ABDUL MATIN MALLICK versus SUBRATA BHATTACHARJEE (BANERJEE) AND ORS. on 5 May 2022

[2022] 3 S.C.R. 611

ABDUL MATIN MALLICK

v.

SUBRATA BHATTACHARJEE (BANERJEE) AND ORS.

(Civil Appeal no. 3499 of 2022)

MAY 05, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

West Bengal Land Reforms Act, 1955: s.5(5), 8, 9 – Right ofpurchase by co-sharer or contiguous tenant – Pre-emptionapplication – Maintainability of – Vendors of the pre-empteetransferring their entire share in the property to person other thana raiyat in the said plot of land without notice to the pre-emptors –Pre-emption application by respondents-pre-emptor to exercise theirright as pre-emptors u/s 8, allowed by the first appellate court –However, the High Court while upholding the said order, grantedtime to the pre-emptors to deposit the balance consideration moneytogether with further sum of 10% of that amount – On appeal, held: Right of pre-emption is a very weak right – Any provision to enforcesuch a right must, be strictly construed – Deposit of the entire saleconsideration with additional 10% of the sale considerationalongwith the pre-emption application is a statutory and mandatoryrequirement – It is a pre-condition before any further enquiry ascontemplated u/s. 9 is held – On facts, the pre-emptors had notdeposited the entire sale consideration with additional 10% of thesale consideration alongwith the pre-emption application – Firstappellate court or even the High Court did not consider the saidaspect – Unless and until the same is complied with, the pre-emptionapplication would not be maintainable – High Court not justifiedin permitting the pre-emptors to deposit the balance saleconsideration while deciding the revision application – Suchdirection/permission/liberty would be against the intent of s. 8 –Thus, the orders passed by the High Court and that of the firstappellate court quashed and set aside – Pre-emption applicationfiled 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

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Asuch a right must, thus, be strictly construed. The deposit of theentire sale consideration with additional 10% of the saleconsideration alongwith the pre-emption application is a statutoryand mandatory requirement and it is a pre-condition before anyfurther enquiry as contemplated under Section 9 of the WestBengal Land Reforms Act, 1955 is held. In the instant case,Badmittedly, the pre-emptors had not deposited the entire saleconsideration with additional 10% of the sale considerationalongwith the pre-emption application. The said aspects have notbeen considered either by the First Appellate Court or even bythe High Court. [Para 6.1, 6.3][618-G-H; 623-B-C]

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1.2. The submission on behalf of the pre-emptors that theybonafidely believed that the sale consideration mentioned in thesale deed is in favour of the vendee, who is an outsider (outsidethe family) was higher than the actual sale consideration andtherefore, they did not deposit the entire sale consideration withDadditional 10% of the sale consideration alongwith the pre-emption application is concerned, it is to be noted that the saidcannot be a ground not to comply with the condition of deposit asrequired under Section 8 of the Act, 1955. Such a dispute can bethe subject matter of an enquiry provided under Section 9 of theAct. The enquiry under Section 9 with respect to the saleEconsideration in the sale deed would be only after the conditionof deposit of entire sale consideration with additional 10% asprovided under Section 8 of the Act has been complied with. [Para7][623-D-F]

1.3. The submission on behalf of the pre-emptors that theFcontention of non-deposit of the entire sale consideration withadditional 10% of the sale consideration by the pre-emptors wasnot raised before the Courts below and has been raised for thefirst time before this Court, and therefore the same be notconsidered/permitted to be raised now, is concerned, it is to beGnoted that the said contention would go to the root of the matteron maintainability of the pre-emption application as withoutcomplying with the statutory requirements as mentioned underSection 8 of the Act, 1955, the same is not maintainable. It is anadmitted position that the pre-emptors had not deposited the H

