case of
Barasat Eye Hospital and Ors. (supra) wherein at paragraphs 23 to
33, it is observed and held as under: -
      “23. The historical perspective of this right was set forth by the
      Constitution Bench of this Court, as far back as in 1962, in Bhau
      Ram case [Bhau Ram v. Baij Nath Singh, AIR 1962 SC 1476].                  C
      The judgment in Bishan Singh case [Bishan Singh v. Khazan
      Singh, AIR 1958 SC 838] preceded the same, where different
      views, expressed in respect of this law of pre-emption, have been
      set out, and thereafter the position has been summarised. There
      is no purpose in repeating the same, but, suffice to say that the          D
      remedial action in respect of the right of pre-emption is a secondary
      right, and that too in the context of the “right being a very weak
      right”. It is in this context that it was observed that such a right
      can be defeated by all legitimate methods, such as a vendee
      allowing the claimant of a superior or equal right to be substituted
      in its place. This is not a right where equitable considerations           E
      would gain ground. In fact, the effect of the right to pre-emption
      is that a private contract inter se the parties and that too, in respect
      of land, is sought to be interfered with, and substituted by a
      purchaser who fortuitously has land in the vicinity to the land being
      sold. It is not a case of a co-sharer, which would rest on a different     F
      ground.
      24. The second aspect of importance is that given the aforesaid
      position, even the time period for making the deposit, under Section
      8(1) of the said Act, has been held to be sacrosanct, in view of the
      judgment of this Court in Gopal Sardar case [Gopal                         G
      Sardar v. Karuna Sardar, (2004) 4 SCC 252]. The very provision
      of Section 8(1) of the said Act came up for consideration and, as
      held in that case, if the time period itself cannot be extended and
      if Section 5 of the Limitation Act would not apply, while interpreting
      Section 8 of the said Act, then the requirement of deposit of the
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620      SUPREME COURT REPORTS                             [2022] 3 S.C.R.


A     amount along with the application, within the time stipulated is
      sacrosanct. The amount to be deposited is not any amount, as
      that would give a wide discretion to the pre-emptor, and any pre-
      emptor not able to pay the full amount, would always be able to
      say that, in his belief, the consideration was much lesser than
      what had been set out. If we read the judgment in Gopal Sardar
B
      case [Gopal Sardar v. Karuna Sardar, (2004) 4 SCC 252], in
      its true enunciation and spirit, there is sanctity attached to both,
      the amount and the time-frame. There cannot be sanctity to the
      time-frame, incapable of extension even by the Limitation Act,
      and yet, there be no sanctity to the amount.
C     25. In the context of the Bihar Land Reforms (Fixation of Ceiling
      Area and Acquisition of Surplus Land) Act, 1961, the recent view
      of this Court, in the context of the relevant provision (now repealed
      [ Vide Section 2 of the Bihar Land Reforms (Fixation of Ceiling
      Area and Acquisition of Surplus Land) (Amendment) Act, 2019.]),
D     itself puts a precondition for the exercise of the right of pre-emption,
      by requiring the deposit of the full stated purchase money and
      10% of the purchase amount. In our view, it makes no difference
      that the proviso in Section 16(3) of that Act states that “… no
      such application shall be entertained …”, in the context of filing
      of applications, without the deposit of the full amount. We may
E     say so because, if we turn to Section 8(1) of the said Act, the right
      of pre-emption is activated “on deposit of the consideration money
      together with the further sum of 10% of that amount”. Thus, unless
      such a deposit is made, the right of a pre-emptor is not even
      triggered off. The provisions of Section 8 are explicit and clear in
F     their terms.
      26. Now turning to Section 9 of the said Act, from which,
      apparently, some judgments of the Calcutta High Court have sought
      to derive a conclusion that an inquiry into the stated consideration
      is envisaged. However, the commencement of sub-section (1) of
G     Section 9 is with “on the deposit mentioned in sub-section (1) of
      Section 8 being made…” Thus, for anything further to happen
      under Section 9 of the said Act, the deposit as envisaged under
      Section 8 of the said Act has to be made. It is only then that the
      remaining portion of Section 9 of the said Act would come into
      play.
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ABDUL MATIN MALLICK v. SUBRATA BHATTACHARJEE                                621
      (BANERJEE) AND ORS. [M. R. SHAH, J.]

