Damayanti Maity v. Aswini Kumar Jana — 1990 DIGILAW 300 (CAL)

Judgment Shamsuddin Ahmed. J.: 1. In this application under Art. 227 of the Constitution an order passed by the learned Additional Dist Judge, Midnapur in Misc. Appeal no. I of 88 affirming the order passed by the learned Munsif Addl. Court Contai in Judicial Misc. Case no. 28 0f 87 is under challenge. The order concerned involves an application under s. g of the West Bengal Land Reforms Act. 2. The petitioner claimed to be a co-sharer n respect of plot no. 157 of Khatian no. 254 and plot no. 216 of khatian no. 152. According to her deceased husband Chaitannaya Maity was the owner of these two plots. On his death she along with her son Lakshmi Kanta Roy succedded her late husband. Lakshmi Kanta Roy sold his interest in the disputed property to the opposite party by a deed executed on 18.7.82 and registered on 19.7.82 without any notice to her as required under s. 5(4) of the Lands Reforms Act. She further alleged that the transferee opposite party was not a cosharer in respect of the disputed property even though he had purchased some property from her son earlier but in respect of the disputed property the was not a co-sharer. Courts below found that the opposite party is not a co-sharer in respect of the holding which was involved in the proceedings, and also found that on the death of Chaitanaya the petitioner and her son became owners of the disputed property but the courts below dismissed the application under s, 8 of the Land Reforms Act filed by the petitioner solely on the ground that because of amendment in the definition of holding effected by s. 26(1) of the West Bengal Land Holding Revenue Act, there cannot be any co-sharer in respect of the holding as contemplated by the amending defintion. Accordingly, both the courts below dismissed the application. 3. Mr. Amal Das, learned advocate appearing for the petitioners sought our leave to file an amendment application to take up new grounds challenging the vires of s. 26(1)(a) of the West Bengal Land Holding Revenue Act, 1979 so far as it related to the provisions of ss. 8, 9.& 10 of W. B.L R. Act. 4. The expression 'holding' was defined in s. 2(6) of the WBLR Act. 8, 9.& 10 of W. B.L R. Act. 4. The expression 'holding' was defined in s. 2(6) of the WBLR Act. Prior to amendment it ran thus-"Holding", means the land or lands held by a raiyat and treated as a unit for assessment of revenue. This definition was amended by s. 26(1)(a) of the W. B.L.H. R. Act, 79 and deleted the latter part of the definition vs. and treated as a unit for assessment of revenue". Accordingly, the present definition of holding means the land or lands held by a raiyat. The courts below took note of this amendment and came to the conclusion that because of change in definition of holding there cannot be a co-sharer in respect of any holding, as holding constitute only the land or lands held by a raiyat. Accordingly, there cannot be any interest in the said holding in respect of any other person and only on this finding of law the courts below had dismissed the application under s. R of the WBLR Act, West Bengal Land Holding Revenue Act, 79 came into force on the 1st day of Baisakh, 1388 BS corresponding to 14th April, 1981. By the provisions of s, 26 (1) this Act amended several provisions of the WBLR Act. As the main dispute raised in this application centres round the provisions of s. 26 of the WBLHR Act, we propose to quote the same as under. S. 26. By the provisions of s, 26 (1) this Act amended several provisions of the WBLR Act. As the main dispute raised in this application centres round the provisions of s. 26 of the WBLHR Act, we propose to quote the same as under. S. 26. Amendments and savings (I)-With effect from the date of coming into force of this Act in any district, the following, amendments to the WBLR Act.1955 shall be deemed to have been made-(a) To clause (6) of s. 2, the words "and treated as a unit for assessment of revenue be omitted; (b) Clause (II) of s. 2 be omitted; (c) Sub-section (1) of s. II be omitted; (d) Chapter IV be omitted Provided that notwithstanding the provisions of sub-sec (1), 1he liability of a raiyat to pay revenue for his holding and collection of such revenue in accordance with the provisions of WBLR Act 1955 shall continue till the revenue in respect of such, holding of a raiyat is assessed, determined and levied in accordance with the provisions of this Act; Provided further that such payment of revenue made by a raiyat shall, in the manner prescribed, be adjusted towards the revenue payable by such raiyat in respect of his land holding on being assessed and determined in accordance with the provisions of this Act or be refunded to the raiyat if after assessment and determination of the revenue under the provisions of this Act, it is found that the raiyat is not liable to pay any revenue. (2) Notwithstanding the amendments mentioned in sub-section (1) any proceedings pending on the date of such coming into force of this Act before any authority appointed under this Act or any court shall be continued and disposed of as if this Act has not come into force in that district. 5. In this connection it may he noted that the provisos to sub-s. (1) were inserted by West Bengal Act XXXIII 111of 1981. The main provisions of S. 8 of the Land Reforms Act is that it confers a right of pre-emption of a transfer made by a co-sharer raiyat of a holding to a person other than a co-sharer raiyat. In this connection it may he noted that the provisos to sub-s. (1) were inserted by West Bengal Act XXXIII 111of 1981. The main provisions of S. 8 of the Land Reforms Act is that it confers a right of pre-emption of a transfer made by a co-sharer raiyat of a holding to a person other than a co-sharer raiyat. It provides that if any portion or share of a holding of a raiyat is transferred to a by person other than a co-sharer in the holding, the bargadar in the holding may within 1 months from the date of such transfer or any co-sharer raiyat of the .holding may within 1 months of the service of notice given under sub-so (5) of S. 5 or any raiyat possessing land adjoining such holding may within 4 months of the date of such transfer apply to the munsif having territorial jurisdiction for transfer of the said portion or share of the holding to him subject to the limitation mentioned in s. 14M on deposit of the consideration money together with a further sum of 10% of that amount. 