entire sale consideration with additional 10% of the saleconsideration along with the pre-emption application as requiredunder 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 andorder has permitted the pre-emptors to deposit the balance saleconsideration. However, faced with the decision of this Court inthe case of Barasat Eye Hospital and Ors. and in light of theobservations that alongwith the pre-emption application, the pre-emptors have to deposit the entire sale consideration withadditional 10% and only thereafter the further enquiry can beconducted as per Section 9 of the Act, 1955 and therefore, unlessand until the same is complied with, the pre-emption applicationwould not be maintainable, the High Court is not justified inpermitting the pre-emptors to now deposit the balance saleconsideration with additional 10% while deciding the revisionapplication. Such a direction/permission/liberty would go againstthe 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 theHigh Court and that of the first appellate court are quashed andset aside. Consequently, the pre-emption application submittedby the original pre-emptors-respondent Nos. 1 to 3 is dismissed.Respondent Nos. 1 to 3-original pre-emptors are permitted towithdraw the amount, which they might have deposited eitheralongwith the pre-emption application and/or any subsequentdeposit pursuant to the orders passed by the High Court. [Para10][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)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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[2022] 3 S.C.R.

ACase Law Reference

(2019) 19 SCC 767[1959] SCR 878

relied onPara 6.1, 9referred toPara 6

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3499Bof 2022.

From the Judgment and Order dated 17.04.2019 of the High Courtat Calcutta in Co. No. 4266 of 2016.

With

Civil Appeal No. 3500 of 2022.C

Anand, Ms. Rajeshri N. Reddy, Dibyadyuti Banerjee, AbhijitSengupta, Kumar Neeraj, Advs. for the Appellant.

Mainak Bose, Sr. Adv., Pawan Kumar Ray, Shreshth Nanda, RijuTalukdar, Deepak Goel, Advs. for the Respondents.

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The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Calcutta in C.O. NO. 4266 ofE2016 by which the High Court has dismissed the said writ petitionpreferred by the appellant herein and has confirmed the order passed bythe first Appellate Court allowing the application submitted by therespondents herein – pre-emptors, the original respondents – revisionistsbefore the High Court, the appellant herein - pre-emptee has preferredthe present appeal arising out of SLP (C) No. 5394 of 2022.F

1.1 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Calcutta in C.O. NO. 1153 of2016 by which the High Court has allowed the said writ petition preferredby the respondents herein and has revived the execution case filed bythe respondents for implementing the pre-emption order and has furtherGdirected that the executing court shall direct possession to be handedover to the pre-emptors in respect of the property in question positivelywithin 31.08.2021, the appellant herein – pre-emptee has preferred thepresent appeal arising out of SLP (C) No. 4261 of 2022.

2. The facts leading to the present appeals in nutshell are as under:- H

2.1 That the disputed property in question, which was the subjectmatter of application for pre-emption before the Appropriate Authorityunder the West Bengal Land Reforms Act, 1955 (hereinafter referredto as the “Act, 1955”) belonged to one Khudiram Bhattacharya, whodied on 17.04.2001 leaving behind him, surviving his widow PurnimaBhattacharya who also died on 14.08.2001 and three sons namelySubrata, Debabrata and Ratan (the pre-emptors herein) and two daughtersKalyani and Alpana, the vendors of the pre-emptee (appellant herein).On the death of Khudiram Bhattacharya and his widow, the aforesaidthree sons and two daughters inherited the property in question eachhaving undivided 1/5[th] share therein. The daughters of the original owner- Khudiram Bhattacharya sold their undivided 2/5[th] share in the propertyin question to the appellant herein - pre-emptee - Abdul Matin Mallickvide registered sale deed dated 23.11.2011. The sale in favour of theappellant by the daughters of the said Khudiram Bhattacharya was soughtto be pre-empted by the sons of said Khudiram Bhattacharya on theground that their sisters have transferred their undivided share in theproperty in question to the appellant, a stranger to the said propertywithout serving statutory notice under Sub-Section (5) of Section 5 ofthe Act, 1955. The said application under Section 8 of the Act, 1955 wasregistered as Misc. Pre-emption Case No. 8 of 2012 before the learnedTrial Court.

2.2 The learned Trial Court dismissed the said application for pre-emption as not maintainable mainly on the ground that since the vendorsof 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 notmaintainable.

2.3 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Trial Court dismissing the pre-emption application,pre-emptors preferred the appeal before the First Appellate Court beingMisc. Appeal No. 7 of 2014. The Appellate Court allowed the said appealand set aside the order passed by the learned Trial Court and consequentlyallowed the application for pre-emption holding that even when a co-sharer of a plot of land transfers his entire share to any person otherthan a raiyat in the said plot of land, the application for pre-emptionunder Section 8 of the Act, 1955 would be maintainable.

