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Cites 11 docs - [View All]
The Bengal Districts Act, 1836 ]
The Revenue Recovery Act, 1890
Allahabad Development Authority vs Nasiruzzaman & Ors on 2 September, 1996
Nawn Estates (P) Ltd vs C.I.T., West Bengal on 14 October, 1976

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Calcutta High Court
Prafulla Kumar Maity vs Amal Krishna Mishra And Ors. on 4 April, 1997
Equivalent citations: (1998) 1 CALLT 104 HC
Author: N Mitra
Bench: N K Mitra

JUDGMENT

N.K. Mitra, J.

1. The disputed plot No. 1491 appertaining to R.S. Khatian No. 128 of Mouza Athilagari, P.S. Contai, Dist. Mldnapore was the retained land of several co-sharers including Bhupendra Nath Maily and Ramesh Chandra Maity, who were all Raiyats as would appear from the R.S. Record of Rights where the said land was recorded as 'Sandi' (Balu Badam). On 30th August, 1969, opposite parties No. 1 to 3 purchased .04 decimals being a portion of the said plot No. 1491 from Bhupen Maity, Subsequently, on 11th August, 1972, Bhupen sold about .02 decimals in the same plot to the petitioner. Admittedly, no notice of such transfer under section 5(5) of the West Bengal Land Reforms Act, 1955 was served upon the opposite parties No. 1 to 3. Subsequently, on 26th February, 1973. Ramesh sold his portion to the opposite parties No. 1 to 4. The registration of the said sale was completed on 28th February, 1973. Thereafter on or about 16th June, 1975, the opposite parties No. 1 to 4 filed an application for pre-emption of the said sale dated 11th August, 1972 as referred to above, effected by Bhupen In favour of the petitioner, before the learned Munsif, 1st court, Contai, Midnapore on the ground that they were co-sharers as well as adjoining owners of the said plot and the said application was registered as Judicial Misc. Case No. 69 of 1975.

2. The petitioner contested the said proceeding by filing written objection, denying and disputing the allegations made In the preemption application and also raising the question of limitation. The learned munsif by his order dated 24th July, 1976 dismissed the said pre-emption case holding inter alia, that the land In question being a non-agricultural land, application under section 8 of Land Reforms Act, 1955 was not maintainable. The opposite parties being aggrieved by the said order, filed an appeal being No. 178 of 1976 before the learned additional District Judge, 2nd court at Midnapore who by his order dated 14th February, 1977 allowed the appeal and remanded the case back to the learned munsif for fresh decision after giving opportunity to both the parties to adduce evidence on the point of co-sharership and also on other points.

3. After remand, the said Judicial Misc. case was again dismissed by the learned Munsif on 9th September, 1978 holding inter alia, that the land in question being a non-agricultural land, application under section 8 of the West Bengal Land Reforms Act was not maintainable. Against the said order, the opposite parties preferred an appeal being No. 214 of 1978 before the learned Additional District Judge, 1st court at Midnapore which was also dismissed on 28th February, 1980. Against such dismissal, the opposite parties moved a revisional application under Article 227 of the Constitution of india in this Hon'ble Court which gave rise to C.R. No. 1730 of 1980. The said Civil Rule, however, was made absolute by Sudhendra Mohan Guha, J. on 23rd July, 1981 by setting aside the impugned order and remanding back the case again to the learned Munsif for a fresh decision observing inter alia, that the trial court should ascertain first, whether notice under section 5(5) of the West Bengal Land Reforms Act, 1955 was served upon Ramesh Maity and if not served, the application for pre-emption would be found to be in order and if the notice was found to have been served, the leaned Munsif would give the opposite parties an opportunity to strike the name of the opposite party No. 4. Against the said order, & special leave petition was filed before the apex court of india by the petitioner, but the same was dismissed. The learned Munsif, 1st court at Contal, Dist.--Midnapore this time by his order dated 17th June, 1987, allowed the said Judicial misc. case after remand holding inter alia, that no notice was served upon Ramesh Maity and also upon the opposite parties and as such, the pre-emption application was maintainable and the opposite parties being the co-sharers of the suit holding had right to preempt the disputed sale, as by purchase from Ramesh the co-sharer, the opposite parties had stepped into the shoes of Ramesh. Being aggrieved by the said order, the petitioner preferred an appeal being Misc. Appeal No. 180 of 1986 which was also dismissed by the learned additional District Judge, 3rd court at Midnapore on 5th December, 1987 and against the said order of dismissal, the petitioner has moved a revisional application in this Hon'ble Court giving rise to the present civil order.

