JUDGMENT 1. THIS writ application arises out of a proceeding under section 14t read with section 14m of the west Bengal Land Reforms Act, 1955 for determining the extent of the petitioner's land which is to vest in the State. The Revenue Officer, Settlement 'b' camp, Midnapore by his order dated 4th September, 1979 determined that the petitioner was entitled to retain 12-36 acres of land and that his remaining lands would vest in the State. In calculating the extent of land which the petitioner was entitled to retain, the Revenue Officer had considered that all his lands including his homestead were situated within irrigated area. Both the petitioner's homestead and the tank in Plot No. 486, Khatian No. 252, mouza Kamararah, are situated within limits of the Midnapore Municipality. Other tanks owned by the petitioner have been, however, treated as non-agricultural lands. 2. BEING aggrieved thereby the petitioner preferred Revenue Appeal No. 67-L. R. of 1979. The Additional District magistrate Midnapore by his order dated 22nd June 1981 rejected the said appeal holding inter-alia that the tank in Plot No. 486 Khatian No. 252 mouza Kamararah forms part of the petitioner's homestead and, therefore, the said tank has been correctly, treated as agricultural land. The learned Additional District magistrate, Midnapore held that according to section 2 (7) read with explanation thereunder of the West Bengal Land Reforms Act a tank is not agricultural land, unless it forms part of homestead land. Mr. Puspendu Bikash Sahoo, learned advocate for the petitioner, has inter alia submitted that both the Revenue Officer and the Additional District Magistrate, Midnapore had committed errors of jurisdiction by holding that the aforesaid tank in Plot No. 486., Khatian no. 252 was an agricultural land only on the ground that the same was adjacent to the petitioner's homestead. According to Mr. Sahoo after the definition of the expression "land" in, section 2 (7) of the West Bengal Land Reforms Act was,, amended by the West Bengal Act, XII of 1972, agricultural lands no longer include tank. Mr. Sahoo has submitted that, the petitioner has only 7 annas 3 gondas. 1 kara share in the said tank in Plot No. 486 which was recorded in the R. S. Khatian as non-agricultural land- "dakhalkar". There was no evidence on record regarding- the status of the remaining co-sharers of the said tank. Mr. Mr. Sahoo has submitted that, the petitioner has only 7 annas 3 gondas. 1 kara share in the said tank in Plot No. 486 which was recorded in the R. S. Khatian as non-agricultural land- "dakhalkar". There was no evidence on record regarding- the status of the remaining co-sharers of the said tank. Mr. Sahoo further submitted that the petitioner's homestead and the aforesaid tank both of which were situated within the Midnapore Municipality could not be treated as within irrigated area for the purpose of determining the "ceiling area" applicable to the petitioner. 3. MR. Gupta, learned Additional Advocate-General, has contended that the combined effect of definition of "land" given in section 2 (7) read with the explanation thereunder of the West Bengal Land Reforms Act was that homestead of the raiyat including tank forming part of such homestead would be agricultural land. Mr. Gupta has submitted' that even after the West Bengal Act XII of 1972 had amended the definition of the expression "land" given in section 2 (7) of the West Bengal Land Reforms act a tank forming part of a homestead still continues to be an agricultural land. Mr. Gupta has further contended that the petitioner's homestead including the aforesaid tank are situated within the irrigated area specified in a State Government notification published in the official gazette and, therefore, the Revenue Authorities rightly treated that the petitioner's lands were situated within an irrigated area. 4. IN this writ application the main question is whether the tank in Plot No. 486, Khatian No. 252 mouza Kamararah is an agricultural land. In order to decide the said question, it would be also necessary to ascertain whether the said tank is annexed to or' Is' appertaining" to die dwelling house of a raiyat.' Since the decision in Baburam Roy's case in 8 C. W. N. 454, it lias been settled law that in order to decide whether the transfer of Property Act, 1882 or the bengal Tenancy Act, 1885, would apply to a homestead, the' court ought to look to the nature of the original