2.4 Feeling aggrieved and dissatisfied with the order passed bythe First Appellate Court allowing the pre-emption application, the A

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Apurchaser – pre-emptee filed the present revision application before theHigh Court.

2.5 By the impugned judgment and order, the High Court hasdismissed the said revision application and has not interfered with thejudgment and order passed by the First Appellate Court, however, hasBgranted the time to the pre-emptors to deposit the balance considerationmoney together with further sum of 10% of that amount by further periodof 30 days.

2.6 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the purchaser – pre-emptee hasCpreferred the present appeals.

3. Shri Anand, learned counsel appearing on behalf of the appellanthas vehemently submitted that in the facts and circumstances of thecase, the High Court has committed a grave error in dismissing therevision application and not interfering with the order passed by the FirstDAppellate Court allowing the pre-emption application.

3.1 It is vehemently submitted by learned counsel appearing onbehalf of the appellant that as such there was a non-compliance of themandatory requirement of the deposit of the entire sale considerationwith a further sum of 10% of the sale consideration as required underESection 8 of the Act. It is contended that it is an admitted position that atthe time of submitting the application for pre-emption, the pre-emptorsdid 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 isFconsidered and further enquiry is conducted as required under Section 9of the Act, deposit of the entire sale consideration with 10% more of thesale consideration is a condition precedent. That unless and until the saidcondition is satisfied and/or fulfilled the pre-emption application shall notbe maintainable at all; that only thereafter the further enquiry ascontemplated under Section 9 of the Act, 1955 shall have to be conducted.GThat in the present case, there is non-compliance of the statutorymandatory 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 hasheavily relied upon the decision of this Court in the case of Barasat EyeH

Hospital and Ors. Vs. Kaustabh Mondal, (2019) 19 SCC 767 (paras23 to 33).

3.4 Making the above submissions and relying upon the abovedecision, it is prayed to allow the present appeals.

4. Present appeals are opposed by Shri Mainak Bose, learnedSenior Advocate appearing on behalf of the contesting respondents. It isvehemently submitted that as such the learned Trial Court dismissed thepre-emption application as not maintainable on the ground that since thevendors of the pre-emptee have transferred their entire share in the suitproperty, the application for pre-emption under Section 8 of the Act,1955 would not be maintainable. It is submitted that however, in view ofthe 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 araiyat in the said plot of land, the application for pre-emption under Section8 of the Act, 1955 would be maintainable. It is therefore submitted thatthe First Appellate Court rightly set aside the order passed by the learnedTrial Court and allowed the pre-emption application, which is rightly notinterfered with by the High Court.

4.1 It is submitted that whether an application under Section 8would be maintainable when a co-sharer of a plot of land transfers hisentire share to any person other than a raiyat in the said plot of land, isanswered in the affirmative by the Larger Bench of the High Court inthe 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 theappellant that as the pre-emptors did not deposit the entire saleconsideration with 10% higher than the sale consideration and therefore,the pe-emption application was not maintainable is concerned, it isvehemently submitted that as such the said contention was not raisedeither before the Courts below and/or even before the High Court, andit has been raised for the first time before this Court.

4.3 It is further submitted that alongwith the pre-emptionapplication, the pre-emptors did not deposit the entire sale considerationwith 10% additional sale consideration as the pre-emptors bonafidebelieved that the sale consideration mentioned in the sale deed was on a A

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Ahigher side. It is submitted that thereafter the entire sale considerationwith additional 10% has been deposited by the pre-emptors pursuant tothe order passed by the High Court. Therefore, even the conditionmentioned in Section 8 has now been complied with; therefore, thecontention raised now regarding non-deposit of the entire saleconsideration with 10% additional sale consideration shall no longer beBavailable to the appellant.4.4 Making the above submissions, it is prayed to dismiss thepresent appeals.

