- (1.) The question, therefore, in this revisional application is whether the pre-emptor is mandatorily required to deposit the consideration money together with a further sum of 10% of that amount at the time of making an application under Section 8 of the West Bengal Land Reforms Act, 1955. Before proceeding to deal with the above question, it would be profitable to quote the relevant provisions from the said Act which are reproduced as below: "Sec 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 raiyat in the plot of land, the bargadar in 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, apply to the Munsiff 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 a 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, or (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 of 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." 9. Revenue Officer 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 date of transfer, and rent or revenue, cesses 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 made 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 possession land adjoining the plot of land or bargadar. (3) 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."
(2.) The meaningful reading of the aforesaid provisions makes abundantly clear that the right to preempt is conferred upon the bargadar in the plot of land, any co-sharer of the raiyat in the plot of land and any raiyat possessing land adjoining to such plot of land. Different periods of limitation are also provided in the said section for different classes of the person on whom right to preempt is given. If both the provisions are harmoniously construed, it emerges that any of the person included therein may apply to the Munsif having territorial jurisdiction for transfer of the portion or share of the plot of land of a raiyat, if transferred to any person other than the co-sharer of the raiyat in a plot of land for transfer of the said portion or the share of the plot of land to him subject to the limit mentioned in Section 14M on deposit of the consideration money together with further sum of 10% of that amount. According to the petitioner, once the deposit of consideration money together with further sum of 10% of that amount is the requirement under Section 8(1) of the said Act, it is to be construed that such deposit is mandatory, the moment an application is filed before the Munsif having territorial jurisdiction seeking preemption. In other words, the application under Section 8(1) of the said Act must be accompanied by the deposit of the consideration money and the further sum of 10% of that amount as the failure to comply the said provision would attract dismissal thereof.
(3.) According to Mr. Banerjee, the expression "apply" for transfer on deposit of consideration money is imperative.;