Right of pre-emption is a maligned, feudal and archaic law: Supreme Court on Bihar Land Reforms (Amendment) Act, 2019 which takes away right to have retrospective effect

  • Aishwarya Iyer
  • 04:47 PM, 05 Jan 2022

The Supreme Court on Monday held that right of pre-emptions is feudal, archaic and outmoded. While relying on its dictum in Shyam Sunder & Ors. v. Ram Kumar & Anr, the Court added that the right of pre-emption has been said to be maligned law.

A bench of Justices Hemant Gupta and S Ravindra Bhat while interpreting The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 2019 added,

"Such right of pre-emption has been taken away and all proceedings pending before any authority have been ordered to be abated including proceedings in any other Court. Any other Court is wide enough to include the Constitutional Courts i.e. the High Court and the Supreme Court."

These observations were made by the Court while hearing an appeal filed by one Punyadeo Sharma against an order passed by the Patna High Court whereby the intra-court appeals directed against an order of the Single Bench were not interfered with.

Sharma had purchased the land in question vide sale deed dated February 9, 1990. The sale deed was presented for registration but the registration was completed on January 7, 1992.

The proceedings for pre-emption of the land were initiated in terms of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 on March 31,1992.

A Division Bench of the High Court examined whether an application for pre-emption was filed within three months of the registration as required by Section 16(3) of the Act or was it required to be filed within three months of the day of execution of the sale deed i.e. 9.2.1990. 

The top court noted that the said question did not survive for consideration in view of the subsequent development whereby the right of pre-emption itself has been taken away by the Amendment Act of 2019.

It was further noted by court that the right of pre-emption, after the Amending Act, abates as sub-section 4(i) is specifically dealing with all pending proceedings before whatsoever forum. Therefore, the right of pre-emption stood abated on and after February 25, 2019 including the proceedings which were pending before any forum.

Thus, keeping in view the object of the Statute, purpose to be achieved and the express language of the Amending Act, the court allowed the appeal and held that all proceedings of pre-emption under the Act pending before any authority under the Act or before any Court shall stand abated.

Moreover, the bench found that the 10% of the pre-emption amount which was required to be deposited was ordered to be deposited in the instant case. In this regard the court ordered that 

"It shall be open to the respondents to withdraw 10% of the amount deposited by them in terms of Section 16 of the Act in accordance with law."

Cause Title: PUNYADEO SHARMA & ORS. ETC. v KAMLA DEVI & ORS. ETC.