SUDHANGSHU KUMAR SAHA Vs. PRAVALATA NANDY

JUDGEMENT

(1.) THE point for decision in this rule obtained by an opposite party, one successfully pre-empted, is whether or no section 24 of the West Bengal Non-Agricultural Tenancy Act 20 of 1949 (hereinafter referred to as the Act) avails a co-sharer non-agricultural under-tenant part of whose undivided! tenancy has been transferred by another co-sharer non-agricultural under-' tenant. The facts are not in dispute. Pra-valata Nandi, Jibandhan Chatterjee and Benoy Krishna Chatterjee are owners in equal shares of. 096 acres of non-agricultural land in the town of Chan-dernagore spread over plots 363 and 364 under Khatian No. 212 on a rental of Rs. 5 /and also over a bata dag, 364/851 under Khatian No. 374, a khatian subordinate to khatian No. 212, on a rental of Rs. 36/ -. Their status is that of a dakhalkar under a dakhalkar, in other words, that of an under-tenant. Plot No. 363 is recorded as a dokan (a shop), plot No. 364 as a danga and the bata dag as a bastu. Jibandhan sells his one-third share to a stranger Tulsidas Kar for Rs. 1,330 / The date of the sale is November 11, 1960. Pravalata thereupon moves the court for pre-emption under section 24 of the Act, wrongly described in the trial court's order-sheet as one under section 26f of the bengal Tenancy Act. The date of an application as that is November 21, 1960. In her application, Pravalata im-pleads Tulsidas and Jibandhan, the buyer and the seller respectively, as the first two opposite party and Benoy Krishna as a pro por forma one. Tulsidas meanwhile sells for Rs. 2,400/-, what he had purchased from Jibandhan, to Sudhanshu Kumar Saha. The date of This sale is November 26, 1960. On an,-other application of Pravalata, who is not to lag behind, Sudhanshu Kuma.-is added as an opposite party too, though the manner in which he is added without any amendment in the body of the main petition leaves much to be desired.

(2.) WHEN the petition proceeds to trial, Sudhanshu Kumar alone resists it. The two points he takes are that the land is not non-agricultural and that the pre-emptor Pravalata is bound to pay, in addition to the usual compensation, Rs. 2,400 /-, the consideration money of his purchase. The learned munsif negatives both the points and allows pre-emption. Sudhansu Kumar having carried the matter in appeal, the only point urged before the learned subordinate Judge is that the transfer being by a non-agricultural under tenant, section 24 of the Act cannot apply. The learned judge rejects the contention and dismisses the appeal. Sudhansu Kumar has, therefore, come up to this Court and obtained this rule, as noticed. Mr. Ghose, the learned Advocate for the petitioner, reiterates the same point; that a transfer by a non-agricultural tenant does not attract section 24 of the Act. On no other point does he addresses me. Mr. Bhattacharya, the learned Advocate for Pravalata, the' pre-emptor, now the opposite party no. 1 before me, contends just the other way about: that the very scheme of the Act brings a non-agricultural tenant as well within the ambit of section 24 there of.

