Calcutta High Court (Appellete Side)
Shyama Prased Mondal & Ors vs Susanta Kumar Saha on 30 January, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CO No. 808 of 2017
With
C.O 402 of 2018
Shyama Prased Mondal & Ors.
-Versus-
Susanta Kumar Saha
For the Petitioners: Mr. Haradhan Banerjee,
Mr. Soumitra Banerjee,
For the Respondents: Mr. Dilip Kumar Maity
Mr. Uttam Kumar Kamila Heard on: January 18, 2019.
Judgment on: January 30, 2019.
BIBEK CHAUDHURI, J. : -
1. C.O No.808 of 2017 is an application under Article 227 of the Constitution of India filed by the preemptees/petitioners challenging legality and propriety of the judgment and order of dismissal dated 21st January, 2017 passed by the learned Additional District Judge, 2nd Court, Krishnagar, Nadia in Misc Appeal No.9 of 2015 instituted against the judgment and order passed by the learned Civil Judge (Junior Division), 1st Court at Krishnagar in Misc Preemption Case No.70 of 2009.
2. Misc Preemption Case No.70 of 2009 under Section 8(1) of the West Bengal Land Reforms Act (hereinafter referred to as the said Act) was allowed on contest without any order as to cost. By the impugned 2 judgment and order, the learned Appellate Court affirmed the judgment and order passed by the learned Civil Judge (Junior Division), 1st Court, Krishnagar in Misc Preemption Case No.70 of 2009 and dismissed the appeal on contest.
3. During the pendency of C.O 808 of 2017, the preemptor/opposite party put the order of preemption in execution. On 23rd November, 2017, the present petitioners filed a petition praying for keeping the case in abeyance till the disposal of C.O 808 of 2017. The learned Civil Judge (Junior Division), 1st Court Krishnagar rejected the aforesaid petition and gave liberty to the opposite party to take step in execution case. The said order dated 23rd November, 2017 is impugned in C.O 402 of 2018.
4. A coordinate bench of this Court by order dated 27th July, 2018 observed that C.O No.808 of 2017 should be heard alongwith C.O No.402 of 2018 subject to the order of the Chief Justice.
5. The Chief Justice accordingly passed an order dated 6th August, 2018 to the effect that the C.O No.402 of 2018 would be heard alongwith C.O No.808 of 2017.
6. Hence, both the revisional applications are heard analogously and disposed of with common judgment.
7. Facts of C.O No.808 of 2017 in a nutshell are as follows:-
8. The property in question recorded in plot no.3313 appertaining to khatian No.2282, J.L No.18 of mouja Kaliganj in the District of Nadia measuring about 51 decimals of land was jointly owned by one Subal Ch.
Saha and Susanta Kumar Saha (opposite party herein). The said Subal Chandra Saha transferred 23 decimals of land out of his undivided share in the property in question in favour of the petitioners by executing a deed of sale dated 31st March, 2006 at a consideration price of Rs.2,50,000/= 3 which was registered on 30th October, 2009 in favour of the present petitioners without serving any notice upon the opposite party. Therefore, the opposite party as original petitioner filed Misc. preemption case no. 70 of 2009 against the petitioners for preemption of the property in question against the present petitioners in the 1st Court of the Civil Judge (Junior Division), Krishnagar.
9. The petitioners contested the said case by filing written objection in the trial court wherein, apart from denial of the case of the preemptor, they specifically pleaded that their vendor had sold out his entire share in the property in question and, therefore, the preemptor/opposite party would not be entitled to preempt the said property. Moreover, the opposite party previously filed a suit for permanent injunction against the present petitioners which was registered as Title Suit no. 99 of 2006. In the said suit, the petitioners unequivocally disclosed that they had purchased the property in question from Subal Chandra Saha. Therefore, the opposite party had specific knowledge of impugned sale of the property in question way back in 2006 and the Misc Preemption Case was hopelessly barred by limitation.
10. The learned trial judge upon hearing of the case allowed the application under Section 8(1) of the said Act by a judgment and order dated 14th January, 2015.
11. The said order passed by the learned Civil Judge (Junior Division), 1st Court, Krishnagar in Misc preemption Case No. 70 of 2009 was uphold by the learned Additional District Judge, 2nd Court, Krishnagar and Misc Appeal no. 9 of 2015 was dismissed on contest.
