BHUBAN CHANDRA SAMANTA Vs. JAMINI BHUSAN KAR
LAWS(CAL)-1970-3-10
HIGH COURT OF CALCUTTA
Decided on March 09,1970

BHUBAN CHANDRA SAMANTA Appellant
VERSUS
JAMINI BHUSAN KAR Respondents

JUDGEMENT

- (1.) These six Rules are directed against the Order of learned Munsif, 3rd Court, Midnapur dismissing the applications of the petitioner for pre-emption under section 3(1) of the West Bengal Land Reforms Act, 1956 hereinafter referred to as 'the Act'.
(2.) The opposite party No.2, Smt. Jaminibala Dassi was the sole owner of the occupancy raiyati holding recorded in the record of rights as interest No. 58. On April 6, 1964, the opposite party No.2 executed six kobalas in favour of six different persons, thereby transferring the holding in specific portions in their favour. The kobalas were registered on the same day. The petitioner claiming to be a raiyat possessing land adjoining the holding in question filed applications for pre-emption against the six transferees, under section 8(1) of the Act. The Revenue Officer, who hoard the said applications by his order passed under section 9 of the Act, allowed the claim of the petitioner for pre-emption. On appeals preferred by the transferees against the said order of the Revenue Officer, the learned Munsif dismissed the applications of the petitioner on the ground that as there was no co-sharer of the holding which was owned solely by the opposite party No.2, the petitioner had no right of pre-emption under section 8 of the Act.
(3.) Mr. Bhunia, learned Advocate for the petitioner, challenged before me the said finding of the learned Munsif and strenuously urged that the right of the pre-emption of the petition or did not depend on the holding being occupied by co-sharers. Section 8(1) of the Act provides that: - "if a portion or share of a holding of a raiyat is transferred to any person other than a co-sharer in the holding, any co-sharer raiyat of the holding may within three months of the service of the notice give under sub-section (5) of section 5, or any raiyat possessing land adjoining such holding may, within four months of date of such transfer, apply to the Revenue Officer specially empowered by the State Government in this behalf, for transfer of the said portion or share of the holding to him, subject to the limit mentioned in sub-section (3) of section 4, on deposit of the consideration money together with a further sum of 10 per cent of that amount." In view of the expression "any person other than a co-sharer", the section contemplates that the holding must be hold under joint ownership and not under the ownership of single individual. This is also apparent from the first proviso to section 8(1) of the Act, which provides that a co-sharer raiyat will have preferential right as against a contiguous tenant to have such portion or share of the holding transferred to him, where both of them are applicants at the same time. The section restricts the owner's unfettered right of sale and compels him to sell the share or portion of the holding either to his co-sharer or to contiguous tenant, as the case may be. It is now an accepted legal principle that where the provision of a statute providing for right of pre-emption shackles the freedom of transfer, the same should be strictly construed and, unless a case strictly within the provision, claim for pre-emption should not be allowed. Section 8(1) of the Act construed in the light of the aforesaid legal principle, leaves no room for doubt that the holding, a share or portion of which is transferred, must be hold under joint ownership. The contention of Mr. Bhunia that even though there is no co-sharer of the holding the contiguous raiyat has the right of pre-emption in case of a transfer of a share or portion of the holding, is overruled.;


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