- (1.)Heard the learned Advocates appearing for the parties.
(2.)This application under Article 227 of the Constitution of India was filed on assailing the order dated 16th September, 2005 passed by learned Civil Judge (Junior Division), Jalpaiguri in Misc. (Pre-emption) Case No. 34 of 2004 whereby and whereunder application praying injunction to restrain the respondents from executing any sale deed was refused. This pre-emption application was filed by the petitioner admittedly at the pre-matured stage, namely, when the registration of the document was not at all completed in terms of Section 61 of the Registration Act, which provides that registration would be completed on fulfillment of all the formalities in terms of the said Act. Reliance may be placed to the judgment passed in the case Ram Saran Lall & Ors. v. Mst. Domini Kuer & Ors., reported in AIR 1961 SC 1747 and Hiralal Aggarwal v. Rampadarath Singh, reported in AIR 1969 SC 244,
(3.)Right of pre-emption is a statutory right granted under Section 8 of the West Bengal Land Reforms Act, which, however, provides a statutory condition that right of pre-emption in respect of any holding now after the amendment it has been a plot would accrue by any co-sharer or by the owner of the contiguous land. Section 8 of the Land Reforms Act reads to this effect:
"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 [Munsif 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 or 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 or a raiyat in the 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, (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."