12. Mr. Haradhan Banerjee, Ld Advocate for the petitioners has urged that the impugned order of dismissal of the misc-appeal affirming the judgment and order of the preemption passed by the learned trial judge suffers from patent illegality in view of the fact that the property in 4 dispute is non-agricultural land and preemption under section 8 of the said Act is not permissible under the facts and circumstances of this case. It is contended by Mr. Banerjee that in the case of Paschim Banga Rajya Bhumijibi Sangha vs. State of West Bengal reported in 1996(2) CLJ 285, the definition of land as contained in section 2(7) and section 3A(3) vis-à-vis section 14V of the said Act was declared as ultra vires of Article 300A of the Constitution. Undoubtedly, the said reported decision has been challenged before the Supreme Court by the State of West Bengal and operation of the order passed by the Division Bench of this Court is stayed. But by such interim order of stay of operation of the said judgment, its existence is not wiped out. Unless a decision is set aside by the Superior Court, the said decision remains binding as a precedent. In support of his argument, he relies upon a decision of the Division Bench of this Court in the case of Pijush Kanti Chowdhury vs. State of West Bengal & Ors. reported in 2007(3) CHN 178.
13. Mr. Banerjee next refers to one other decision of this Court in the case of Prafulla Kumar Maity vs. Amal Krishna Mishra and Ors. reported in 1997(11) CHN 20. Paragraph 12 of the aforementioned report reads such:
"However, recently this Hon'ble Court in the case of Paschim Banga Bhumi Jibi Krishak Samiti (sic) & Ors vs. State of West Bengal & Ors. 1996 (II) CHN 212 which is a Bench decision, has held inter alia, in clear terms that provisions of s. 14V of the West Bengal Land Reforms (Amendment), Act, 1981 vis-à-vis, the definition of land as contained in s. 2(7) and s. 3A of the West Bengal Land Reforms (3rd Amendment) Act, 1986, Ultra-vires of Art. 300A of the Constitution of India, and the effect of the said decision is that the original definition of land under the 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 5 pre-emption under s. 8 of the West Bengal Land Reforms Act, 1955."
14. Coming to the instant case, Learned Counsel for the petitioners submitted that the property in question is non agricultural land which was sold out to the petitioners by one Subal Chandra Saha. In view of the decision of this Court in Paschim Banga Rajya Bhumijibi Sangha (Supra), amended definition of land in section 2(7) of the said Act has been declared ultra vires of the Constitution, meaning thereby the non agricultural land is kept out of the purview of the West Bengal Land Reforms Act. Therefore, preemption proceeding under Section 8 of the said Act is not maintainable in law.
15. Paragraphs 34 and 35 of Paschim Banga Rajya Bhumijibi Sangha (supra) are relevant for the instant case which are reproduced below:
"34. By reason of 1981 Amendment Act, Section 2(7) had undergone a drastic change which brings within its purview, lands of every description in the following terms:-
"2(7) 'Land' means land of every description and includes tank, tank-fishery, fishery, homestead or land used for the purpose of live-stock breeding, 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 and things attached to the earth of permanently fastened to anything attached to earth."
35. However, in my opinion, the said question is academic inasmuch as the question which has to be posed and answered in these appeals, pre-dominantly is as to whether the State Legislature had the legislative competence to enact the impugned Amending Acts. If they had the legislative competence, the question as to whether non- agricultural land and other lands can be included within the purview of West Bengal Land Reforms Act would be a futile exercise. In terms of Item 18 of the List 2 of the 7th Schedule of the Constitution of India there cannot be any doubt that the State has the legislative competence to make 6 any legislation both in respect of agricultural land as also non-agricultural lands."
16. Thus, it is clear from what has been recorded above that this Court in Bhumijibi Sangha (Supra) did not declare section 2(7) of the said Act ultra vires of the Constitution.
17. The question as to whether preemption under section 8 of the said Act is permissible in respect of non-agricultural Bastu land came up for consideration in Ranjit Kumar vs. Pankoj Mukhopadhyay reported in 2016(2) ICC (Cal) 218 when this Court relying on the decisions in Ramala Chowdhury vs. Suman Ghosh reported in 2010(4) ICC (Cal) 368 and Sabri Properties Pvt. Ltd. vs. CTS Industries Ltd reported in 2015(2) CHN (Cal) 410 held that preemption under section 8 of the said Act is permissible in respect of transfer of non-agricultural land.