5. We have heard the learned counsel for the respective partiesCat length.

6. At this outset, it is required to be noted that pre-emptorssubmitted the application before the learned Trial Court under Section 5of the Act, 1955, in respect of the share sold by their sisters. Therefore,the contesting respondents herein – the original pre-emptors sought toDexercise their right as pre-emptors under the provisions of the Act, 1955.The right of the pre-emption has been elaborately dealt with andconsidered by a Four Judge Bench of this Court in the case of BishanSingh Vs. Khazan Singh, AIR 1958 SC 838, wherein at paragraph11, it is observed and held as under: - E“11. … (1) The right of pre-emption is not a right to the thing soldbut a right to the offer of a thing about to be sold. This right iscalled the primary or inherent right. (2) The pre-emptor has asecondary right or a remedial right to follow the thing sold. (3) Itis a right of substitution but not of re-purchase i.e. the pre-emptortakes the entire bargain and steps into the shoes of the originalFvendee. (4) It is a right to acquire the whole of the property soldand not a share of the property sold. (5) Preference being theessence of the right, the plaintiff must have a superior right to thatof the vendee or the person substituted in his place. (6) The rightbeing a very weak right, it can be defeated by all legitimateGmethods, such as the vendee allowing the claimant of a superioror equal right being substituted in his place.”

6.1 Thus, as observed and held by this Court in the aforesaidjudgment, the right of pre-emption is “a very weak right”. That being thecharacter of the right, any provision to enforce such a right must, thus,be strictly construed. [Barasat Eye Hospital and Ors. (supra)]H

6.2 The submission/contention on behalf of the pre-emptee that,as in the present case, alongwith the pre-emption application, the pre-emptors did not deposit the entire sale consideration with 10% additionalsale consideration, and therefore their pre-emption application was notrequired to be further considered and no further enquiry as contemplatedunder Section 9 of the Act, 1955 would be maintainable is concerned,identical question came to be considered by this Court in the case ofBarasat Eye Hospital and Ors. (supra) wherein at paragraphs 23 to33, it is observed and held as under: -

“23. The historical perspective of this right was set forth by theConstitution Bench of this Court, as far back as in 1962, in BhauRam case [Bhau Ram v. Baij Nath Singh, AIR 1962 SC 1476].The judgment in Bishan Singh case [Bishan Singh v. KhazanSingh, AIR 1958 SC 838] preceded the same, where differentviews, expressed in respect of this law of pre-emption, have beenset out, and thereafter the position has been summarised. Thereis no purpose in repeating the same, but, suffice to say that theremedial action in respect of the right of pre-emption is a secondaryright, and that too in the context of the “right being a very weakright”. It is in this context that it was observed that such a rightcan be defeated by all legitimate methods, such as a vendeeallowing the claimant of a superior or equal right to be substitutedin its place. This is not a right where equitable considerationswould gain ground. In fact, the effect of the right to pre-emptionis that a private contract inter se the parties and that too, in respectof land, is sought to be interfered with, and substituted by apurchaser who fortuitously has land in the vicinity to the land beingsold. It is not a case of a co-sharer, which would rest on a differentground.

24. The second aspect of importance is that given the aforesaidposition, even the time period for making the deposit, under Section8(1) of the said Act, has been held to be sacrosanct, in view of thejudgment of this Court in Gopal Sardar case [GopalSardar v. Karuna Sardar, (2004) 4 SCC 252]. The very provisionof Section 8(1) of the said Act came up for consideration and, asheld in that case, if the time period itself cannot be extended andif Section 5 of the Limitation Act would not apply, while interpretingSection 8 of the said Act, then the requirement of deposit of the A

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amount along with the application, within the time stipulated issacrosanct. The amount to be deposited is not any amount, asthat would give a wide discretion to the pre-emptor, and any pre-emptor not able to pay the full amount, would always be able tosay that, in his belief, the consideration was much lesser thanwhat had been set out. If we read the judgment in Gopal Sardarcase [Gopal Sardar v. Karuna Sardar, (2004) 4 SCC 252], inits true enunciation and spirit, there is sanctity attached to both,the amount and the time-frame. There cannot be sanctity to thetime-frame, incapable of extension even by the Limitation Act,and yet, there be no sanctity to the amount.