tenancy and not the nature of the tenancy With 'reference to a particular piece of land within the holding. When a raiyat held homestead as a part of his raiyarti holding, the incidence of his tenancy of the homestead would be governed by the Bengal tenancy Act. When a raiyat held homestead as a part of his raiyarti holding, the incidence of his tenancy of the homestead would be governed by the Bengal tenancy Act. Before section 182 of the bengal Tenancy Act was amended by the Bengal Tenancy (Amendment) Act, 1928, when a raiyat had his- homestead otherwise then as a part of - his holding as a raiyat, the incidence of his tenancy in the homestead were regulated -by local custom or usage and subject to local custom and usage by the provisions of the Bengal Tenancy Act applicable to land held by a raiyat. The amended-section 182 of the Bengal Tenancy Act, inter-alia, provided that homestead right of a raiyat or an under raiyat would be governed by the provisions of the Bengal tenancy Act (see A. C. Ghosh on Bengal tenancy Act (1943) page 72). 5. UNDER the West Bengal' Estates Acquisition Act, land comprised in homestead were dealt with separately from agricultural lands. An intermediary (including a raiyat and an under -raiyat) under section 6 (1) (a) of the said Act was entitled to retain lands comprised in homestead, and according to clause (c) of "section 6 (1) of the said Act the total area of non-agricultural lands and his homestead lands retained by ah intermediary were not to exceed 25 acres Clause (d) ox section 6 (1) of the said Act prescribe ceiling for agricultural. Rule 4 (a) of The west Bengal estates Acquisition Rules, 1994 prescribes in the retained land, held by an intermediary the agricultural land the such hold it on the terms and conditions mentioned in sections of the bengal Tenancy Act, 1885 sections in the said clause of the said Rule 4 (3)it may be noted that the said Rule did not make section 182 of the Bengal Tenancy Act expressly applicable to lands comprised in a welling house retained under section 6 (1) (a)of the Act. According to Rule 4 (2) of the West Bengal Estates Acquisition Rules, 1954 an intermediary would hold his non- agricultural lands as a tenant under the West Bengal Non- agricultural Tenancy Act, 1949. 6. THE West Bengal Land Reforms Act, 1955 purports to embody the law relating to land tenure consequent on the vesting of all estates and certain other rights therein in the statute (vide the preamble to the said Act). 6. THE West Bengal Land Reforms Act, 1955 purports to embody the law relating to land tenure consequent on the vesting of all estates and certain other rights therein in the statute (vide the preamble to the said Act). The West bengal Land Reforms Act, 1955 applies only to agricultural land. Undisputedly, non-agricultural lands are outside the scope of the West Bengal Land Reforms act. In order to ascertain the extent of the application of the West Bengal Land reforms Act, we ought to consider the background of its enactment and, also refer to the definitions of the expressions "holding", "land" and "raiyat" given in the different clauses of section 2 of the west Bengal Land Reforms Act. It is significant that the West Bengal Land Reforms Act applies only to homestead of raiyats and homestead of persons other than raiyats continue to be non-agricultural lands "holding" under section 2 (6) of the West Bengal land Reforms Act means land or lands held by a raiyat. "raiyat" under section 2 (10) of the said Act means a person holding land for purposes of agriculture, "land" under section 2 (7) of the act means, agricultural land including homestead. Section 2 (ii) of the West bengal Land Reforms (Amendment) Act, 1972 has added to section 2 (7) of the Principal Act the words "but does not include tank". But there has been no change in the explanation to section 2 (7) of the Act which lays down "homestead shall have the same meaning as in the west Bengal Estates Acquisition Act, 1953." 7. THE legislature has retained the very wide definition of the expression "homestead" given in the West Bengal estates Acquisition Act, 1953 by reason of the aforesaid explanation to section 2 (7) of the said Act. The said definition having been incorporated in the West bengal Land Reforms Act, homestead land of a raiyat means a dwelling house together with any court-yard, compound garden, out-house, place of worship,. . ., tanks, wells. . . . . . annexed to or appertaining to such dwelling house. 