S M BINAPANI SENGUPTA Vs. PROSANTA KUMAR SEN

JUDGEMENT

(1.) This revision is directed, against the judgment and order passed in Misc. Appeal No. 77 of 1985 by the 3rd Additional Court of District Judge Murshidabad. The petitioner in Misc. Case No. 36 of 1978 filed a case for pre-emption under section 24 of the West Bengal Non-Agricultural Tenancy Act. The Learned Munsif granted the pre-emption prayed for. In appeal the pre-emptee did not obtain any relief. The pre-emptee therefore preferred this revision.

(2.) It is contended on behalf of the pre-emptee that the Misc. Case under section 24 of the West Bengal Non-Agricultural Tenancy Act can no more succeed. In view of the definition of land as given in section, 2(7) of the West Bengal Land Reforms Act of 1955 by amendment in 1981, land of every description has been brought within the purview of West Bengal Land Reforms Act, 1955. Some exception of course has been made. But Non- Agricultural Tenancy Act has been brought within this amended definition of land retrospectively with effect from 7-8-69 by W.B. Act L of 1981. it is argued that the effect of this amendment is to do away with all Non-Agricultural tenancies. So pre-emption under that Act is no more available to the petitioner. Having regard to the definition of land as incorporated by amendment of 1981 of West Bengal Land Reforms Act no petition under section 24 of the West Bengal Non-Agricultural Tenancy Act is any more maintainable. The learned Counsel for the pre-emptor relies upon a decision in Ram, Kissin Shaw v. Lachmonia Debi. 91 CalWN 659. It is argued that the Division Bench opined that in spite of the amendment of the West Bengal Land Reforms Act by amendment of 1981 an application under section 24 of the Non-Agricultural Tenancy Act is still maintainable. Section 3A as originally stood very much weighed with the Hon'ble Judges td up-held the maintain. ability of section 24 of the West Bengal Non-Agricultural Tenancy Act. Their Lordships were of opinion that notification under section 4 of the West Bengal Estate Acquisition Act was necessary to take away the right and interest of Non-Agricultural tenants and untenants. In other words, until and unless a valid notification under section 4 of the West Bengal Estate Acquisition Act is made mentioning the date from which all the rights and interest of Non-Agricultural tenants and untenants would vest in the State free from encumbrances those tenancies do not cease to exist. Since there- after section 3A of the West Bengal Land Reforms Act has further undergone amendment by West Bengal Land Reforms (Third Amendment) Act of 1986 which has been given effect to on 9-9-1980. It may be noted that section 4 of West Bengal Estates Acquisition Act as originally incorporated in section 3A of the West Bengal Land Reforms Act by amendment of 1981 has 'been deleted. The consequence is that the consideration which weighed with the Hon'ble Judges to decide the point in favour of the pre-emptor in Ram Kissin's Case (supra) lost all its force. In other words, the amendment of 1986 rendered the judgment in Ram Kissin's case void. Further, section 3A(S) of West Bengal Land Reforms Act as amended by deeming provision has given effect to the provision of section 3A with effect from 9-9-80. So notification under section 4 of West Bengal Estates Acquisition Act as held by the Learned Judges is no more necessary. Therefore, it is now no authority to the proposition that the right of pre-emption under section 24 of the Non-Agricultural Tenancy Act will survive despite amendment of West Bengal Land Reforms Act by reason of West Bengal Land Reforms (Third Amendment) Act of 1986. After the sweeping amendment of the definition of land the right of the Non-Agricultural Tenants to pre-empt under Non-Agricultural Tenancy Act has ceased. In A later case a Division Bench of this court had occasion to consider as to whether any application under section 24 of the West Bengal Non-Agricultural Tenancy Act is maintainable. A. M. Bhattacharjee, J. in Niranjan v. Shyamal, 1988(11) CHN 297, speaking for the Bench was of opinion that an application under section 24 of' the Non-Agricultural Tenancy Act is no more maintainable. According to the Bench only petition under section 8 of the Land Reforms Act has to be filed. This Bench of course did not deal with the decision in Ram Kissin's case (supra). 1 have already pointed out the reasons as to why the decision in Ram Kissin's case will no more hold good. Even, if the Division Bench in that later decision did not answer the point as raised in the earlier decision the earlier judgement is no more the good law. 1 am therefore in agreement that the later Division Bench decision to hold that the pre-emption under section 24 of. the West Bengal Non-Agricultural Land ,cannot succeed. The judgement of the two courts below are therefore over- ruled. The petitioner is at liberty to file a fresh application under section 8 of the West Bengal Land Reforms Act and ask for proper relief, if not otherwise barred. The revisional application accordingly is disposed of.

(3.) Let copy of this order go down to the court below forthwith. Appeal disposed of of.