5A. Section 9 provides the procedure to be followed on such an application and the order to be passed by the authorities concerned and some consequential orders that might be passed on such an application. Section 10 lays down the consequence of the orders passed under s. 9 of the Act. I n the proviso to s. 8 it has also been provided as to who will get preference in respect of an application under s. 8 filed by the bargadar, a co-sharer and a person having land adjoining the holding. 6. Mr, Das contended before us that the courts below had failed to take into consideration the object of amendment made by S. 26 of the WBLHR Act. The object of the Act - is to rationalise and improve the system of revenue on land holding in the interest of proper implementation of comprehensive measure for land reforms in the State with a view to providing incentives to have increased production and ensuring proper distribution of material resources for social and economic welfare. The object of the Act - is to rationalise and improve the system of revenue on land holding in the interest of proper implementation of comprehensive measure for land reforms in the State with a view to providing incentives to have increased production and ensuring proper distribution of material resources for social and economic welfare. Accordingly, the amendment sought to be made by s. 26 of this Act was meant for the purpose of achieving the object of this particular Act, such amendment can have no hearing on the substantive provision of s, g of the WBLR Act. Mr. Das in this connection further submitted that since s.8 of the Land Reforms Act has granted a legal right to a raiyot it can only he taken away by making a specific provision to that effect. It cannot be held by implication that Such a right no longer exists only because the concept of co-sharer of a holding has been changed by amending a definition by a provision of another Act. Referring to the provisions of s. 26 of the WBLHR Act Mr. Das submitted that it has been provided that with effect from the date of coming into force of the said Act the amendments shall be deemed to have been made. It clearly indicated that the amendments were meant for giving effect to the provisions of the Land Holding Revenue Act. Mr. Das further submitted' that in this context it is clear that the legislature never intended that the right under s.8 of Land Reforms Act would be taken away by amending the definition of holding. By s. 12 of WBLR (Amendment) Act, 1981 some amendments have been made in s. 8 of the WBLR Act. These amendments are subsequent to coming into force of the WBLHR Act. These amendments clearly indicate that the legislature intended that the provisions of s. 8 giving right of pre-emption to a co-sharer in the holding continued to remain in force. Mr. Das then contended that since for giving effect to the provisions of WBLHR Act there was no need to amend the definition of hulling appearing in the WBLR Act. The amendment was made only to avoid any conflict between the provisions of the WBLR Act as well as the provisions of the WBLHR Act. Mr. Das then contended that since for giving effect to the provisions of WBLHR Act there was no need to amend the definition of hulling appearing in the WBLR Act. The amendment was made only to avoid any conflict between the provisions of the WBLR Act as well as the provisions of the WBLHR Act. It was never intended that by amending some provisions of the WBLR Act it was intended that some rights granted would be taken away. Mr. Das also drew our attention to the fact that if in case the definition as amended is given effect to it will lead to an absurd position as under the amended definition a holding may constitute lands in different districts of West Bengal and any person holding land in any district of the State may file an application for pre-emption in respect of the land contained in the same holding but situate in another district on the strength that he holds contiguous land in respect of some land in any district of the State. Accordingly, he contends that legislature could never intend a result leading to such an absurd position. Mr. Das has drawn our attention to the decisions Bankim Bihari Maity v. Ganesh Chandra Sha reported in 1983 (1) CHN 156 , AIR 1982 SC 1413 and 2034 to impress on us that in interpreting any legislation the intention of the legislature may be taken into consideration, In support of his contention that if the interpretation leads to an absurdity of such interpretation has to be avoided, he has relied on a decision reported in AIR 1986 se 137, AIR 1987 SC 2034 and AIR 1985 SC 1698 . Mr. Das also argued before LIS that no amendment beyond the object of the Act can be made by a subsequent. Act amending the provisions of an earlier Act incorporating some provisions of the later Act into the earlier Act. 7. Mr. Sahu appearing for the opposite party submitted that since the amendment concerned is very clear and there is no ambiguity nothing should be put in interpreting the same which may deprive it of its own ordinary meaning The vires of the amendment of the definition of holding have been challenged qua the provision of ss. 8, 9, and 10 of the WBLR Act. Mr. 8, 9, and 10 of the WBLR Act. Mr. Sahu submitted that there was neither any ambiguity nor any repugnancy if the amendment is implanted in the body of the WBLR Act. According to him even after the amendment there may be cases where there will be a cosharer in respect of holding as amended and in such a case such co-sharers can take advantage of s. 8' of the WBLR Act. Mr. Sahu further submitted that this question was raised before a Division Bench of this Court as reported in 90 CWN 22. The Court has uphold the amendment made by s. 26 (1)(a). Accordingly, Mr. Sahu submit is that this aspect cannot again be agitated before this Hon'ble Court. 