HABTL MONDAL Vs. COLLECTOR BANKURA

JUDGEMENT

(1.) THIS Rule is directed against an order passed by the Appellate Authority under the West Bengal Restoration of alienated Land Act, 1973. The Appellate Authority affirmed the order passed by this Special Officer. The facts arising out of this case are that there was a Kobala for Rs. 2000/- which was executed and registered on 27th April, 1970. By the said document the petitioner purchased. 27 decimals of land for Rs. 2000/- From the recital of the document it appears that the opposite party no: 3 executed the said Kobala in order to pay of debts incurred for the marriage ceremony of his daughter. Since the date of aforesaid conveyance the petitioner was in the possession , of the land and enjoying the usufructs, thereof. It appears that the opposite party no. 3 filed an application before the opposite party no. 2, Special Officer, under the Act, hereinbefore stated, for reconveyance of the land therein. In the said application the opposite party no. 3 stated that on the date of conveyance he had only 7 bighas of land which was sold for poverty and there was no agreement for reconveyance either oral or in writing in the said deed of conveyance. The special Officer directed the opposite party no. 3 to pay Rs. 2400/- to the petitioner within 4 years in eight equal installments. Being aggrieved by the said order the petitioner preferred an appeal before the Appellate Authority which was also rejected on 26th July, 1976. This present application was therefore made by the petitioner.

(2.) MR. Giri on behalf of the petitioner contended that as the transfer was made for the purpose of paying off debts incurred due to the marriage of the daughter, the application under the West Bengal Restoration of Alienated Land Act is not maintainable. Further it is argued by Mr. . Giri that under section 4 of the West Bengal Restoration of Alienated Land Act the condition precedent for the exercise of power is that (a) the transferor was not holding more than 2 hectares of land in the aggregate at the time of sale and then if such transfer is made after the expiry of the year 1967 being in distress or in need of money for the; maintenance of himself and his family or for meeting the cost of his cultivation or (b) such transfer is made after the expiry of the year 1967 with an agreement written or oral for reconveyance of the land transferred to the transferor. Mr. Giri contended that both the elements (a) and (b) under section 4 (1) (a) and 4 (1) (b) of the Act must be present before the order under the West bengal Restoration of Alienated Land act is made. It will appear from Section 4 of the Act that the order can be made if the Special Officer is satisfied on fact which comes either in section 4 (1) (a) or 4 (l) (b) of the Act. It is not necessary, in my opinion, to have both the elements in section 4 (1) (a)and (b) to be present before the order for restoration is made. Mr. Giri referred to the judgment reported in 1977 (1) C. L. J, 23 (Kanailal Chattapadhya vs. Satyendra Nath Mazumdar)stating therein according to him that (a)and (b) must be read together. In my opinion, the learned Judge has not said that. This was never argued before the hon'ble Judge that clauses (a) and (b) of section 4 (1) must be read conjunctively. In my opinion, in either of the cases, under clause (a) or (b)if the Special Officer is satisfied that the transferor was not holding more than 2 hectares of land in aggregate and that the transfer was made after the expiry of the year 1967 and within 5 years from the date of such transfer or that within 2 years from the date of the commencement of the Act the Special. Officer will have jurisdiction for restoration of such land to him.

(3.) NEXT question urged by Mr. Giri is that the payment Of debts incurred due to the marriage of the daughter does not come within the mischief of section 4 (1) (a) at all or on the other hand it cannot be said that such transfer was made in distress or in need of money for maintenance of himself and his family or for meeting the cost of cultivation. It has been held by this, Court in the case reported in 1978 cal 269 sadhan v. Dulal, 82 C. W. N. 416. that the distress covers construction of houses for residence of the transferor and her children. It has been held in the case reported in 1976 (2) C. L. J. , 118 Chittaranjan v. West Bengal that the distress means an economic distress It appears that the words "maintenance of himself and the members of the family" of the transferor may bring in even the. economic distress, inasmuch as, it is the duty of the father to give in marriage of his daughter. In so far as that is concerned, in my opinion, this also comes within the mischief of the words "being in distress or in need of money for the maintenance of himself and his family".