25. In the context of the Bihar Land Reforms (Fixation of CeilingArea and Acquisition of Surplus Land) Act, 1961, the recent viewof this Court, in the context of the relevant provision (now repealed[ Vide Section 2 of the Bihar Land Reforms (Fixation of CeilingArea and Acquisition of Surplus Land) (Amendment) Act, 2019.]),itself puts a precondition for the exercise of the right of pre-emption,by requiring the deposit of the full stated purchase money and10% of the purchase amount. In our view, it makes no differencethat the proviso in Section 16(3) of that Act states that “… nosuch application shall be entertained …”, in the context of filingof applications, without the deposit of the full amount. We maysay so because, if we turn to Section 8(1) of the said Act, the rightof pre-emption is activated “on deposit of the consideration moneytogether with the further sum of 10% of that amount”. Thus, unlesssuch a deposit is made, the right of a pre-emptor is not eventriggered off. The provisions of Section 8 are explicit and clear intheir terms.

26. Now turning to Section 9 of the said Act, from which,apparently, some judgments of the Calcutta High Court have soughtto derive a conclusion that an inquiry into the stated considerationis envisaged. However, the commencement of sub-section (1) ofSection 9 is with “on the deposit mentioned in sub-section (1) ofSection 8 being made…” Thus, for anything further to happenunder Section 9 of the said Act, the deposit as envisaged underSection 8 of the said Act has to be made. It is only then that theremaining portion of Section 9 of the said Act would come intoplay.

27. The question now is as to what would be the nature of inquirywhich has been envisaged to be carried out by the Munsif. IfSection 9, as it reads, is perused, then first, the amount as mentionedin the sale transaction is to be deposited, as per sub-section (1) ofSection 8 of the said Act. Once that amount is deposited, the nextstage is for the Munsif to give notice of the application to thetransferee. The transferee thereafter, when enters appearancewithin the time specified, can prove the consideration money paidfor the transfer “and other sums”. Such other sums, if any, are as“properly paid by him in respect of the land including any sumpaid for annulling encumbrances created prior to the day of transfer,and rent or revenue, cesses or taxes for any period”. The inquiry,thus envisaged, is in respect of the amount sought to be claimedover and above the stated sale consideration in the document ofsale because, in that eventuality further sums would have to becalled for, from the pre-emptor. In that context, the additionalamount would have to be deposited. Even in the event that a pre-emptor raises doubts regarding the consideration amount, enquiryinto the said aspect can be done only upon payment of the fullamount, along with the application. In this aspect, the phrase “theremainder, if any, being refunded to the applicant” would includeto mean the repayment of the initial deposit made along with theapplication, if considered to be excess. To give any otherconnotation to these sections would make both, the latter part ofSection 8 of the said Act and the inception part of Section 9 of thesaid Act, otiose. We do not think such an interpretation can becountenanced.

28. In our view, when the inquiry is being made by the Munsif,whether in respect of the stated consideration, or in respect ofany additional amounts which may be payable, the pre-requisiteof deposit of the amount of the stated consideration under Section8(1) of the said Act would be required to be fulfilled. Thephraseology “the remainder, if any, being refunded to the applicant”would have to be understood in that context. The word “remainder”is in reference to any amount which, on inquiry about the statedconsideration, may be found to have been deposited in excess,but it cannot be left at the own whim of the applicant to depositany amount, which is deemed proper, but the full amount has tobe deposited, and if found in excess on inquiry, be refunded to theapplicant.

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29. We are, thus, firmly of the view that the pre-requisite to evenendeavour to exercise this weak right is the deposit of the amountof sale consideration and the 10% levy on that consideration, asotherwise, Section 8(1) of the said Act will not be triggered off,apart from making even the beginning of Section 9(1) of the saidAct otiose.

30. We are not inclined to construe the aforesaid provisionsotherwise only on the ground that there are no so-called “penalprovisions” included. The provisions of Sections 8 and 9 of thesaid Act must be read as they are. In fact, it is a settled rule ofconstruction that legislative provisions should be read in their plaingrammatical connotation, and only in the case of conflicts betweendifferent provisions would an endeavour have to be made to readthem in a manner that they co-exist and no part of the rule ismade superfluous. [British India General Insurance Co.Ltd. v. Itbar Singh, AIR 1959 SC 1331] The interpretation, aswe have adopted, would show that really speaking, no part ofeither Section 8, or Section 9 of the said Act is made otiose. Evenif an inquiry takes place in the aspect of stated consideration, on aplea of some fraud or likewise, and if such a finding is reached,the amount can always be directed to be refunded, if deposited inexcess. However, it cannot be said that a discretion can be left to the pre-emptor to deposit whatever amount, in his opinion, is theappropriate 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 inthe present case i.e. the respondent has not filed any material tosubstantiate even the plea on the basis of which, even if an inquirywas held, could a conclusion be reached that the statedconsideration 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 tospeculative litigation, where the pre-emptor, by depositing smalleramounts, can drag on the issue of the vendee exercising rights inpursuance of the valid sale deed executed. In the present case,there is a sale deed executed and registered, setting out theconsideration.

