DEBI DAS GHOSH Vs. RAMANI MOHAN ROY

JUDGEMENT

(1.) The main point that arises for determination in this Rule obtained by certain transferees of certain tanks is as to whether the West Bengal Non-Agri-cultural Tenancy Act would govern this tenancy. The opposite party No. 2 was the tenant in respect of the tanks and transferred the same to the petitioners, and the opposite party No. 1 filed an application for pre-emption under Sec. 24 of the West Bengal Non-Agricultural Tenancy Act, 1949. The petitioners contended that the tenancy was governed by the Bengal Tenancy Act and not by the West Bengal Non-Agricultural Tenancy Act, 1949. Both the courts below overruled this contention and hence this Rule.

(2.) The definition of the term "non-agricultural land" in the West Bengal Non-Agricultural Tenancy Act, 1949 runs as follows: "Non-agricultural land means land which is used for purposes not connected with agriculture or horticulture and includes any-land which is held on lease for purposes not connected with agriculture or horticulture irrespective of whether it is used for any such purposes or not .... " These tanks were held on a lease executed by one Ushabati Debi in favour of one Bholanath as far back as the 12th of Feb., 1931 (Ext. A). This pattah does not clearly show the purpose for which the lease was taken but it has been stated therein that the selami was Rs. 25 /-- and the rent was fixed at Rs. 1.00 for all time to come and was neither to be reduced nor increased and that the lessee could excavate tanks, wells etc. and could erect pucca structures, kutcha structures and grow trees on it and cut trees therefrom and had also every right to make a gift or sell the properties. The lessee was also a Brahmin and his occupation was shown as money-lending. Ex facie, the lease would show that it was not for any purpose connected with agriculture or horticulture. In the R. S. record-of-rights also the status of the tenant has been shown as dakhalkar and not as raiyats. That would also indicate that the lands would be non-agri-cultural lands within the meaning of the term in the West Bengal Non-Agricultural Tenancy Act, 1949.

(3.) Mr. Chandranath Mukherjee, learned Advocate appearing for the petitioners, submits that in the documents by which the opposite party No. 1 had purchased and by which his clients had also purchased, the status of the vendors was shown as that of raiyats. and further in the khatian the tanks were shown as being used for purposes of irrigation. Mr. Mukherjee has drawn my attention to the decision reported in Nl Govinda Misra Vs. Rakmini Deby, AIR 1944 Calcutta 421 and also in Surendra Kumar Sen Choudhury Vs. Sm. Chandratara Nath and ors., 34 CWN 1063 . In Nilgovindas case the Court was considering whether certain properties would be agricultural lands under the Hindu Womens Rights to Property Act, 1937 and the Court found that irrigated tanks should be regarded as agricultural lands. In Surendras case this Court found that the lessee in that case was described as a cloth-seller and a grihastha and the pattah created proja svatva tenancy right and the purpose of the lease was rearing fish in the tank and stacking grass for cattle on the banks etc. There was also evidence that the lessees families were cultivators and used their cattle in cultivation. There were provisions for payment of cesses by the lessees and 57 for additional rent for additional area discovered on measurement. This Court held that all these facts taken together would go to show that the lease was for agricultural purposes and as such would be governed by the Bengal Tenancy Act. In the instant case, as I have already pointed out, the lessee was a Brahmin and not an agriculturist, so to say. His occupation was money-lending. He was not liable to pay any cesses either under the lease or even under the khatian, and the rent was also fixed for all time to come. Therefore, Surendras case would not apply to the facts of this esse. As regards Nil Govindas case, there the user of the lands was being considered for purposes of another Act. Moreover, even if it be taken for granted that tanks which are used for purposes of irrigation should be regarded as being used for agricultural purposes, still the definition of the term "non-agricultural land" in the West Bengal Non-Agricul-tural Tenancy Act, as referred to above, would show that such user cannot make it an agricultural land and take it away from the purview of the West Bengal Non-Agricultural Tenancy Act, 1949 if the original lease included any land which was held for purposes not connected with agriculture. As I have already pointed out, I am in total agreement with the views of the learned courts below that the lease was for purposes not connected with agriculture. In the circumstances, even if the tanks are used for agricultural purposes, this fact will not take away these tanks from the purview of the West Bengal Non-Agricultural Tenancy Act, 1949. Mr. Mukherjee has also drawn my attention to the definition of "agricultural lands" and "non-agricultural lands" in the West Bengal Estates Acquisition Act, 1953. But, in my view those definitions would be only for the limited purpose of that Act and not for the West Bengal Non-Agricultural Tenancy Act, which has specifically defined "non-agricultural land". The admissions in the kobalas would not make these lands agricultural lands when the lease was executed for purposes not connected with agriculture. In the circumstances, this Rule fails and is discharged. Each party will, however, bear its own costs in this Rule.