Item v. Kalpana Halder & Ors.

2022 affirming the judgment and order dated 7th December, 2021 passed by the learned Civil Judge (Junior Division), 2nd Court, Diamond Harbour in Misc. Case No. 27 of 2008. Mr. Das, learned Advocate appearing for the petitioner submits that the petitioner constructed a house pursuant to benefits extended by the Government under the Indira Awas Yojna. He thus submits that the right of preemption stood perished with the construction made by the petitioner on the property in question. The opposite party filed an application under Sections 8 & 9 of the West Bengal Land Reforms Act. The petitioner purchased the property by a registered deed dated 18th March, 2008. The opposite party filed a misc. case under Sections 8 and 9. Facts giving rise to the Civil Revision Application in 2 a nut shell is as follows-The heirs of Kanailal Halder namely Deboprasad Halder, Dilip Halder, Basanti Sapui and Nandarani Halder transferred 10 decimals of land from plot no. 697 and 4 decimals of land from plot no. 698 to Biswanath Halder by a registered deed of sale dated

18.03.2008 at a consideration of Rs. 40,000. Dulal Halder and Bhajan Kumar Halder filed the Misc. Case under Section 8 of the West Bengal Land Reforms Act to pre-empt the sale in favour of Biswanath Halder vide registered sale deed dated

18.03.2008. The application for pre-emption was filed on the ground of contiguous tenant as well as co-sharer. Petitioner herein filed a written objection denying the allegations contained in the pre-emption application. The specific defence case was that the petitioner applied for construction of house under Indira Awas Yojana and at the same time he sold his inherited land and purchased the disputed land for building a house. His application under Indira Awas Yojana was approved by the local panchayat authority. Thereafter, he built a tile shade brick wall house on the purchase land with the amount that he received from the said housing scheme. The petitioner contended that if the claim for pre-emption is allowed he would become landless and homeless. The learned Trial Judge held that the pre-emptors are co-sharers in the plots in question and the petitioner herein is a stranger in the disputed plot. The deed of sale was executed and registered on 18th March 2008 and the application for pre-emption was filed on 29.04.2008 and accordingly the learned Trial Judge held that the application for pre-emption was filed within the prescribed period of 3 limitation. The learned Trial Judge, after considering the materials on record, allowed the application under Section 8 and 9 of the Land Reforms Act. It was held that the right, title and interest of the suit property do vest with the applicants of the misc. case. Being aggrieved, the petitioner preferred a Misc. Appeal. The learned Judge of the Appellate Court by the judgment and order dated 2nd June, 2025 dismissed the said appeal. Mr. Das, learned Advocate appearing for the petitioner vehemently contended that the learned Judge of the Appellate Court did not consider the aspect of equity. The learned Judge of the Appellate Court specifically recorded that the learned advocate for the appellant i.e., the petitioner herein did not raise any question on the right of the pre-emptors seeking pre-emption on the ground of co-sharership. It has been specifically recorded by the learned Judge of the Appellate Court that the one and only ground of the appeal which has been raised is the question of equity which has not been taken into consideration by the learned Trial Judge while allowing the application for pre-emption. The learned Judge of the appellate Court noted that the application for pre-emption was filed within a period of 40-41 days from the date of transfer. The learned judge of the appellate Court upon scrutiny of the evidence of OPW-1 found that he has specifically admitted that at the time of purchase the disputed land was Sali (agricultural land) by nature which he subsequently converted into Bastu without taking any permission from the BL & LRO. The said witness further 4 admitted in cross-examination that before filing of the pre- emption case the construction of his house was not complete. Even when the Local Inspection Commissioner visited the disputed land for inspection the construction of house was not completed. After taking note of the aforesaid admission in the evidence the learned judge of the appellate Court observed that while the matter was subjudice before the learned Trial Judge, the petitioner herein not only converted the nature and user of the land in question without seeking necessary permission from the concerned Block Land and Land Reforms Officer but also took the risk of constructing his house on the disputed land. The learned Judge of the Appellate Court further observed that the petitioner suppressed material facts and practiced fraud upon the panchayat authority for obtaining the benefits of Indira Awas Yojana. The learned Judge of the Appellate Court further observed that the petitioner hurriedly changed the nature and the user of the disputed land and constructed the house over the same so that the plea of doing equity to him could defeat the right of pre-emption against the impugned transfer. The learned Judge of the appellate court further observed that the entire conduct of the petitioner herein as it is manifested from the materials on record clearly indicates that his intention had never been bona fide nor did he do equity by himself at any point of time. In the light of the aforesaid observations the learned Judge of the appellate court observed that there is no scope to entertain the plea of doing equity to the petitioner herein by refusing the statutory right of pre-emption. In the light of the aforesaid observations, the learned 5 Judge of the Appellate Court did not accept the contention of the petitioner that the right of preemption stood extinguished by extension of benefits under a scheme by the Government. The learned Judge of the Appellate Court, after taking into consideration the points raised by the petitioner and upon perusing the materials on record, affirmed the judgment and order passed by the learned Trial Judge. The learned Trial Judge has allowed the application for pre-emption by a speaking order. The learned advocate appearing for the petitioner contended that the petitioner would become landless and homeless if the judgments passed by the learned Trial Judge and the Judge of the Appellate Court are not interfered with. Merely because of the fact that the petitioner claims to have obtained benefits under a scheme, that by itself cannot extinguish the right of pre-emption which is a statutory right under Section 8,9 and 10 of the West Bengal Land Reforms Act. This Court holds that upon a transfer being made to a person other than a co-sharer, the right of pre-emption under Section 8 of the West Bengal Land Reforms Act accrues. If such right is exercised within the prescribed period of limitation such right could not be defeated by a stranger to a plot of land merely on the ground that benefits under certain government housing scheme has been extended in favour of such stranger purchaser. This Court does not find any infirmity in the impugned judgment. For such reason, this Court is not inclined to entertain this civil revisional application and the same is accordingly, dismissed. Urgent photostat certified copy of this order, if 6 applied for, be supplied to the parties upon compliance of all requite formalities. (Hiranmay Bhattacharyya, J.)