8. MY attention has been drawn to the decision in Kamaleswar Singh's case 1979 (2) C. L. J. 526 and in Eychchin Ali naskar's case 83 C. W. N. 87. . ., tanks, wells. . . . . . annexed to or appertaining to such dwelling house. 8. MY attention has been drawn to the decision in Kamaleswar Singh's case 1979 (2) C. L. J. 526 and in Eychchin Ali naskar's case 83 C. W. N. 87. Both G. N. Ray, J. in Kamaleswar Singh's case (supra) and S K. Datta, J. in Eychchin Ali naskar's case (supra), in substance have held that Unless the homestead is comprised in a raiyati holding tenancy in respect of the homestead would be governed by the Non-agricultural Tenancy act. Apparently, the learned Judges did not apply the principles embodied in section l82 of the. Bengal Tenancy Act. In other woras, according to the aforesaid two xeporied evasions, homestead land hela by a raiyat, otherwise than as a part 01 his raiyati holding was held to be non-agricultural land. "homestead' has been expressly included within the expression "land" as define in clause (7) of section 2 of the west Bengal Lana Reforms Act, 1955. The said definition of land given in section 2 (7) of the said Act has not further laid down that such "homestead" must be within an agricultural holding of a raiyat. Therefore, prima facie it is mot permissible to limit the application of the West 3sngai Land Reforms Act wily td homestead which are included in agricultural holdings. The use of the word "including" in definition of "land" given in section 2 (7) of the west Bengal Land Reforms Act purports to enlarge the meaning of "land" by bringing within its fold homestead of a raiyat. The intendment of the law is that when a person holds land for agricultural purposes, his' status also in relation to his homestead would be that of a raiyat. But when, a person holds both agricultural and non-agricultural lands, it may not be permissible to treat as agricultural land his homestead which is comprised in a separate holding and held otherwise than as a part of his raiyati holding. Such a homestead may be treated as non- agricultural land. In this connection reference may be made to sections 23a, 49 (1) (b) and 51 (4) (i) of the West Bengal Land Reforms Act. These provisions, inter-alia indicate that the West Bengal land Reforms Act contemplates cases where a person may hold both agricultural and non-agricultural lands. Such a homestead may be treated as non- agricultural land. In this connection reference may be made to sections 23a, 49 (1) (b) and 51 (4) (i) of the West Bengal Land Reforms Act. These provisions, inter-alia indicate that the West Bengal land Reforms Act contemplates cases where a person may hold both agricultural and non-agricultural lands. Because a person who holds both agricultural and non- agricultural lands, he is not invariably a raiyat within the meaning of section 2 (10) of the West Bengal Land Reforms Act, 1955. In order to decide whether such a person ought to be considered as a raiyat also in respect of his homestead, the authority ought to consider all the facts and circumstances of each particular case, e.g., the relative areas, of his argicultural and non-agricultural lands, his occupation, etc. 9. IN my view, the appellate authority in the instant case has rightly held that when a tank is part of a homestead of a raiyat, the said homestead including the tank are included in the expression "land" as defined in section 2 (7) of the west Bengal Land Reforms Act, 1955. The unreported decision of Anil Kumar sen and B. C. Chakraborty, JJ., in the case of Akshoy Chandra Pal v. Sunil chandra Pal C. R. No. 1073 of 1978, disposed of on 7th May,. 1981, support the above view. The learned Judges in the above case dealt with a pre-emption case in which the land was recorded in six different khatians. The learned Additional District Judge found that most of the plots were recorded as bastu and pond and, therefore, they could not be treated as agricultural lands and made subject-matter of any application, under section 8 of the West Bengal Land Reforms Act. In the Revisional Records the status of the vendors were however, recorded as raiyats. Anil Kumar Sen and B. C. Chakraborty, JJ., held that in order to claim pre-emption under section 8 of the West Bengal Land Reforms Act, the applicant must establish that what had been transferred was a portion or a share of an agricultural holding of which