18. The ratio of Promode Ranjan Banerjee vs. Nirapada Mondal reported in 1980(1) CLJ 201 cited by Mr. Banerjee is also not applicable in the facts and circumstances of this case in view of the fact that in PRB Sangha vs. State of West Bengal reported in 1986(2) CHN 1 this Court has struck down the West Bengal Land Holding Revenue Act, 1979.
19. By West Bengal Land Reforms (amendment) Act, 2000 the definition of 'holding' in Section 2(6) of the said Act has been omitted and in its place Section 2(6) defines 'co-sharer of a raiyat in a plot of land' which means a person other than the raiyat who has an undemarcated interest in a plot of land along with the raiyat. In view of the such amendment, the decision of this court in Promode Ranjan Banerjee (supra) to the effect that a co-sharer of a holding ceased to be a co-sharer and each raiyat of a holding becomes a direct tenant under the State and therefore preemption under Section 8 of the said Act on the ground of co- sharership is not available, does not hold anymore a good law. Reliance may be placed in support of the observation of this court on a Special 7 Bench decision of this court in the case of Sk Sarafat Ali and Ors. vs. Hossain Ali Mulla and Ors. reported in 2002 (4) CHN 285.
20. It will not be out of place to mention here that in Prafulla Kumar Maity (supra) the learned Single Judge of this Court after discussing the effect of inclusion of Section 3A of the West Bengal Land Reforms (Amendment) Act 1981 vis-à-vis the amended definition of 'land' in Section 2(7) of the said Act finally held in paragraph 13:-
"13. Accordingly, as per the said substituted s. 2(10), a "raiyat" may also hold apart from agricultural and/or homestead land, land which is being used for non- agricultural purpose and such land would also form a part of his holding and hence the same can also be pre-empted under s. 8 of the West Bengal Land Reforms Act, 1955 being the land of a "raiyati holding".
21. Accordingly, as per the said substituted Section 2(10), a raiyat may also hold apart from agricultural and/or homestead land, land which is being used for non-agricultural purpose and such land would also form a part of his holding and hence the same can also be preempted under Section 8 of the West Bengal Land Reforms Act, 1955 being the land of a raiyati holding.
22. Mr. Banerjee also refers to the decisions of this Court in the cases of Kalidashi Nath vs. Obedulla Sheikh reported in 81 CWN 806 and Madan Mohan vs. Sishu Bala Atta & Ors. reported in 76 CWB 1058. Both the reports, in my considered view, has no relevance under the facts and circumstances and issues involved in the instant revision.
23. No other point is canvassed by the learned counsel for the petitioners which assailing the impugned order.
24. In view of the discussion made hereinabove and the reasons aforesaid, I do not find any illegality in the impugned order dated 21st January, 2017 passed by the learned Additional District Judge, 2nd Court 8 at Krishnagar in Misc Appeal No.9 of 2015 affirming the order of preemption passed by the learned Civil Judge (Junior Division), 1st Court at Krishnagar in Misc Preemption Case No.70 of 2009. The instant revision, being CO No.803 of 2017 is accordingly dismissed, however, without any cost.
25. Now I shall proceed to decide C.O No.402 of 2018 filed by the petitioners challenging the legality and validity of order No.48 dated 23rd November, 2017 passed by the learned Civil Judge (Junior Division), 1st Court, Krishnagar, Nadia in Misc Preemption Execution Case No.70 of 2009. The impugned order reads thus:
"petitioner files Hazira.
Opposite Party. JDR files a petition praying for time and the LD. Counsel for the Opposite Party submits that the case may be kept in abeyance until and unless order is received from the Hon'ble Calcutta High Court.
The LD. Counsel for the Opposite Party also files an Advocate's letter stating therein that the appeal preferred by him is running in the list.
Other side raised objection.
It is pertinent to note herein that the Hon'ble Calcutta High Court in CRR 3605/2007 had been pleased to observe that no adjournment can be allowed because connected petition is pending before the Hon'ble Court unless and until stay order is granted by the Hon'ble Court.
Herein, in the instant case, the Opposite Party case is that they have moved the Hon'ble Calcutta High Court but the frank submission is that there is no order of stay as of yet. As such the petition of the Opposite Party being devoid of merits and in consonance with the order of the Hon'ble Calcutta High Court, is hereby rejected.
