Prasenjit Mandal, J. - (1.) THIS application is at the instance of the opposite party no.1 and is directed against the Order No.42 dated May 29, 2010 passed by the learned Civil Judge (Junior Division), 2nd Court, Uluberia in L.R. Case No.42 of 2006 under Section 8 of the W.B.L.R. Act, 1955.
(2.) THE short fact is that the petitioner / opposite party herein instituted a case being L.R. Case No.42 of 2006 under Sections 8 and 9 of the West Bengal Land Reforms Act, 1955 against the petitioner and other opposite party before the appropriate Court. He has claimed pre-emption on the ground that he is a co-sharer of the plot in case and that the opposite party no.1 / petitioner herein is a stranger to the plot in case and all of a sudden on August 17, 2002, the petitioner herein came to the plot in case for fishing. At that time, the opposite party raised objection and he knew that the petitioner had purchased the entire share of the opposite party no.2 of the said case and that an inflated price had been mentioned in the deed of sale. For that reason, he has filed the said case for pre-emption. THE petitioner is contesting the said case and he filed an application praying for dismissal of the case on the ground of limitation. That application was rejected by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the said application for preemption is barred by limitation and whether the learned Trial Judge is justified in passing the impugned order. Upon hearing the learned advocate for the petitioner and on going through the materials on record, I find that the opposite party no.1 instituted the said proceeding under Sections 8 and 9 of the W.B.L.R. Act, 1955 claiming himself as a co-sharer of the plot in case. It is his contention that he got the information of sale only on August 17, 2002, when the petitioner came to the plot in case for the purpose of fishing net. So, he filed the application for pre-emption on January 21, 2003. It may be noted herein that the land in case had been sold to the petitioner herein by deed of sale dated July 13, 2002 and the said deed was entered into the Volume on August 14, 2002. So, the registration was to be treated as complete on August 14, 2002. The opposite party no.1 was, therefore, required to claim pre-emption within a period of four months from the date of entry in the Volume and when no notice was served, he is to file the same within a period of four months from the date of knowledge. Admittedly, the opposite party no.1 got knowledge of the transfer on August 17, 2002. So, he was required to file the application for pre-emption within four months from August 17, 2002. The instant application for pre-emption as noted above was filed after lapse of four months from the date against 17, 2002. Section 8 of the W.B.L.R. clearly lays down that an application for pre-emption by a person claiming to be a co-sharer must be filed within a period of four months from the aforesaid day, that is, August 17, 2002. Section 29(2) of the Limitation Act, 1963 clearly lays down that when any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if, such periods were the periods prescribed by the Schedule and for that purpose of determining any period of limitation prescribed for any suit, appeal or application by the special or local law, the provisions contained in Section 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. Therefore, according to the provisions of the said Section of the Limitation Act, the opposite party no.1 is not entitled to get another extension of time and so, the provisions of Section 5 of the Limitation Act shall not apply in respect of the pre-emption procedure. The above period is mandatory and no relaxation could be granted to the opposite party.
(3.) MR. Pradip Roy, learned Advocate appearing for the petitioner has referred to the decision of Gopal Sardar v. Karuna Sardar reported in (2004)4 SCC 252 and thus, he submits that Section 5 of the Limitation Act will not be applicable in respect of a proceeding under Section 8 of the W.B.L.R. Act, 1955. For convenience paragraph no.13 of the said decision is quoted below:- 13. Section 8 of the Act prescribes definite period of limitation of three months or four months, as the case may be, for initiating proceedings for enforcement of right of pre-emption by different categories of people with no provision made for extension or application of Section 5 of the Limitation Act. When in the same statute in respect of various other provisions relating to filing of appeals and revisions, specific provisions are made so as to give benefit of Section 5 of the Limitation Act and such provision is not made to an application to be made under Section 8 of the Act, it obviously and necessarily follows that the legislature consciously excluded the application of Section 5 of the Limitation Act. Considering the scheme of the Act being a self-contained code in dealing with the matters arising under Section 8 of the Act and in the light of the aforementioned decisions of this Court in thecase of Hukumdev Narain Yadav, Anwari Basavaraj Patil and Parson Tools it should be construed that there has been exclusion of application of Section 5 of the Limitation Act to an application under Section 8 of the Act. In view of what is stated above, the non-applicability of Section 5 of the Limitation Act to the proceedings under Section 8 of the Act is certain and sufficiently clear. Section 29(2) of the Limitation Act as to the express exclusion of Section 5 of the Limitation Act and the specific period of limitation prescribed under Section 8 of the Act without providing for either extension of time or application of Section 5 of the Limitation Act or its principles can be read together harmoniously. Such reading does not lead to any absurdity or unworkability or frustrating the object of the Act. At any rate, in the light of the three-Judge Bench decision of this Court in Hukumdev Narain Yadav case and subsequently followed in Anwari Basavaraj Patil case even though special or local law does not state in so many words expressly that Section 5 of the Limitation Act is not applicable to the proceedings under those Act, from the scheme of the Act and having regard to various provisions such express exclusion could be gathered. Thus, a conscious and intentional omission by the legislature to apply Section 5 of the Limitation Act to the proceedings under Section 8 of the Act, looking to the scheme of the Act, nature of right of pre-emption and express application of Section 5 of the Limitation Act to the other provisions under the Act, itself means and amounts to ?express exclusion? of it satisfying the requirement of Section 29(2) of the Limitation Act. In that view of the matter, I am of the opinion that the learned Trial Judge was not justified in rejecting the application of the petitioner herein. The learned Trial Judge should not wait till the evidence is recorded when there is an express provision as to the limitation.;