he was a co-sharer. Their Lordships, referred to the main part of the definition of "land" in section 2 (7) of the West bengal Land Reforms Act which excluded a tank. Their Lordships, referred to the main part of the definition of "land" in section 2 (7) of the West bengal Land Reforms Act which excluded a tank. According to the learned judges, the amendment of section 2 (7)of the said Act obviously had introduced an anomaly because the term "land" though it now includes homestead, does not include a tank, the term "homestead" under the explanation to section 2 (7) has been given the same meaning as in the West Bengal Estates Acquisition act, according to which the homestead includes a tank which is a part of the homestead. The learned advocate for the pre-emptee had argued in the said case before the Division Bench that since some of the plots were recorded as ponds, the same must necessarily go out of the term "land" and consequently out of the term "holding" as defined in the Land reforms Act, so that there could be no pre-emption under section 8 of the said act in respect of such ponds or tanks. But the learned Judges in the case of akshoy Chandra Pal v. Sunil Chandra pal (supra) observed "in our view, however, the definition, clause must be given a harmonious. construction. When tank was sought to be excluded from the definition of "land", the legislature necessarily intended to exclude such tanks as do not constitute a part of the homestead or a part of an agricultural holding used necessarily for purpose of agriculture. We cannot but take note of the fact that though amendment has been effected in respect of clause (7), there is no amendment to the explanation which necessarily brings in the tank constituting a part of the raiyat's homestead as the homestead itself. Such being the position we cannot straightaway reject the application of pre-emption only because some of the plots have been recorded as tanks without any further evidence to find what is the true nature and the character of such tanks and whether those are really parts of the raiyat's homestead or agricultural holding as such". According, to the learned Judges, the entry in the revisional Records as agricultural, cannot be conclusive because on the enforcement of Chapter-VI of the West Bengal Estates Acquisition Act, the raiyats became intermediaries and they became entitled to retain lands of different character, some of which were agricultural in use and others not so. According, to the learned Judges, the entry in the revisional Records as agricultural, cannot be conclusive because on the enforcement of Chapter-VI of the West Bengal Estates Acquisition Act, the raiyats became intermediaries and they became entitled to retain lands of different character, some of which were agricultural in use and others not so. Once so retained, the statutory rules clearly provided that such lands as are agricultural in use would be treated as agricultural and while others are to be treated as non-agricultural land of the intermediary under sub-rule (2) of Rule 4b (3) of the west Bengal Estates Acquisition Rules. The said Division Bench approved the observations in Mishri Show vs. Eelur nikunjamoyee Gadar Institute and others 1978 (1) C. L. J. 532, regarding the change brought about by the West Bengal estates Acquisition Act. Therefore their lordships remanded the case for finding out the nature of the user of the lands and the manner in which they were retained by the raiyats under section 6 of the West Bengal Estates Acquisition Act. I respectfully agree with the aforesaid statement of law. 10. IN the case of Ananta Gopal Sen v. Ashim Kumar Ganguli C. R. No. 15 of 1978 decided by me on 4th June, 1982, the khatian in question comprised one pukur, pukurpar and bari. The question was whether the pre-emption proceeding under section 24 of the West Bengal non-agricultural Tenancy Act was maintainable. I had referred to the Division Bench decision in Akshoy Kumar pal v. Sural Kumar Pal (supra), which inter-alia laid down that entries in R. S. Khatian raise only rebuttable presumption and, therefore, an investigation of facts would be necessary to determine the use to which the land had been put to and also about the manner in which intermediary had retained. In the said case on facts I hold that the courts below had concurrently found on evidence that the land in question appertained to a non-agricultural tenancy and, therefore, application