HIMADRI SEKHAR BISWAS Vs. ASHALATA BISWAS

JUDGEMENT

(1.) The application is made for recall of my ex parte order dated 25th March, 1991 when only the petitioner was represented. I think there was sufficient cause for non-appearance on the part of the opposite party and as such I re-call the order dated 25th March 1991, as indicated to appearing counsel that in case I re-call the order I would again hear the application immediately on merits upon address by both sides, the matter was re-heard. Upon hearing I think that the order passed on 25th March, 1991 was substantially correctly passed. The said order shall therefore remain as it is along with the judgment and reasons but not as an order passed on 25th March, 1991 but as an order passed to-day, on hearing As such the period of disposal of the appeal fixed for three months from that date shall run from today.

(2.) Certain other observation also have to be made by me. It was argued on the part of the opposite parties that in view of the decision of the Division Bench of this Court in the case of Prasad Kumar Dhara reported in 1982 Vol. II, Calcutta High Court Notes page 1 it should be held that the meaning of homestead and tank to be attached to the definition of land given in section 2 sub-section (2) of the West Bengal Restoration of Alienated Lands Act, 1973 should be homestead and tank of an agriculturist It was thus argued that in the instant case the only two pieces of property involved being homestead and tank and the appellate tribunal having come to the conclusion that the transferor was not an agriculturist I should, while re-hearing the matter, rather dismiss the application than maintain my earlier order.

(3.) I have considered the said division bench judgment with as much care as lies within my capacity ; I do not think that the said judgment is an authority for the proposition that homestead or tank should be that of an agriculturist within the meaning of the said quoted sub-section. In the 4th paragraph of the judgment Justice Anil Kumar Sen indicated that according to the special officer in that case the property transferred was a property situated within the municipal area, and was primarily let out to tenants, as such the said officer concluded that it does not answer the description of the term land in the Act. The appellate authority was quoted by His Lordship as having said that the land "need not essentially be agricultural for being within the purview of the Act". In this context in the 5th paragraph His Lordship said as follows : "obviously the term homestead when included within the meaning of the term land means homestead of an agriculturist and not any and every structure on non-agricultural land. This seems to be clear on the context and the appellate authority was in error in thinking that the land or the structure thereon need not necessarily be agricultural". Clearly in that case the agricultural nature of land was in issue and not the occupation of the transferror, that is whether he was an agriculturist or not. Furthermore the land in question being within the municipal area it was nobody's case that the tenanted structure was on generally agricultural land. Nor is it clear how the issue of a homestead arose regarding tenanted property.