Amiya Kumar Mookerjee, J.
1. This Rule is directed against an appellate order passed in an appeal under Section 9(6) of the West Bengal Land Reforms Act, 1955. A short and interesting point arises for consideration in the present Rule is, whether an application for pre-emption under Section 8(1) of the West Bengal Land Reforms Act (hereinafter referred to as the Act) is liable to be rejected when a co-sharer of a holding made a short deposit of the consideration money at the time of filing such application.
2. The petitioner filed an application under Section 8(1) of the Act and deposited Rs. 750/- being the value of the land as stated in the kobala, hut he did not deposit Rs. 250/- being the value of the structure mentioned in the Conveyance because, according to him, there was no structure on the land, as such the value of the structure stated in the kobala was a fictitious one. The Revenue Officer dismissed the petitioner's application for preemption on two grounds viz., that the required consideration money was not deposited by the petitioner and the lands were not agricultural lands. On appeal, the appellate tribunal found that the lands were agricultural lands but dismissed the petitioner's appeal, upon the view, that the petitioner failed to comply with the statutory obligation cast upon him in the matter of depositing the consideration money together with compensation thereon. The petitioner being aggrieved against the said appellate order, moved this Court on an application under Article 227 of the Constitution and obtained the present Rule.
3. Mr. Roy, appearing in support of the Rule contended, that the learned Munsif failed to consider that the petitioner specifically raised a dispute as regards the quantum of consideration money paid by the opposite party. The Revenue Officer under Section 9(1) of the Act after determining the said dispute should have directed the petitioner to deposit such further amount within a specified time. If the petitioner failed to deposit such amount within such time, in that case only, the petitioner's application under Section 8(1) of the Act should have been dismissed. The Revenue Officer has got no power or jurisdiction to dismiss the petitioner's application on account of short deposit of the consideration money.
4. Admittedly the present petitioner is a non-notified co-sharer. Article 137 of the New Limitation Act corresponding to Article 181 of the Old Act apply to an application by a co-sharer who has not been served with a notice of transfer under Section 5(5) of the Act and his application would be in time, if made within three years from the date of the transfer (Vide, Asmatali Sharip v. Mujaharali Sardar, 52 Cal WN 64 = (AIR 1948 Cal 48 (SB)). Therefore, the application for pre-emption in the instant case is within time.
5. Under Section 26-F (2) of the Bengal Tenancy Act, unless the applicant at the time of making an application for pre-emption deposits in the Court the amount of consideration money his application shall be dismissed. Similar provisions are to be found in Sub-section (2) of Section 24 of the West Bengal Non-Agricultural Tenancy Act. But such provisions are absent in Section 8 of the Act.
6. A single Bench decision of this Court held in Sachindra Nath Chakraborty v. Trailakyanath Chakraborty, 40 Cal WN 1023 = AIR 1936 Cal 576 = ILR (1937) 1 Cal 112, that the Court has no power to extend the time for making a deposit by a co-applicant beyond the period of time mentioned in Clause (a) of Sub-section (4) of Section 26-F of the Bengal Tenancy Act. A Division Bench of this Court in Nural Hossain Mallick v. Mihilal Sheikh, AIR 1948 Cal 144, dissented from the above single Bench decision and held, that an application for pre-emption under Section 26-F of the Bengal Tenancy Act will not be dismissed if the circumstances are such that the deposit may be deemed to have been made at the time of making the application.
7. Another Division Bench of this Court in Prabartak Jute Mills Ltd. v. Anila Devi, (1955) 59 Cal WN 939, held, that even in cases where notice under Section 23 of the West Bengal Non-Agricultural Tenancy Act had been served, though deposit is essential, the time stated in Section 24 of the West Bengal Non-Agricultural Tenancy Act, is not so essential as to compel the Court to dismiss the application if such deposit was not made at the time of filing the petition. The date of deposit might be treated as the date when the petition is presented and/or the application for pre-emption is made and an order for pre-emption can be made provided such deposit was made, within the time prescribed by general law of limitation.
8. Where there are mandatory provisions in the statute that an application for pre-emption shall be rejected if the applicant fails to deposit the consideration money at the time of making such application, even then in view of the above decisions of this Court as referred to above, such applications could not be rejected if the consideration money is paid subsequently within the period of limitation.
9. In the instant case, the balance of consideration money had not been paid by the petitioner. The Revenue Officer did not direct the petitioner to deposit any such amount. Section 9(1) of the Act deals with the procedure to be followed where an application under Section 8 of the Act is filed. Notices are required to be served by the Revenue Officer to the transferee and also on the land which forms the subject-matter of the application. The transferee or any person interested may prove the consideration money paid for the transfer and other sums viz. rent, revenue, cess, tax etc. paid in respect of the land. The Revenue Officer 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 all such sums being deposited shall make an order that the amount of the consideration money together with such other sums as are proved, have been paid by the transferee. The Revenue Officer, thereafter, shall make a further order that the portion or share of the holding to be transferred to the applicant.
10. A fact is said to be proved when, after considering the matter before it, the court either believes it to exist, or considers its existence so probably that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
11. In the instant case, the petitioner believed that as there was no structure on the land, the value of the structure as shown in the kohala was fictitious.
So upon the assumption of non-existence of the structure, he deposited the value of the land but did not deposit Rs. 250/-the value of the structure. Under these circumstances, obviously the onus lies upon the transferee to prove that the consideration money so deposited by the pre-emptor was insufficient as it did not include the value of the structure standing on the land. The Revenue Officer after making an enquiry if he is satisfied that there is a structure on the land and the value of the structure as shown in the kohala is not fictitious, in that case, he should direct the applicant to deposit such further amount as he might deem fit and proper within a specified time and when such further deposit having been made, the Revenue Officer shall order for transfer of the portion of the share of the holding to the applicant.
12. So, in my opinion, the Revenue Officer or the Appellate Tribunal has got no jurisdiction to reject the petitioner's application under Section 8(1) of the Act simply because the applicant made a short deposit of the consideration money. Where the consideration money is disputed, it would be sufficient compliance of Section 8(1) of the Act, if the applicant deposits the balance of consideration money when the Revenue Officer makes a final order either granting or refusing pre-emption after the amount of consideration money payable by the pre-emptor, has been adjudicated under Section 9(1) of the Act.
13. In the result, this Rule is made absolute, the impugned orders of the Appellate Tribunal as well as the Revenue Officer are set aside and the case is remitted back to the Revenue Officer to determine afresh the petitioner's application under Section 8(1) of the Act after giving the petitioner opportunity to deposit such further amount as the Revenue Officer might deem fit and proper after making a proper enquiry, within a specified time and dispose of the petitioner's application in accordance with law. If the petitioner fails to make the deposit such further amount within the time as directed by the Revenue Officer, in that case, his application under Section 8(1) of the Act will stand rejected.
14. There will be no order as to costs.
15. Let the records go down to the Revenue Officer as expeditiously as possible.