Calcutta High Court
Mahesh Housing Co-Operative Society ... vs State Of West Bengal And Ors. on 21 November, 2003
Equivalent citations: 2004(1)CHN10, 2004 A I H C 1401, (2004) 1 CAL HN 10 (2005) CAL WN 755, (2005) CAL WN 755
Author: Asok Kumar Ganguly
Bench: Ashok Kumar Ganguly
JUDGMENT Asok Kumar Ganguly, J.
1. The subject-matter of challenge in this writ petition is a judgment and order dated 19.12.2001 passed by the West Bengal Land Reforms & Tenancy Tribunal (hereinafter called as the said Tribunal) in O.A.No. 1263 of 2001 (LRTT).
2. The material facts of the case are that the petitioner, Mahesh Housing Co-operative Society Limited (hereinafter called as the said 'Society'), registered in the month of December, 1963, started acquiring plots of land in Mouza-Mahesh, District - Hooghly. The said Society had acquired about 126 acres of land. The case of the said Society is that it acquired so much of land in order to develop the same for a Housing Scheme.
3. The grievance of the said Society is that on 15.12.1997, an order of vesting was passed under the West Bengal Land Reforms Act, 1955 (hereinafter called the said 'Act') against the said Society and a proceeding was initiated under Section 14T(3) of the said Act against the said Society treating it as any other 'raiyat' within the meaning of Section 14M(e) of the said Act. As such, the ceiling of the said Society was determined as 7 standard hectares corresponding to about 24.22 acres of land, The said 24.22 acres of non-irrigated land in terms of provisions of Section 14M(i)(e) of the said Act was allowed to be retained and in respect of the remaining land, namely about 102 acres, an order of vesting was passed as it was held that the said area was beyond the ceiling limit of the said Society. Against the said order of vesting, an appeal was preferred by the said Society under Section 54 of the said Act. The appellate authority, in the said appeal (Appeal Case No. 25 of 2000), substantially upheld the order of the Revenue Officer and dismissed the said appeal. The said Society moved the Tribunal against the said-decision. The Tribunal, by its judgment and order dated 19.12.2001, however, refused to interfere with the order of the appellate authority by giving certain reasons.
4. Assailing the judgment of the Tribunal, the learned Counsel for the petitioner mainly argued that the said Society has about 415 members and in view of such membership of the said Society, the ceiling area, applicable to the Co-operative Society, is governed under Section 14(1) Q(sic) of the said Act.
5. According to the learned Counsel, in accordance with the provisions of Section 14(1)(Q)(sic) of the said Act, the ceiling area of a Co-operative Society shall not exceed the sum total of the ceiling area of each member of such Society. However, the proviso to Section 14(1)Q(sic) provides that for computing the ceiling area of a Co-operative Society any land separately held by a member of the Society shall be deducted from the ceiling area as referred to in Section 14M so that the sum total of land held by such person does not exceed the area available to him under Section 14M.
6. According the learned Counsel, the right of Co-operative Society to hold land is recognised by the statue(sic) by way of a special provision. The fact that the said right is a special provision, has been emphasised by the proviso to Section 14(1)Q(sic).
7. For a proper appreciation of the aforesaid question, Section 14Q(1) of the said Act along with the proviso is set out below:--
"14Q. Ceiling area in special cases.--(1) Subject to the provisions of Sub-section (2), the ceiling area for a co-operative society, company, co-operative farming society, Hindu undivided family or a firm, as the case may be, shall not exceed the sum total of the ceiling area of each member of such cooperative society, company, co-operative farming society, Hindu undivided family or each partner of such firm;
Provided that for the purpose of determining the ceiling area referred to in this sub-section, any land held separately by a person, who is member of a co-operative society, company, co-operative farming society or Hindu undivided family or a partner of a firm, shall be deducted from the ceiling area referred to in Section 14M, so that the sum total of the area of land held by such person, whether as such member or partner or individually or as a member of a family, may not, in any case, exceed the ceiling area applicable to him under Section 14M."
8. The learned Counsel for the petitioner-Society submits that the Section 14(1)Q(sic) being a special provision, the same will override the provision of Section 14M, which describes the ceiling area of a 'raiyat'.