It is also pertinent to note that vide order dated 21.06.16 passed in C.O No.3674/2005, the Hon'ble Calcutta High Court has been pleased to observe:
"That Court both in the administrative side as well as in the judicial side directed the learned courts not to keep the matter pending unless there is a specific order of stay of further proceedings."9
It is needless to say that mere filing of a revisional application before this Court cannot be a ground to stall, the proceeding before the learned Trial Court."
In view of the above, the Petitioner is directed to take steps in execution case."
26. Mr. Banerjee, for the petitioner has raised a technical but interesting point referring to Section 9 of the said Act. 9(1) of the said Act runs such "9. Revenue Officer to allow the application and apportion lands in certain cases.- (1) On the deposit mentioned in sub-section (1) of section 8 being made, the Munsif shall give notice of the application to the transferee, and shall also cause a notice to be affixed on the land for the information of persons interested. On such notice being served, the transferee or any person interested may appear within the time specified in the notice and prove the consideration money paid for the transfer and other sums, if any, properly paid by him in respect of the lands including any sum paid for annulling encumbrances created prior to the day of transfer, and rent or revenue, cesses or taxes for any period. The Munsif 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 on such sum being deposited, he shall make an order that the amount of the consideration money together with such other sums as are proved to have been paid by the transferee or the person interested plus ten per cent of the consideration money be paid to the transferee or the person interested out of the money in deposit, the remainder, if any, being refunded to the applicant. The Munsif shall then make a further order that the portion or share of the plot of land be transferred to the applicant and on such order being made, the portion or share of the plot of land shall vest in the applicant."
27. Referring to the above provision, it is submitted by Mr. Banerjee that Section 9 stipulates the procedure as to how an application for preemption may be dealt with and disposed of. It is the duty of the learned Civil Judge (Junior Division) under Section 9(1) of the said Act to proceed further in the preemption proceeding if the deposit of consideration money and the amount of compensation at the rate of 10% 10 of that amount is deposited by the applicant. The learned Civil Judge shall also enquire as to whether the transferee has spent any amount for the development or improvement of the property in question and direct the preemptor to deposit such amount also to compensate the transferee. Then the learned judge shall proceed to dispose of the case in accordance with law. Mr. Banerjee particularly refers to the last part of Sub-Section 1 of Section 9 of the said Act which states, "...on such order being made, the portion or share of the plot of land shall vest in the applicant."
28. It is submitted by Mr. Banerjee that Section 9 clearly lays down a procedure of vesting of land in favour of the preemptor. Such vesting will automatically take effect on passing of the order under Section 8 of the said Act. Therefore, the said Act does not provide for any provision of execution of an order passed under Section 8 of the said Act. Accordingly, Misc Preemption Execution Case No.70 of 2009 being not maintainable for want of any provision for execution under the said Act, the impugned order quoted hereinabove is also illegal and liable to he set aside.
29. Mr. Maity, learned Advocate for the opposite parties is not called upon to answer to the argument advanced by the learned counsel for the petitioner.
30. Dictionary meaning of the term vest is "to give subject the legal right or power to do something; to make subject the legal owner of land or property" (vide, Oxford Advanced Learner's Dictionary 9th Edition).
31. The word 'vest' has been used in Sections 4, 5, 5A, 6, 7, 8 and 10 of the West Bengal Estates Acquisition Act, 1953. The word 'vest' is also used in Section 14S and 14SS of the West Bengal Land Reforms Act.
32. It is needless to say that by introduction of West Bengal Estates Acquisition Act, all estates and rights of every intermediary in each such estate vested in the state free from all encumbrances on issuance of 11 notification with effect from 15th April, 1955 corresponding to 1st Day of Baisakh of the Bengali year 1362. Section 5 deals with the effect of notification of vesting of estates and rights of the intermediaries. Section 6 of the Estate Acquisition Act entitles an intermediary to retain certain lands with effect from the date of vesting. Section 10 of the West Bengal Estate Acquisition Act makes a detailed provision for taking over possession of the vested land by the collector on behalf of the State Government.
33. Similarly, Section 14S of the West Bengal Land Reforms Act provides for vesting of land in excess of ceiling area owned by a raiyat. Section 14SS is the procedure as to how the possession of vested land would be taken over by the State.