under section 24 of the west Bengal Non-agricultural Tenancy act was held to be maintainable. I may also briefly consider the legislative history relating to amendments made by the West Bengal Land Reforms (Amendment) Act 1972 (West Bengal Act XII of 1972) in Section 2 (7) of the West Bengal Land Reforms Act. I may also briefly consider the legislative history relating to amendments made by the West Bengal Land Reforms (Amendment) Act 1972 (West Bengal Act XII of 1972) in Section 2 (7) of the West Bengal Land Reforms Act. Originally, the definition of -the expression "land" given in the said section 2 (7) did not exclude tank but included homestead. The explanation to section 2 (7) had in effect incorporated the meaning of "homestead" given in the West bengal Estates Acquisition Act, 1953. 11. P. N. Mookerjee and Amiya Kumar Mookerjee, JJ. in Fakir Chandra chakravarty vs. Pandit Sri Lakshmi kant Jha and others 75 C. W. N. 952, dismissed a Letters Patent Appeal by a tenant who was the defendant in a rent suit in respect of a tank, holding, inter-alia, that the disputed tank was a non-agricultural land within the meaning of section 2 (j) of the West Bengal Estates acquisition Act and the plaintiff no. 2 lessee - accordingly, was a non-agricultural tenant under, section 2 (k) of the said Act. R.N. Dutta, J. in Benoy Kumar Saha and others v. The Revenue officer, Malda, Gazole Camp and another 76 C. W. N. 367, in a Revisional application arising out of an order passed under section 47 of the West Bengal Estates Acquisition Act held that the two tanks in question were being used for non-agricultural purposes and, therefore, the Revenue Officer had no jurisdiction to treat the said tanks as agricultural lands and to vest them. 12. THE West Bengal Land Reforms (Amendment) Act (President's Act 16 of 1970) and the West Bengal Land Reforms (Amendment) Act, 1971 (President's Act 3 of 1971) which were enacted during the President's Rule in West bengal from 19th March. 1970 to 1st April, 1971 did not amend the definition of the expression "land" given in section 2 (7) of the Parent, Act. The West bengal Land Reforms Ordinance, 1972 had kept alive the provisions made by the two President's Acts. While seeking "to enact the provisions made by the said Ordinance subject to certain modifications to plug loopholes and to expedite disposal of cases", the West, Bengal Land Reforms (Amendment) Bill. 1972 proposed amendment, inter-alia, of section 2 (7) by adding the words "but does not include tank". While seeking "to enact the provisions made by the said Ordinance subject to certain modifications to plug loopholes and to expedite disposal of cases", the West, Bengal Land Reforms (Amendment) Bill. 1972 proposed amendment, inter-alia, of section 2 (7) by adding the words "but does not include tank". Presumably, the legislature had taken note of the law laid down by the aforesaid two decisions of this Court renorted in 75 C. W. N. 952 and 76 C. W. N. 367. The said Bill was enacted as the West Bengal Act XII,-of.-1972 and as already stated, according to the, said amended definition of the expression "land", it includes homestead but does not include tank. The legislature also retained the existing Explanation to section 2 (7) of the West Bengal Land reforms Act which had incorporated and adopted the very wide meaning of "homestead" given in section 2 (g) of the West Bengal Estates Acquisition Act, 1953. We ought not to interpret section 2 (7) of the West Bengal Land Reforms act in a manner which might make a part of the Explanation to the said clause (7) meaningless and unworkable. If the submission of the petitioner is accepted, then inspite of the clear wordings of the Explanation to section 2 (7)of the West Bengal Land Reforms Act, a tank annexed or appertained to the dwelling house of a raiyat would be excluded from the purview of "land" under the section 2 (7) of the said Act. Harmonious meaning to the entire definition of the expression "land" in section 2 (7) of the Act can be given only by holding that when a tank is for beneficial enjoyment of the homestead of a raiyat, the same is an agricultural land. But tank which is not part of a homestead of a raiyat is no longer agricultural land by reason of the West bengal Land Reforms, (Amendment)Act, 1972 by adding the words "does not include a tank" in section 2 (7) of the act. Similarly, when a tank annexed to or appeartained to the homestead of a person who is not a raiyat only the said homestead including such tank which appertains to it is to be treated as a non-agricultural holding. 