9. The learned Counsel further submitted that all the decisions, which are impugned in the writ petition namely the decision of the Revenue Officer, the decision of the appellate authority and the decision of the Tribunal have been passed without appreciating this statutory position and, as such, those decisions are erroneous in law.
10. The learned Counsel also submitted that the special right which has been granted to the said Society under the statute, namely, Section 14(1)(Q)(sic), cannot be taken away under the grab of statutory interpretation.
11. The learned Counsel appearing for some of the private parties opposed the case of the petitioner-Society and submitted that the plots of land in question are agricultural land. According to the learned Counsel appearing for the private parties, many members were inducted in the said Society after the date of vesting. In support of this contention, the learned Counsel referred to Annexure - P/9 to the writ petition, which contains a list of members of the said Society.
12. According to the learned Counsel, out of the list of 415 members, a substantial portion of those members were inducted after the date of vesting, i.e. on 15.12.1991, and, according to the learned Counsel, about 195 members were so inducted.
13. The learned Counsel further submitted that the lands in question are agricultural and the said Society allegedly converted those plots of land into 'non-agricultural' land. According to the learned Counsel, it is not open to any 'raiyat' and the said Society being a 'raiyat' under the said Act, to change the nature and character of the land without obtaining the prior statutory permission under the said Act.
14. The learned Counsel for the State controverting the case made out by the petitioner-Society on the interpretation of the statute, submitted that under Section 2(10) of the said Act, a 'raiyat' has been defined as a person or an institution holding land for any purpose whatsoever.
15. Relying on the said definition, the learned Counsel urged that a Cooperative Society comes within the sweep of the said definition and the petitioner-Society is therefore a raiyat.
16. The learned Counsel further submitted that the ceiling limit of a 'raiyat' has been determined affirmatively under Section 14M of the said Act. Section 14M of the said Act shows different categories of 'raiyat' and Section 14M(1)(e) covers all the categories who are not mentioned under Sections 14M(1)(a) to (d). Therefore, falling within the said statutory definition of a 'raiyat' the ceiling limit of a Co-operative Society to hold land cannot exceed 7 hectares.
17. The learned Counsel urged that these provisions must be kept in mind while interpreting the provisions of Section 14(1)Q(sic) which must be read harmoniously with Section 14L of the said Act. Under the provisions of Section 14L, it is made very clear that no 'raiyat' shall be entitled to own in the aggregate any land in excess of the ceiling area applicable to him under Section 14M. Of course this is subject to the provisions of Sub-section (3) of Section 14Q, Section 14Y and Sub-section (2) of Section 14Z. But the learned Counsel submitted that those sub-sections are not attracted in the present case inasmuch as those provisions are merely enabling provisions, and enable the State Government to allow the larger ceiling area to any particular 'raiyat'. The same having been not done in this case, Section 14(1)Q(sic) must be read subject to Sections 14L and 14M of the said Act.
18. The learned Counsel for the State further submitted that in any event, the provision of Section 14(1)Q(sic) has been deleted by the West Bengal Land Reforms (Amendment) Act, 2003. The learned Counsel refers to Section 4 of the said amending Act, which is to the following effect:--
"4. Sub-section (1) of Section 14Q of the principal Act shall be omitted."
19. The learned Counsel submitted that the said amendment was assented to by the Governor and was published for general information on 14.08.2003. The learned Counsel also submitted that in view of the said amendment, Sub-section (1) of Section 14Q of the said Act has been deleted and, as such, the main basis of the petitioner's case is no longer existing today. Therefore, this Court cannot pass any order in favour of the petitioner.
20. The learned Counsel for the petitioner in combating the said argument submitted that under Sub-section (2) of Section 1 of the said amending Act, it has been provided that the said amending Act shall come into force on such date as the State Government may by notification in the Official Gazette appoint. But, no such notification has yet been issued. As such, the said amendment cannot be brought into force. However, in course of argument before this Court, the learned Counsel for the State produced a notification dated 18.09.2003. The said notification is to the following effect:--
"THE KOLKATA GAZETTE Extraordinary Published by Authority BHADRA 27] THURSDAY, SEPTEMBER 18, 2003 [SAKA 1925 PART I--Order and Notifications by the Governor of West Bengal, the High Court, Government Treasury, etc. GOVERNMENT OF WEST BENGAL LAND AND LAND REFORMS DEPARTMENT L.R. Branch NOTIFICATION No. 2599-L.R./1A-2/02 GE(M) Dated, the 18th September, 2003.