4. Elaborate arguments have been advanced by the learned counsels by the respective parties and a good number of decisions have been cited at the Bar. No doubt, the original co-sharer/owners Bhupen and Ramesh Maity who were raiyats, ceased to be co-sharers in respect of their Joint holding including disputed plot after vesting of all their lands with the State as per the provisions of the West Bengal Estates Acquisition Act, 1953 by operation of law, inasmuch as, this Hon'ble Court in its Full Bench Decision in the case of Madan Mohan Ghosh & Ors. v. Sishu Bala Atta and Ors., 76 CWN 1058 held inter alia, in clear terms that after the enforcement of Chapter VI of the West Bengal Estates Acquisition Act, 1953 and the vesting of interests of raiayts and under ralayts on and from 14th April, 1956 corresponding to Baisakh 1, 1363 B.S., the co-sharer raiyats of a holding ceased to be co-sharers, and each raiyat of the holding became a direct tenant under the State in respect of the lands of that holding, which he was entitled to retain under sub-section (1) of section 6 of the said Act. In other words, each co-sharer/ralyat of a holding became 16 annas owner in respect of his share in such after the vesting.

5. Accordingly, in view of the aforesaid Full Bench Decision of this Hon'ble Court, the directions given by this Hon'ble Court on the earlier occasion in C.R. No. 1730 of 1980 while remanding the matter back to the trial court as stated above, therefore, appear to be erroneous on their face, inasmuch as, since Ramesh ceased to be a cosharer of the disputed holding by operation of law, he was not required to be served with any notice under section 5(5) of the West Bengal land Reforms Act, 1955 at all. However, the said point cannot be reopened again in view of the Bench Decision of this Hon'ble Court in the case of the Angur Bala Dassi v. Radha Rani Dassi & Anr. 70 CWN 618, as according to the said decision, the earlier decision of this Hon'ble Court even in a case of remand, would operate as res-judicata. No doubt, the Hon'ble Supreme Court in its recent decision in the case of Allahabad Development Authority v. Nasiruzzaman & Ors. has held inter alia, that when the previous decision in found to be erroneous on its face, the same would not operate as res-Judicata, but as the petitioner had preferred a special leave petition before the Hon'ble Supreme Court against the earlier order of remand passed in C.R. No. 1730 of 1980 as referred to above, which was ultimately, dismissed, the decision of the apex court in Allahabad Development Authority v. Nasiruzzaman & Ors. (supra) would not be of any help to the petitioner.

6. Be that as it may, the opposite parties No. 1 to 3 by virtue of their purchase of .04 decimals of land, being an undivided portion of plot No. 1491 from Bhupen on 30th August, 1969, undoubtedly became co-sharers of Bhupen in respect of the said plot, and as such, they were certainly entitled to pre-empt the disputed sale of .02 decimals of land in the said plot by Bhupen to the petitioner, as co-sharers. So far as the opposite party No. 4 is concerned, he, however, by virtue of purchase from Ramesh on 26th February, 1973 along which with the opposite parties No. 1 to 3, though had not become a co-sharer of the petitioner or of Bhupen prior to the date of the disputed sale, but had become an adjoining land owner only on and from the day of his purchase in 1973 and not before that.