33. We are of the view that the impugned order and the viewadopted would make a weak right into a “speculative strong right”,something which has neither historically, nor in judicialinterpretation been envisaged.”

6.3 Therefore, deposit of the entire sale consideration withadditional 10% of the sale consideration alongwith the pre-emptionapplication is a statutory and mandatory requirement and it is a pre-condition before any further enquiry as contemplated under Section 9 ofthe Act is held. In the present case, admittedly, the pre-emptors had notdeposited the entire sale consideration with additional 10% of the saleconsideration alongwith the pre-emption application. The aforesaidaspects have not been considered either by the First Appellate Court oreven by the High Court in this case.

7. Now, so far as the submission on behalf of the pre-emptorsthat they bonafidely believed that the sale consideration mentioned inthe sale deed is in favour of the vendee, who is an outsider (outside thefamily) was higher than the actual sale consideration and therefore, theydid not deposit the entire sale consideration with additional 10% of thesale consideration alongwith the pre-emption application is concerned, itis to be noted that the aforesaid cannot be a ground not to comply withthe condition of deposit as required under Section 8 of the Act, 1955. Atthe most, such a dispute can be the subject matter of an enquiry providedunder Section 9 of the Act. As observed hereinabove, the enquiry underSection 9 with respect to the sale consideration in the sale deed wouldbe only after the condition of deposit of entire sale consideration withadditional 10% as provided under Section 8 of the Act has been compliedwith.

8. Now, so far as the submission on behalf of the pre-emptorsthat the contention of non-deposit of the entire sale consideration withadditional 10% of the sale consideration by the pre-emptors was notraised before the Courts below and has been raised for the first timebefore this Court, and therefore the same be not considered/permittedto be raised now, is concerned, it is to be noted that the said contentionwould go to the root of the matter on maintainability of the pre-emptionapplication as without complying with the statutory requirements asmentioned under Section 8 of the Act, 1955, the same is not maintainable.It is an admitted position that the pre-emptors had not deposited theentire sale consideration with additional 10% of the sale consideration A

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Aalong with the pre-emption application as required under Section 8 ofthe Act in the instant case.

In view of the aforesaid admitted position, we have consideredthe submission on behalf of the appellant on non-fulfillment of the conditionmentioned in Section 8 of the Act.

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9. At this stage, it is required to be noted that even the High Courtin the impugned judgment and order has permitted the pre-emptors todeposit the balance sale consideration. However, faced with the decisionof this Court in the case of Barasat Eye Hospital and Ors. (supra)and in light of the observations made by us hereinabove that alongwithCthe pre-emption application, the pre-emptors have to deposit the entiresale consideration with additional 10% and only thereafter the furtherenquiry can be conducted as per Section 9 of the Act, 1955 and therefore,unless and until the same is complied with, the pre-emption applicationwould not be maintainable, the High Court is not justified in permittingthe pre-emptors to now deposit the balance sale consideration withDadditional 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, presentappeals succeed. The impugned judgments and orders passed by theEHigh Court and that of the First Appellate Court are hereby quashed andset aside. Consequently, the pre-emption application submitted by theoriginal pre-emptors – respondent Nos. 1 to 3 herein stands dismissed.Respondent Nos. 1 to 3 – original pre-emptors are permitted to withdrawthe amount, which they might have deposited either alongwith the pre-Femption application and/or any subsequent deposit pursuant to the orderspassed by the High Court.Present appeals are allowed accordingly. However, in the factsand circumstances of the case, there shall be no order as to costs.

Pending application(s), if any also stands disposed of.

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Nidhi Jain(Assisted by : Tamana, LCRA)

Appeals allowed.

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