(3.) THE relevant provisions of the Act need looking into with side-glances here and there. Chapter I captioned 'preliminary' consists of two sections- the second of which contains a number of definitions. Of these definitions, two call attention: non-agricultural land which, in accordance with subsection (4) of section 2, means (omitting what is not required) land used for purposes not connected with agriculture or horticulture and includes and land held so on lease ; and non-agricultural tenant-an expression which, in accordance with sub-section (5) of section 2, means (omitting the words not required) a person who holds non-agricultural land under another person and is, or but for a special contract would be, liable to pay rent to such person for land. Chapter II bears the heading : Classes of Non-Agricultural Tenants. It has three sections- section 3 to 5. Section 3 is divided into three sub-sections. Sub-section (1) provides that, for the purposes of the Act, there are two classes of non-agricultural tenants: (a) tenants and (b) under-tenants. Non-agricultural tenants, therefore, constitute the genus of which one species is tenants and another species under-tenants. Thus it can be said in safety that under tenants are non-agricultural tenants too. Say, if you will, they form a class of non-agricultural tenants, the other class being tenants. But they are non-agricultural tenants all the same. Subsection (2) defines a tenant whose badge is that he has acquired from a proprietor or a tenure-holder a right to hold non-agricultural land for any of the purposes of the Act. Sub-section (3) defines an under-tenant, the indicia of such a one being his acquisition of a right to hold just as above, but under a tenant mediately or immediately, not under a proprietor or a tenure-holder. The purposes for which a non-agricultural tenant (obviously used in the generic sense so as to include an under tenant) may hold non-agricultural land are three: (a) homestead or residential purposes, (b) manufacturing or business purposes, and (c) other purposes. Section 5 enacts a "deeming" provision prescribing when a non -agricultural tenant (in the generic sense again) shall be denied to hold a non-agricultural land. Thus ends Chapter II Chapter III which is now reached is a chapter on Tenants, as the heading thereof goes to show. And tenants, be it remembered, form but a class of non-agricultural tenants (section 3 ). This chapter runs into ten sections-sections 6 to 15. How a tenant may use non-agricultural land is provided for in section 6. Then a dichotomy is made of tenancies mainly on the basis of their duration. The incidents of tenancies held for not less than twelve years, including renewals and transfers thereof and succession thereto, are provided for in sections 7 and 8. And the incidents of tenancies held for more than a year but less than twelve years are provided for in section 9. The ejectment of a tenant is not the easy after it; was before. But what if he uses his non-agricultural land for an immoral, illegal or unsocial purpose, or in a manner which constitutes a menace to public peace and the like ? A co-sharer tenant or the landlord is then given the right, by section 10, to purchase the land misused so. Sections 11-14 deal with the enhancement of rent in its various aspects. And a lone section, section 15, deals with the reduction of rent. That is end of Chapter III, the next one, Chapter IV, dealing with under-tenants, as its heading proclaims ; no less the first section it opens with : section 16. Of the remaining six sections in this chapter-sections 17-22-section 17 prescribes the term on which an under tenant may be admitted to the occupation of a non-agricultural land, section 18 the rate of rent which, barring certain exceptions, shall not exceed one and a half if the rate his landlord (i. e. , the tenant) pays for the particular land, section 19 the mode and limit of the enhancement of rent, section 20 the grounds on which the under-tenant makes himself liable to be ejected, and section 21 the incidents of his tenancy-such as heritability transferability and the like. Section 22 still remains. It is deserving of special notice. By virtue thereof-1. a co-sharer under-tenant or his landlord (i. e. , the tenant) has the right to purchase the non-agricultural land if an under tenant misuses by bringing it on the edge of morality or law, just as co-sharer tenant or the landlord has under section 10 ; 2. (i) where a tenancy of an under-tenant is held under a lease in writing for a term of not less than 12 years or under conditions sub-sections (1) to (5) of section 7 specify-conditions which do not bulk large here-he (the under tenant) shall have all the rights and liabilities of a tenant as set forth in section 7 or 8; (ii) more, he then elevates himself to be a tenant governed by sections 6, and 11 to 15 (the tenant's monopoly) instead of by sections 18 to 20 (his monopoly ). Now comes Chapter V captioned : Provisions as to transfer of non-agricultural land-a chapter in which section 24 I have been called upon to construe occurs. But to section 23 first-a section this chapter begins with. It provides for the manner for transfer of non-agricultural land, namely, by a registered instrument, notices to landlords etc. Section 24 confers the power to purchase the non-agricultural land (a) on the immediate landlord if the entire non-agricultural land in a non-agricultural tenancy is transferred, and (b) on the immediate landlord or one or more co-sharer tenants if part or share of such land is transferred. It lays down too the manner of enforcement of the rights, the priority between the landlord and a co-sharer tenant, the consequence of the order granting pre-emption, certain exemptions etc. Section 25 overrides the Evidence Act, I of 1872, and prescribes that the recitals in an instrument of transfer to which the landlord is not a party shall not be evidence against him on the permanence of the tenancy, the amount or fixity of rent, the area, the transferability or any incident thereof. Chapter V concludes with section 26-an interpretation clause-which defines certain terms: the definitions contained in subsection (1) holding good, for this chapter only and those contained in subsection (2) holding good for section 23 only. This then is a conspectus of the relevant provisions which perhaps leads to a better appreciation of the contentions raised by Mr. Ghosh and Mr. Bhattacharya. Section 24 of the Act is dependent upon section 23, as it must necessarily be. A transfer first; the right of purchasing in preference to the buyer next. Mr. Ghosh, therefore, starts with section 23 the opening words of which are-Every transfer of non-agricultural land held by a non-agricultural tenant and contends that a non-agricultural under-tenant is not to be seen there. To see, however, only a tenant in the expression "non-agricultural tenant" is to see a little less than what it contains.