In exercise of the power conferred by Sub-section (2) of Section 1 of the West Bengal Land Reforms (Amendment) Act, 2003 (West Bengal Act 18 of 2003) (hereinafter referred to as the said Act) read with Sub-section (3) of Section 1 of West Bengal Land Reforms Act, 1955 (West Bengal Act 10 of 1956), the Governor is pleased hereby to appoint the 1st day of Kartik, 1410 B.S. corresponding to 19th day of October, 2003 as the date with effect from which all the provisions of the said Act excepting Clause (ca) of Sub-section (2) of Section 6 shall come into force.
By order of the Governor, PRASADRANJAN RAY, Secy. To the Govt. of West Bengal."
21. As a result of the said notification, it appears that the Governor was pleased to appoint 19.10.2003 as the date with effect from which each of the provisions of the said amending Act except Clause (a) of Sub-section (2) of Section 6 shall come into force. Since we are concerned with Section 4 of the amending Act, it is clear from the said notification that the provision relating to deletion of Section 14(1)Q(sic) has come into effect from 19.10.2003.
22. Even after the aforesaid notification was made available to the Court, the learned Counsel for the petitioner submitted that the said amendment is prospective and not retrospective in nature. Since amending Act itself is prospective, the right of the petitioner-Society to hold land in accordance with Section 14(1)Q(sic) prior to the amendment cannot be taken away. In support of such contention, the learned Counsel relied on Craies on Statute Law, 7th Edition and also a few other judgments, which this Court will now consider.
23. The learned Counsel, however, did not challenge the said amendment. No argument was advanced challenging the same, nor any leave was prayed for before this Court by the learned Counsel seeking to amend the petition for challenging the said amendment.
24. The particular portion from Craies on Statute Law (7th Edition, pages 207-208) which was relied on by the learned Counsel for the petitioner, deals with the importance of headings and whether such headings form part of the Act. The learned author referred to various judgments in connection with the aforesaid question and it appears from some of the judgments, considered in Craies, that the headings constitute an important part of the Act and may be read not only as explaining the sections, which immediately follow them, but the headings may be read as preamble to a statute and may be looked for that purpose to explain the enactment. The same can be considered as key to the construction of section, which follow them.
25. Even accepting all these principles in the interpretation of headings in the instant case, the heading in Section 14(1)(Q)(sic) does not at all advance the case of the petitioner that the amendment of the Act as described above, does not affect the petitioner's substantive right to hold land under Section 14(1)(Q)(sic). The learned Counsel for the petitioner relied on the said heading in order to urge that the provisions of Section 14(1)Q(sic) are special in nature. This Court accepts the said contentions. But, assuming the said provision to be special in nature, once they have been deleted from the statue(sic), no right can be claimed on the basis of such deleted provisions.
26. The learned Counsel for the petitioner relied on the decision of the Hon'ble Supreme Court in the case of Ram Narain v. Simla Banking & Industrial Co. Ltd., , in order to contend that an amending Act, in the absence of any express retrospective intention, should be read prospectively. There is no dispute with this proposition. Even the amendment of the Act in the instant case, namely, deletion of Section 14(1)Q(sic) is to be read prospectively. But even reading it prospectively this Court finds that, the right of the petitioner-Society to hold land in accordance with the provision of Section 14(1)Q(sic) is lost from the date, the amendment comes into effect.
27. In Ram Narain, Apex Court was dealing with the effect of two special Acts, namely Banking Companies Act as amended in 1953 and Displaced Persons (Debt Adjustment) Act, 1951 and the Court found that both were special laws so the principle that special law overrides a general law does not govern the question of interpretation in that case (page 620 of the report). So the Court explained the question with which it was concerned in Ram Narain, by clarifying in pages 621-622 of the report as follows:--
''In the present case what we are concerned with is not the meaning of any particular phrase or provision of the Act after the amendment but the effect of the amending provisions in their relation to and effect on other statutory provisions outside the Act. For such a purpose the amendment cannot obviously be treated as having been part of the original Act itself so as to enable the doctrine to be called in aid that a later Act overrides an earlier Act."
