Calcutta High Court (Appellete Side)
Sunil Debnath vs Smt. Tripti Ghosh Majumdar on 17 August, 2015
Author: Harish Tandon
Bench: Harish Tandon
60 17.08.15 C.O. 2563 of 2015
akd
Sunil Debnath
Vs.
Smt. Tripti Ghosh Majumdar
--------
Mr. Sabyasachi Bhattacharyya, Mr. Purnasish Ray.
... for the petitioner.
Mr. Ashis Bagchi, Mr. Satyajit Mandal, Mr. Suranjan Mandal.
... for the opposite party.
Both the Courts below allowed an application under Section 8 of the West Bengal Land Reforms Act, 1955 filed by the opposite party. There is no dispute that the said application was taken out within the statutory period provided under the said Section.
The first point of defence taken before the Trial Court is that where the property is included within the Urban Agglomeration and governed by the provisions of Urban Land (Ceiling and Regulation) Act, it excludes the operation of West Bengal Land Reforms Act, 1955; and the second point relates to the maintainability of the preemption application under the said provision, as the nature of the land is Bastu and, therefore, the same is not coming within the definition of "land" given under Section 2 (7) of the West Bengal Land Reforms Act.
Both the Courts have held against the petitioner and found that the application for preemption is maintainable.
Mr. Sabyasachi Bhattacharyya, learned Senior Advocate appearing for the petitioner, submits that the point of non-applicability of the West Bengal Land Reforms Act in respect of the property included within the Urban Agglomeration has been turned down as such inclusion was after the institution of the proceeding. According to him, if on the date of initiation of the proceeding there was no bar in maintaining the same, the said proceeding cannot be held to be non-maintainable because of the subsequent amendment. He further submits that the object underlining the incorporation of the West Bengal Land Reforms Act is predominantly for agricultural land and necessarily excludes its applicability in respect of the Bastu land. He thus submits that the preemption application is not maintainable and should have been dismissed by both the Courts below.
Mr. Bagchi, learned counsel for the opposite party, submits that both the points have been covered by a decision of this Court and both the Courts below have correctly decided the disputes. To buttress the aforesaid submission he placed reliance upon a judgement in case of Ramala Chowdhury & Anr. vs. Sumon Ghosh reported in 2010 (1) CLJ (Cal) 556 and an unreported judgement of this Court in case of Sabri Properties Pvt. Limited vs. CTS Industries Limited (C.O. 561 of 2013 decided on 12th November, 2014). He strenuously submits that after the definition of "raiyat" as well as "land" in the definition section of West Bengal Land Reforms Act, the Bastu land is also included within the purview of the West Bengal Land Reforms Act and, therefore, the preemption application is maintainable.
So far as the point of Urban Agglomeration is concerned, this Court feels that even if the observations of both the Courts below does not appear to be correct, it hardly makes any difference in the decision. The identical point arose before the Co- ordinate Bench of this Court in case of Ramala Chowdhury (supra), when the Court noticed the earlier judgements holding in favour of non-applicability of West Bengal Land Reforms Act in case of land situated within the Urban Agglomeration.
The Co-ordinate Bench relied upon Section 1 (2) of the West Bengal Land Reforms Act, which relates to the applicability of the said Act to whole of West Bengal except the area described in Schedule (1) of the Kolkata Municipal Corporation Act, 1980 and the other area, which the State Government by notification extended the operation of the said Act. Since the property, which the State Government did not include within Schedule 1 (2) of the Kolkata Municipal Act, 1980, the preemption application is maintainable in respect of those land as well. It would be relevant to quote paragraph 13 of the said judgement, which runs thus:
"13. As a matter of fact I had the occasion to deal with the legality of the decision passed by a learned Single Judge of this Court in the case of Swapan Kumar Kar v. Salil Kumar Dey (supra) earlier, while dealing with another revisional application in the case of Rajit Neogi v. Pradip Kumar Sen, reported in 2010 (1) Cal LJ (Cal) 81 wherein an identical issue was raised regarding applicability of Sections 8 and 9 of the West Bengal Land Reforms Act in an area where the West Bengal Land (Ceiling and Regulation) Act is in operation. While dealing with the said revisional application, this Court elaborately discussed the legality of the decision rendered in the case of Swapan Kumar Kar (supra) and ultimately held that the decision of the learned Single Judge in the case of Swapan Kumar Kar (supra) is a judgment in per incurium as the said judgment was delivered without taking note of theprovision of Section 1 (2) of the West Bengal Land Reforms Act which provides that the provisions contained in the said Act is applicable to the whole of the West Bengal excepting the excluded area as mentioned therein. Since this Court also elaborately discussed the effect of the Division Bench decision of this Hon'ble Court in the case of Paschim Banga Krishak Samity v.
The State of West Bengal (supra) in the said decision, this Court does not think it necessary to repeat the same herein once again. But this much this Court wants to make it clear that the Urban Agglomeration of Chandannagore does not fall within the excluded area of as per Section 1 (2) of the West Bengal Land Reforms Act, 1955."
This Court, therefore, does not find any substance in the said point nor feels that any dissenting view is required to be taken in this regard.
On the other point the identical question arose before me in case of Sabri Properties Pvt. Limited (supra) and this Court noticed the change in the definition assigned to "raiyat" and "land" and held that if it includes the homestead as defined under the West Bengal Estate Acquisition Act, 1953, it is no longer correct to say that the preemption under the West Bengal Land Reforms Act should be restricted to a land meant for agricultural purposes only in these words:
"The original definition of the land as stood prior to the amendment was restricted to an agricultural land other than the land comprised in tea garden and includes the homestead. The definition of the raiyat was also restricted to a person who holds land for the purpose of agriculture. By West Bengal Land Reforms (Amendment) Act, 1981 giving a retrospective effect from 7th August, 1969, the definition of the land saw the radical change and the definition as stood means land of every description which includes homestead as well. The explanation inserted thereto assigned the same meaning of homestead as in the West Bengal Estate Acquisition Act, 1953.
It admits no ambiguity to say that by using the expression means and includes the legislature intended to give a wider definition that its grammatical meaning (See Sk Gupta v. K.P. Jain reported in AIR 1979 SC 734). If the definition of the raiyat remained unchanged i.e. a person holding a land for agricultural purposes, it could probably be argued that such inclusive definition should be interpreted in tune with the dominant purposes. Simultaneously the definition of the raiyat was also changed by excluding the word agricultural and the definition which stood today does not restrict the land for agricultural purposes but for any other purposes. When the homestead is retained in an inclusive definition and the predominant purposes, which originally stood for agriculture, has been changed to any other purposes, the restricted meaning that the predominant purpose i.e. an agricultural purpose should still be adhere to would frustrate the intendment of the legislature which brought the amendments subsequently."
On both the points this Court finds that both the Courts below have not committed any illegality and with material irregularity in deciding the application.
The revisional application is thus dismissed.
There will be no order as to costs.
(HARISH TANDON, J.)