13. I have already observed that a homestead of a raiyat would be governed by the West Bengal Land Reforms act. Similarly, when a tank annexed to or appeartained to the homestead of a person who is not a raiyat only the said homestead including such tank which appertains to it is to be treated as a non-agricultural holding. 13. I have already observed that a homestead of a raiyat would be governed by the West Bengal Land Reforms act. Therefore, even if it is held that inspite of amendment of section 2 (7) of the Act made by the West Bengal Act xii of 1972, the tank appertaining to or annexed to a dwelling house of a raiyat is still agricultural in character, it ought to be further ascertained whether or not the said dwelling house is owned by a raiyat. 14. IN the instant case the tank in Plot no. 486, Khatian No. 252, Mouza Kamararah, prima facie, constitutes a separate holding and the plaintiff is a co-share of the said holding. Even if his dwelling house appertains to a separate holding, mere physical proximity between a tank and the said dwelling house would not be sufficient for deciding the question whether the tank is a part of the petitioner's homestead. No doubt, "homestead", according to section 2 (g) of the West Bengal Estates Acquisition act, has a very wide connotation and would include which are necessary for beneficial enjoyment of the 'dwelling house (see Kshirode Chandra v. Sarada prosad 12 C.L.J. 525). In the instant case the Revenue Officer and the Additional District Magistrate, Midnapore have held that the tank in Plot No. 486 to be a part of the petitioner's dwelling house without recording any finding whether the tank in question is necessary for the beneficial enjoyment of the dwelling house and, therefore, might be considered as annexed to or appertaining to the said dwelling house. Secondly, the said authorities under the West Bengal Land Reforms Act have not yet considered all the aspects of the matter before recording that the homestead in question was owned by a raiyat. There is no evidence what was the status of the other co-sharers of the said holding and whether the same constituted dwelling house also of the said other co-sharers. As I have decided to remit the matter for fresh disposal of the proceeding, i do not intend to discuss the submission of Mr. There is no evidence what was the status of the other co-sharers of the said holding and whether the same constituted dwelling house also of the said other co-sharers. As I have decided to remit the matter for fresh disposal of the proceeding, i do not intend to discuss the submission of Mr. Sahu that the petitioner respondent's homestead and the tank in Plot No. 486 be treated as irrigated lands both of which are situated within the midnapore Municipality. It is open to the petitioners to separately challenge the different State Government Notifications made from time to time declaring certain parts of Midnapore District to be within 'irrigated area'. I also express no opinion whether the aforesaid homestead and the tank could be considered to be within any irrigated area although they are totally incapable of being irrigated from any canal, irrigation project or state river lift irrigation. The said question if raised in any other proceeding may be decided according to law. 15. FOR the foregoing reasons, I allow in part the writ application and I quash the orders complained of. I further direct the respondents to again determine in accordance with law the proceeding under section 14t read with section 14s of the West Bengal Land Reforms Act. I remit the case to the trial court under section 14s of the Act for fresh disposal according to law. The authorities would be at liberty, to decide whether the petitioner is a raiyat in relation to his homestead land whether the tank in plot No. 486, Khatian No. 252, mouza kamararah is annexed to and appertaining to the said homestead. I record that; at the time of the hearing of this Rule, the petitioner did not urge any point regarding the findings made about his remaining plots of land. Therefore, I do not interfere with the decisions made with regard to plots other than the petitioner's aforesaid homestead and Plot no. 488 Khatian no. 252, Mouza Kamararah. There will be no order as to costs. Application allowed in part.