  27. The question now is as to what would be the nature of inquiry         A
  which has been envisaged to be carried out by the Munsif. If
  Section 9, as it reads, is perused, then first, the amount as mentioned
  in the sale transaction is to be deposited, as per sub-section (1) of
  Section 8 of the said Act. Once that amount is deposited, the next
  stage is for the Munsif to give notice of the application to the
                                                                            B
  transferee. The transferee thereafter, when enters appearance
  within the time specified, can prove the consideration money paid
  for the transfer “and other sums”. Such other sums, if any, are as
  “properly paid by him in respect of the land including any sum
  paid for annulling encumbrances created prior to the day of transfer,
  and rent or revenue, cesses or taxes for any period”. The inquiry,        C
  thus envisaged, is in respect of the amount sought to be claimed
  over and above the stated sale consideration in the document of
  sale because, in that eventuality further sums would have to be
  called for, from the pre-emptor. In that context, the additional
  amount would have to be deposited. Even in the event that a pre-
                                                                            D
  emptor raises doubts regarding the consideration amount, enquiry
  into the said aspect can be done only upon payment of the full
  amount, along with the application. In this aspect, the phrase “the
  remainder, if any, being refunded to the applicant” would include
  to mean the repayment of the initial deposit made along with the
  application, if considered to be excess. To give any other                E
  connotation to these sections would make both, the latter part of
  Section 8 of the said Act and the inception part of Section 9 of the
  said Act, otiose. We do not think such an interpretation can be
  countenanced.
  28. In our view, when the inquiry is being made by the Munsif,            F
  whether in respect of the stated consideration, or in respect of
  any additional amounts which may be payable, the pre-requisite
  of deposit of the amount of the stated consideration under Section
  8(1) of the said Act would be required to be fulfilled. The
  phraseology “the remainder, if any, being refunded to the applicant”
  would have to be understood in that context. The word “remainder”         G
  is in reference to any amount which, on inquiry about the stated
  consideration, may be found to have been deposited in excess,
  but it cannot be left at the own whim of the applicant to deposit
  any amount, which is deemed proper, but the full amount has to
  be deposited, and if found in excess on inquiry, be refunded to the       H
  applicant.
622      SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A     29. We are, thus, firmly of the view that the pre-requisite to even
      endeavour to exercise this weak right is the deposit of the amount
      of sale consideration and the 10% levy on that consideration, as
      otherwise, Section 8(1) of the said Act will not be triggered off,
      apart from making even the beginning of Section 9(1) of the said
      Act otiose.
B
      30. We are not inclined to construe the aforesaid provisions
      otherwise only on the ground that there are no so-called “penal
      provisions” included. The provisions of Sections 8 and 9 of the
      said Act must be read as they are. In fact, it is a settled rule of
      construction that legislative provisions should be read in their plain
C     grammatical connotation, and only in the case of conflicts between
      different provisions would an endeavour have to be made to read
      them in a manner that they co-exist and no part of the rule is
      made superfluous. [British India General Insurance Co.
      Ltd. v. Itbar Singh, AIR 1959 SC 1331] The interpretation, as
D     we have adopted, would show that really speaking, no part of
      either Section 8, or Section 9 of the said Act is made otiose. Even
      if an inquiry takes place in the aspect of stated consideration, on a
      plea of some fraud or likewise, and if such a finding is reached,
      the amount can always be directed to be refunded, if deposited in
      excess. However, it cannot be said that a discretion can be left to
E     the pre-emptor to deposit whatever amount, in his opinion, is the
      appropriate consideration, in order to exercise a right of pre-
      emption. The full amount has to be deposited.
      31. We may also note that, as a matter of fact, the pre-emptor in
      the present case i.e. the respondent has not filed any material to
F     substantiate even the plea on the basis of which, even if an inquiry
      was held, could a conclusion be reached that the stated
      consideration is not the market value of the land.
      32. We also believe that to give such a discretion to the pre-emptor,
      without deposit of the full consideration, would give rise to
G     speculative litigation, where the pre-emptor, by depositing smaller
      amounts, can drag on the issue of the vendee exercising rights in
      pursuance of the valid sale deed executed. In the present case,
      there is a sale deed executed and registered, setting out the
      consideration.
H
  ABDUL MATIN MALLICK v. SUBRATA BHATTACHARJEE                               623
        (BANERJEE) AND ORS. [M. R. SHAH, J.]

      33. We are of the view that the impugned order and the view            A
      adopted would make a weak right into a “speculative strong right”,
      something which has neither historically, nor in judicial
      interpretation been envisaged.”
       6.3 Therefore, deposit of the entire sale consideration with
additional 10% of the sale consideration alongwith the pre-emption           B
application is a statutory and mandatory requirement and it is a pre-
condition before any further enquiry as contemplated under Section 9 of
the Act is held. In the present 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 aforesaid
aspects have not been considered either by the First Appellate Court or      C
even by the High Court in this case.
       7. Now, so far as 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    D
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 aforesaid cannot be a ground not to comply with
the condition of deposit as required under Section 8 of the Act, 1955. At
the most, such a dispute can be the subject matter of an enquiry provided    E
under Section 9 of the Act. As observed hereinabove, 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.
                                                                             F
       8. Now, so far as 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   G
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
entire sale consideration with additional 10% of the sale consideration      H
624             SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A     along with the pre-emption application as required under Section 8 of
      the Act in the instant case.
             In view of the aforesaid admitted position, we have considered
      the submission on behalf of the appellant on non-fulfillment of the condition
      mentioned in Section 8 of the Act.
B            9. At this stage, it is required to be noted that even the High Court
      in the impugned judgment and order has permitted the pre-emptors to
      deposit the balance sale consideration. However, faced with the decision
      of this Court in the case of Barasat Eye Hospital and Ors. (supra)
      and in light of the observations made by us hereinabove that alongwith
C     the pre-emption application, the pre-emptors have to deposit the entire
      sale consideration with additional 10% and only thereafter the further
      enquiry can be conducted as per Section 9 of the Act, 1955 and therefore,
      unless and until the same is complied with, the pre-emption application
      would not be maintainable, the High Court is not justified in permitting
      the pre-emptors to now deposit the balance sale consideration with
D     additional 10% while deciding the revision application. Such a direction/
      permission/liberty would go against the intent of Section 8 of the Act,
      1955.
             10. In view of the above and for the reasons stated above, present
      appeals succeed. The impugned judgments and orders passed by the
E     High Court and that of the First Appellate Court are hereby quashed and
      set aside. Consequently, the pre-emption application submitted by the
      original pre-emptors – respondent Nos. 1 to 3 herein stands dismissed.
      Respondent Nos. 1 to 3 – original pre-emptors are permitted to withdraw
      the amount, which they might have deposited either alongwith the pre-
F     emption application and/or any subsequent deposit pursuant to the orders
      passed by the High Court.
            Present appeals are allowed accordingly. However, in the facts
      and circumstances of the case, there shall be no order as to costs.
             Pending application(s), if any also stands disposed of.
G
      Nidhi Jain                                                    Appeals allowed.
      (Assisted by : Tamana, LCRA)




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