7. During the pendency of the pre-emption proceeding, the West Bengal Land Holding Revenue Act, 1979, came into force which had given a go-bye to the original definition of "holding" as given under the West Bengal Land Reforms Act, 1955, inasmuch as, in the West Bengal Land Reforms Act, 1955 "holding" was defined as the land or lands held by a raiyat and treated as a unit for assessment of revenue. The West Bengal Land Holding Revenue Act, 1979, by its section 26(l)(a) deleted the words "and treated as a vmit for assessment of revenue" from the definition of "holding". The vires of the West Bengal Land Holding Revenue Act, 1979 was challenged in this Hon'ble Court and this Hon'ble Court in the case of P.R. Bhumtjibi Sangha v. State of West Bengal, 90 CWN 1108(F.B.) : 1986(II) Calcutta High Court Notes, I, held inter alia, that the definition of the area as given in section 2(c) of the said Act was ultra-vires and that sub-section 2(c) was not severable from the remaining provisions of the Act relating to the determination of the rateable value and assessment of revenue, and it was further held, that in absence of the valid substantive provisions in the Act itself for determination of areas, the State could not enforce the provisions of the West Bengal Land Holding Revenue Act. In view of the said Bench Decision, the meaning of the word "holding" as defined in section 2(6) of the West Bengal Land Reforms Act, 1955 is still in force and in such view of the matter, the pre-emption proceeding brought by the opposite parties No.1 to 3 against the petitioner as non-notified co-sharers is quite maintainable in law. However, though it is already observed that so far as the opposite party No.4 is concerned, he was neither a co-sharer of the disputed holding, nor an adjoining owner of such holding on the relevant date, but in view of the earlier observations made by this Hon'ble Court and its legal effect as discussed above, he is also entitled to pre-empt the disputed sale.

8. The next question comes as to whether the pre-emption proceeding should have been filed under section 8 of the West Bengal Land Reforms Act, 1955 or under section 24 of the West Bengal Non-Agricultural Tenancy Act, 1949 as the nature of the disputed land was non-agricultural. By reason of 1981 amendment Act. section 2(7) had under gone a drastic change which brought within its purview, land of every description in the following manner ; "2(7):- 'Land' means land of every description and includes tank, tank-fishery, fishery, homestead, or land used for the purpose of live-stock breading, poultry farming, dairy or land comprised in tea garden, mill, factory, workshop orchard, hat, bazar, ferries, tolls or land having any other sairati interests and any other land together with all interests, and benefits arising out of land things attached to the earth or permanently fastened to anything attached to earth;"

9. By section 3A of the West Bengal Land Reforms (Amendment) Act, 1981 rights of all non-agricultural tenants and under tenants in non-agricultural lands had vested in the State with retrospective effect from 7th August, 1969. The relevant provisions of the said section 3A as introduced by the West Bengal Land Reforms (Amendment) Act, 1981 is reproduced below ;

"3A:- Rights of non-agricultural tenants and under-tenants in non-agricultural land to vest in the State.

(1) The rights of all non-agricultural tenants and under-tenants under the State of West Bengal Non-Agricultural Tenancy Act, 1949 shall vest in the State free from all incumbrances and the provisions of sections 4,5 and 5A of Chapter II of the West Bengal Estates Acquisition Act, 1953 shall, with such modification as may be necessary, apply mutatis mutandis to non-agricultural tenants and under-tenants within the meaning of the West Bengal Non Agricultural Tenancy Act, 1949 as if such non-agricultural tenants and under-tenants were intermediaries and the land held by them were estates and a person holding under a non-agricultural tenant or under-tenant were a raiyat.

(2) On the vesting of the estates and rights of intermediaries in any non-agricultural land under sub-section (1), the provisions of Chapter IIB of this Act shall apply."

10. This Hon'ble Court, however, in the case of Ram Kissan Shaw v Lachmanta Devi, 91 CWN 658 held inter alia, that a notification under sub-section (1) of section 4 of the West Bengal Estates Acquisition Act, 1953 would be necessary for specifying the date with effect from which the rights of non-agricultural tenants and under-tenants would vest and, therefore, only upon the publication of such a notification, the rights and interest of non-agricultural tenants and under-tenants would vest in the State. To obviate such difficulties, the State Government thought it fit to pass the West Bengal Land Reforms (Third Amendment) Act, 1986 whereby the said section 3A was substituted by a new section 3A, the relevant portions of which are reproduced below ;

"3A:- Rights of non-agricultural tenants and under-tenants in non-agricultural land to vest in the State.