34. Since the process of vesting under the West Bengal Estates Acquisition Act and also under the West Bengal Land Reforms Act is conducted by administrative action, procedure for taking over possession of vested land under Sections 10 and 14SS of the said Acts is in the nature of execution.
35. It is needless to say that Section 8 of the said Act gives right to the Bargadar in the plot of land, or a co-sharer of a raiyat in the plot of land or any raiyat possessing land adjoining such plot of land of preemption. While Section 9 prescribes the procedure, Section 10 deals with the consequences of an order of preemption. The period of limitation for filing an application for preemption by each category of the applicants and the forum for appeal against an order under Section 8 of the said Act have also been prescribed under the said Act.
36. Therefore, the provisions of preemption under West Bengal Land Reforms Act is a self contained Code prescribing the right of preemption to be exercised by different categories of persons whose right to preempt 12 has been recorgnised under the said Act. Even Section 3 of the said Act provides for an overriding effect over the other laws. Section 3 reads such:
"3. Act to override other laws.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or in any custom or usage or contract, express or implied, or agreement or decree or order or decision or award of a court, tribunal or other authority."
37. While deciding a question as to whether Section 5 of the Limitation Act is applicable for condonation of delay in filing an application under Section 8 of the said Act, this Court in the case of Minor Subir Ranjan Mondal vs. Sitanath Mukherjee reported in 1994(1) CLJ 106 held that though the preemption proceeding is initiated by filing an application, but considering the nature of the proceeding where rights of the parties are finally decided, it was held that the application under Section 8 of the said Act is in the nature of plaint filed in a suit and therefore Section 5 of the Limiation Act would not apply in a proceeding under Section 8 of the said Act. The decision of Minor Subir Ranjan Mondal vs. Sitanath Mukherjee (supra) was approved by the Division Bench of this Court in Serish Maji vs. Nishit Kumar Dolui reported in 1999 (1) CHN 365.
38. The question as to whether a proceeding for preemption under the said Act is in the nature of suit or not came up for consideration before the Supreme Court in the case of Gopal Sardar vs. Karuna Sardar reported in (2004) 4 SCC 252. The Supreme Court also held that the proceeding so initiated for preemption is in the nature of suit.
39. Thus it is conclusively settled that a proceeding for preemption under Section 8 of the said Act is in the nature of suit and the application is considered to be a plaint.
1340. Needless to say that a suit culminates with passing of a 'decree'. Section 2(2) of the Code of Civil Procedure defines decree in following words:-
"(2). "Decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default."
41. Thus an order under Section 8 of the said Act is in the nature of decree that determines the rights and liabilities of the parties with regard to the matters in controversy as to whether the applicant being either a Bargadar, or a co-sharer or a contiguous land owner is entitled to preemption of a plot of land or not.
42. This issue can also be answered referring to the provision of Section 57 of the said Act which states as follows:-
"57. Powers of officers dealing with proceedings under this Act. -Subject to the provisions of this Act and any rules made thereunder, any officer in dealing with proceedings under this Act shall exercise the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of -
(a)...
(b)...
(c)...
(d)...
(e)...
(f) enforcing or executing orders including an order for restoration of possession as if such orders were decrees of a Civil Court, ..."
43. Clause (f) of Section 57 empowers an officer in dealing with proceeding under the said Act to exercise such powers of the Civil Courts 14 under the Code of Civil Procedure for enforcing or executing orders including an order for restoration of possession as if such orders are decrees of the Civil Court. Accordingly, a Civil Judge (Junior Division) is empowered to execute an order under Section 8 of the said Act taking recourse to the provisions of the Code of Civil Procedure relating to execution of the decree as provided in Order XXI of the Code.
44. For the reasons recorded above I conclude that by the term 'vest', the legislature wanted to mean that the ownership of the land in question in respect of which order of preemption is passed shall vest in the preemptor by virtue of Section 9(1) of the said Act, but for recovery or restoration of possession of the land in question, the Civil Court has every power and authority to put the order of preemption in execution in terms of the provisions contained in Section 57(1)(f) read with Section 9(1) of the said Act in accordance with the provisions contained in order 21 of the Code of Civil Procedure.
45. The above discussion leads me to hold that C.O No.402 of 2008 is devoid of any merit and liable to be dismissed.
46. Accordingly both the revisions being C.O No.808 of 2017 and C.O No.402 of 2018 are dismissed on contest, however without any cost.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.)