BIJOY KUMAR MONDAL & ANR Vs. HARITARAN MISTRY

JUDGEMENT

(1.) The Judgment of the Court was as follows :

(2.) The only question in this Revisional Application is whether in view of the West Bengal Land Reforms Amendment Act of 1981 which came into force with retrospective effect from 7th Aug., 1969 thereby enlarging the definition of 'land' under section 2(7) of the said Act by including homestead etc. within the aforesaid definition the prayer for pre-emption as allowed under the provisions of section 24 of the West Bengal Non-agricultural Tenancy Act since repealed under section 63 of the said Amendment Act, by the impugned order is sustainable in law or not. It has been submitted by Sri Sahu the learned Advocate appearing for the petitioner that in view of the two Bench decisions of our High Court reported in 93 Cal WN page 289 (Niranjan Khanra & Anr. Vs. Shyamal Kumar Mukherjee & Ors.) and in (1991)1 Cal HN 173 (Smt. Bakul Nag Vs. Sri Saibal Guin) both the impugned order and order passed by the Trial Court under section 24 of the West Bengal Non-agricultural Tenancy Act are without jurisdiction and as such the matter involved in Misc. Case No. 59 of 1977 should be remitted back to the Trial Court for a decision to be made under section 8/9 of the West Bengal Land Reforms Act.

(3.) It appears from the lower court record that the present appellant/ opposite party filed the aforesaid Misc. case in the Trial Court for preemption of homestead land against the present petitioner/respondents under section 8/9 of the West Bengal Land Reforms Act. Subsequently the appellant/opposite party amended his petition for pre-emption praying to treat the same as under section 24 of the West Bengal Non-agricultural Tenancy Act in the alternative. The Trial Court amended the petition accordingly. By its order dated 1.2.82 the Trial Court found that the appellant/opposite party (the petitioner in the pre-emption case) was entitled to pre-empt the disputed land under section 24 of the West Bengal Non-agricultural Tenancy Act but ultimately dismissed the case on the ground that the Misc. case was not maintainable as the entire consideration money together with compensation was not deposited in the Court within the prescribed time limit. The Appeal Court by its impugned order set aside the same on the finding that the deposit made by the appellant/ opposite party in two instalments of the consideration money along with statutory compensation was quite legal valid and within time. Both the Appeal Court and the Trial Court came to a concurrent finding that the land sought to be pre-empted being a homestead land was non-agricultural land in view of the definition of 'land' as provided under section 2(7) of the West Bengal Land Reforms Act before 1981 amendment. My attention has been drawn by Sri Sahu to the First Bench decision of the High Court in Niranjan Khanra s case (supra) where it has been unequivocally held that under the provisions so substituted by the Amendment Act, 1981, non-agricultural lands would become 'lands' and the holders thereof would become'raiyats'under and within the meaning of the West Bengal Land Reforms Act, 1955 and in view of the overriding effect given to the provisions of the Act of 1955, as it stood before and now further fortified by section 3 of the Amendment Act, 1981 as substituted, right of pre-emption in respect of all lands, agricultural and non-agricultural would be governed and regulated by sections 8, 9 and 10 of the Act of 1955. It has been further held there that they are being other inconsistencies between the two Acts, once non-agricultural lands have come within the purview of the West Bengal Land Reforms (Amendment Act) 1981 in view of its provisions, the provisions relating to pre-emption under sections 24, 25 and 26 of the West Bengal Non-agricultural Tenancy Act, 1949 would stand overthrown and outweighed by the provisions of sections 8,9 and 10 of the West Bengal Land Reforms Act, 1955. The said principles laid down in Niranjan Khanra's case (supra) have been followed in the latter Bench decisions of this High Court in Bakul Nag's case (supra) reported in (1991)1 Cal HN page 173. In both the reported cases and in our present case the position is same, i.e., the Amendment Act of 1981 came into operation with retrospective effect from 7.8.69 after the impugned order was passed, but during the pendency of the proceeding in appeal or in revision before the High Court. Mr. Kabir and Mr. Sahu have both conceded that section 63(2) of the West Bengal Land Reforms Act which was added to the Parent Act, by the 1981 amendment cannot be invoked in view of the fact that there has been no Notification of the State Government for giving effect to the provisions contained therein as provided under section 1(3) of the West Bengal Land Reforms Act of 1955. The ineffectiveness of section 63 without being backed by inappropriate Notification under section 1(3) of the West Bengal Land [ Reforms Act has been, clearly pointed out by this High Court in Niratijan Mama's case (supra) clauses (7) and (10) of section 2 of the Principle Act of 1955 have been substituted by new clauses (7) and (10) and also section 3 of the Principle Act has been substituted by new section 3 of the Amendment Act of 1981. There is no dispute about the enforcement of these clauses under the Amendment Act of 1981 as the said original clauses and section 3 were already backed by State Government's notification published in the official Gazette. Mr. Kabir appearing for the opposite party has, however, submitted that section 63(1) which has been added to the parent Act by 1981 amendment cannot also be given effect to for want of appropriate Notification under section 1(3) of the parent Act. But this contention in my opinion does not help Mr. Kabir to say that even after the 1981 amendment of the West Bengal Land Reforms Act the pre-emption case in respect of the disputed land was maintainable under section 24 of the Non-agricultural Tenancy Act. Under the amended clause 7 of section 2 of the West Bengal Land Reforms Act 'land' means land of every description and includes homestead for the purpose of the said Act. Under clause (10) of section 7 after the Amendment Act of 1981 'raiyat' means a person or an institution holding land for any purpose whatsoever. Both these definitions have come into force with retrospective effect from 7.8.69 by the Amending Act of 1981 which came into force during the pendency of the present proceeding. So, in view of the present definition of 'land' and 'raiyat' the appellant/opposite party must be held to be not entitled to any relief under section 24 of the West Bengal ,Non-agricultural Tenancy Act which was granted to him by the Appeal Court by its impugned order. In that view of the matter the Appeal Court's order i.e. the impugned order and order of the Trial Court passed under section 24 of the Non-agricultural Tenancy Act must be held to be without jurisdiction. Specially, in view of the retrospective effect of the Amendment Act of 1981 from 6.8 69. In both the above two Bench decisions our High Court was pleased not to reject the application for pre-emption under sec. 24 out right but directed the same to be treated as one under secs. 8 and 9 of the West Bengal Land Reforms Act and remanded the Misc. case to the appropriate Court for disposal according to law. I think that in the interest of Justice the same procedure should be followed here. The Revisional Application succeeds but without costs. The rule is to be made absolute. The impugned order passed by the Appeal Court is set aside and also set aside the order of the Trial Court that the appellant opposite party was entitled to pre-emption in respect of the disputed land under section 24 of the West Bengal Non-agricultural Tenancy Act. The Misc. Case No. 59 of 1977 is remanded to the Trial Court for disposal according to law treating the same solely under sections 8 and 9 of the West Bengal Land Reforms Act. The learned Munsif is directed to disposed of the case within six weeks from the date of communication of this order after giving both the parties an opportunity of adducing further evidence if any. I make it clear that the evidence already on record should be considered by the learned Trial Court. The Revisional application stands allowed and the Rule is made absolute in the light of the above observations. The lower court record be sent down by the office forthwith by a special messenger at the cost of the petitioner to be deposited within a week from this day. All interim order stands vacated. Revision Application allowed. Case remanded.