28. We are not concerned at all with such a question of interpretation in this case and the decision in Ram Narain, is of no relevance.
29. Therefore, this amendment of Section 14(1)Q(sic) by way of its deletion may not affect proceedings against the petitioner-Society under Section 14T of the said Act. But, from the date the amendment has become effective, viz, 19.10.2003, the right of the petitioner-Society to hold land in view of the provisions of Section 14(1)Q(sic) has come to an end and today, this Court cannot pass any order upholding the right of the petitioner-Society under the deleted provisions of law. Two other judgments on which reliance was placed by the learned Counsel for the petitioner are discussed below.
30. The judgment in the case of Bhagat Ram Sharma v. Union of India, , considered the distinction between an amendment and repeal of an Act. While considering the distinction, the learned Judges observed that the legislature may amend a law by deleting it and then substituting it by a new provision. So there is no real distinction between amendment and repeal. Amendment is just a wider term and it is held that amendment of substantive law is not retrospective unless it is so expressly laid down or appears from necessary implication. But this Court, in this case, is not concerned with the distinction, if any, between amendment and repeal. This Court holds that even if the amendment in question is not retrospective, then also the petitioner-Society has lost its right to hold land in excess of the ceiling limit prescribed under Section 14M as soon as the deletion of Section 14(1)Q(sic) has been given effect to.
31. The other judgment relied on was rendered in the case of Banshi Dhar and Ors. v. State of Rajasthan and Ors., . Reliance was placed on paragraph 37 where the learned Judges were considering the right of the State to take over the excess vested land on the appointed day and the only question, which remained to be worked out, was the question of quantification. In coming to the said conclusion, Justice Venkatachalia (as His Lordship then was) relied on an observation by Lord Morris in Director of Public, Works v. Ho Po Sang, reported in (1961) Appeal Cases 901. The observation of Lord Morris is to the effect that under some repealed enactments, a right has been given but in respect of that right, some investigation or legal proceedings are necessary. In such a case, the right is not affected but is preserved even if a process of quantification is necessary. The learned Judge observed that there is a distinction between investigation in respect of right and an investigation which is to decide whether some right, should be given or not. On repeal, the former is preserved, but the later is not preserved.
32. In the instant case, after the amendment has been brought about there can be no investigation in respect of the deleted right inasmuch as the right to hold land under Section 14(1)Q(sic) of the said Act is totally taken away. Therefore, on the basis of doctrine of Lord Morris, no right is preserved.
33. The learned Counsel for the State has on the other hand relied on a judgment of the Supreme Court in the case of Mahadeolal Kanodia v. Administrative General of West Bengal, . That case also considered the effect of amendment, which was couched in simple language as the one with which we are concerned here. Relying on the principles elaborated by the learned Judges in paragraph 8 of the judgment, the learned Counsel submitted that, in the instant case, it is an amendment of substantive provision by way of deletion and has not been substituted by any new corresponding provision. Therefore, obvious intention of amendment is to delete the said provision altogether and there is no ambiguity about the same. The learned Counsel further submitted that in a case where there is no ambiguity, the Court should not try to import one. The learned Counsel submitted that even after the amendment is held prospective in nature that also does not enure to the benefit of the said Society inasmuch as on today the said Society has no right.
34. This Court finds some merit in the aforesaid contentions. This Court is unable to grant any relief to the petitioner. Even though the order of the Tribunal does not proceed on a sound basis, but having regard to the amendment to Section 14(1)Q(sic) of the said Act, the substratum of the right of the petitioner to hold land beyond the ceiling limit under Section 14M is taken away.
35. This Court therefore declares that the right of the petitioner-Society to hold land is governed by the ceiling limit prescribed under Section 14M and, as such, the petitioner cannot get any relief in this petition. The writ petition is, thus dismissed.
36. No order as to costs.
S.P. Talukdar, J.
37. I agree.
37. Later:
After pronouncement of the judgment learned Advocate for the writ petitioner prays for stay of operation of the judgment and order. Such prayer is considered and declined.
Asok Kumar Ganguly & S. P. Talukdar, JJ.