(1) The rights and interests of all non-agricultural tenants and undertenants under the West Bengal Non-Agricultural Tenancy Act, 1949 shall vest in the State free from all encumbrances, and the provisions of sections 5 and 5A of the West Bengal Estates Acquisition Act, 1953 shall apply, with such modification as may be necessary mutatis mutandis to all such non-agricultural tenants and under tenants as if such non-agricultural tenants and under tenants were intermediaries and the land held by them were estates and a person holding under a non-agricultural tenants or under-tenant were a raiyat."

11. The new section 3A came into force with effect from 9th September, 1980. The result of introduction of the new section 3A by the West Bengal Land Reforms (Third Amendment) Act, 1986 was that even the tenancies governed by the West Bengal Non-Agricultural Tenancy Act, 1949 were brought Within the purview of the West Bengal Land Reforms Act, 1955.

12. Accordingly, as per substituted definition of land as introduced by the West Bengal Land Reforms (Amendment) Act, 1981 and also the substituted section 3A as introduced by the West Bengal Land Reforms (Third Amendment) Act, 1986, lands of every description including lands forming part of non-agricultural tenancy, all came within the purview of the West Bengal Land Reforms Act, 1955 and as such, pre-emption under section 8 of the said Act could also be available of such lands.

13. However, recently this Hon'ble Court in the case of Paschim Banga Bhumi Jibi Krishak Samiti & Ors. v. State of West Bengal & Ors. 1996(11) Calcutta High Court Notes 212 which is a Bench decision, has held inter alia. In clear terms that provisions of section 14V of the West Bengal Land Reforms (Amendment), Act, 1981 vis-a-vis, the definition of land as contained in section 2(7) and section 3A of the West Bengal Land Reforms (3rd Amendment) Act, 1986, ultra-vires of Article 300A of the Constitution of india, and the effect of the said decision is that the original definition of land under that West Bengal Land Reforms Act, 1955 has been revived and inclusion of tenancies held under the West Bengal Non-Agricultural Tenancy Act, 1949 within the purview of the West Bengal Land Reforms Act. 1955 has come to a halt. Accordingly, it may be said that as per the ratio of the decision in 1996(2) CHN 212 as discussed above, non-agricultural lands are outside the purview of per-emption under section 8 of the West Bengal Land Reforms Act, 1955. However, the Bench decision of this Hon'ble Court in 1996(11) Calcutta High Court Notes 212 as referred to above will not be of no help to the petitioner in the present case, inasmuch as, I have already observed that the status of the original owner Bhupen was "raiyat" in respect of the land he had sold in 1972, which is sought to be pre-empted by the opposite parties No. 1 to 4. Originally, a "ralyat" as per its definition as given in section 2(10) of the West Bengal Land Reforms Act, 1955 meant a person or an institution holding land for the purpose of agriculture. However, the said definition of "raiyat" has since been substituted by a new definition under the West Bengal Land Reforms (Amendment) Act, 1981 and presently, "ralyat" as per the substituted clause (10) of section 2 of the West Bengal Land Reforms Act, 1955 means a person or an institution holding land for any purpose whatsoever. '.

14. Accordingly, as per the said substituted section 2(10), a 'ralyat1 may also hold apart from agricultural and/or homestead land, land which is being used for no-agricultural purpose and such land would also form a part of his holding and hence the same can also be pre-empted under section 8 of the West Bengal Land Reforms Act, 1955 being the land of a 'raiyati holding'.

15. The opposite parties No. 1, 2 and 3 who, by virtue of their earlier purchase of a portion of the disputed holding from Bhupen in 1969 as referred to above, had became his co-sharer in such holding, are, therefore, entitled to pre-empt the disputed sale made by Bhupen in 1972 in favour of the petitioner, under section 8 of the West Bengal Land Reforms Act, 1955 and the opposite party No.4 also is entitled to such pre-emption by virtue of the legal effect of the earlier observations of this Hon'ble Court as referred to above. Accordingly, I am not inclined to interfere with the impugned order for the reasons as aforesaid and the Civil Order thus stands disposed of without any order as to costs.

16. Petition disposed of