7A. On our request Mr. S. P. Roychowdhuy, learned advocate appearing in this matter as amicus curiae. Mr. Roychowdhury dwell on the provisions of pre-emption starting from s. 26 of the Bengal Tenancy Act till date. According to him the right of pre-emption is only a legal right but at the same time it is very weak legal right. By amending legislation such a right can be taken away by the legislature having competence to legislate on the subject. According to him an amendment cannot be made to defeat the object of the legislation itself but he submitted that by the instant amendment object of the Act has not been affected at all. Only those amendments which were necessary to give effect to the provisions of the WBLHR Act has only been made. He noted that Chapter IV of the WBLR Act provided for assessment and imposition of revenue under the Land Reforms Act. The WBLHR Act sought to enact a separate legislation on the subject and as a result of some amendment of the Land Reforms Act relating to assessment and levy of land revenue was necessary and s. 26(1) has only achieved that object by amending the provisions of the WBLR Act. In making such amendment if any right was granted to any raiyat is affected that must be treated as a logical corollary of the provisions made by the Legislature and it cannot be said that the legislature is not competent to make such amendment. 8. The main contention raised by Mr. Das is with regard to the intention of the legislature in amending the definition of a holding in West Bengal Land Reforms Act. 8. The main contention raised by Mr. Das is with regard to the intention of the legislature in amending the definition of a holding in West Bengal Land Reforms Act. We have already noted that the amendment was effected by virtue of s. 26(1) of the West Bengal Land Holding Revenue Act. Mr. Das contended that the amendment made by the provisions of allied Act on the face of it must relate to the object of the Act which sought to make the amendment in another Act. This contention of Mr. Das is not of universal application. Any change in this scope or effect of an existing statute, by addition, omission substitution of provisions, which does not wholly terminate its existence whether by an Act purporting to amend, repeal, revise or supplement or by an Act independent and original in form is treated as amendatory. It is the effect not the name given to the Act that determines its character. If a subsequent statute does in fact modify and change the proceedings to he had under a former Act, the latter Act is an amendment of the earlier Act and must be so regarded and treated although is not socalled in the Act itself. The position is therefore very clear that it is not the form of the amendment or the manner of it, but the express provisions made by amendment is to be taken into consideration in interpretating the same. In the instant case, the amendment sought to be made by s; 26(1) of the West Bengal Land Holding Revenue Act is very clear. There is no ambiguity in it. Mr. Sahu's contention that such an amendment if accepted on the face of it will create a large number of hurdles in achieving the object of the WBLR Act, as according to him it is repugnant to and in contradiction to some of the provisions of the WBLR Act. We have already noted the object of both the Acts. It may also be noted that the provision as to levy and realisation of land revenue was provided by Chapter IV of the Land 'Reforms Act has been deleted. Accordingly, the other provisions relating to land revenue appearing in the WBLR Act has also been deleted. It has also deleted clause JJ of s. 2 and sub-s. (1) of s. 11 of the WBLR Act. Accordingly, the other provisions relating to land revenue appearing in the WBLR Act has also been deleted. It has also deleted clause JJ of s. 2 and sub-s. (1) of s. 11 of the WBLR Act. Clause 2 (II) defined revenue an whatever is lawfully payable or deliverable in money or kind or both by a raiyat under the provision of the WBLR Act in respect of land held by him. Section 11 (1) of the Land Reforms Act related to the provisions for remission or abatement of land revenue in case of land lost by dilluvion. The provision relating to the land revenue were made in the provisions of the WBLR Act only in Chapter II which provided for the rights and obligations of raiyats contemplated under the Act. All the provisions which are concerned with land revenue has been sought to be deleted by the provisions of the WBLHR Act. The object is therefore very clear that levy assessment and realization of land revenue was sought to he made by the new Act in place of the provisions contained in West Bengal Land Reforms Act. The definition of holding was amended by deleting the portion which treated it an unity for assessment of revenue. This amendment was absolutely necessary as all the provisions relating to the assessment of revenue was substituted by the new provisions made in West Bengal Land Holding Revenue Act. It will also appear that by the new provision' the mode of assessment of revenue has altogether been changed. Section 8 of the WBLHR Act provided for levy and collection of revenue on land holding, The land holding is to be levied on the total ratable value of the land holding by a raiyat at the rate of or rates specified in the-schedule. The expression "land holding" has been defined by Clause (g) of s. 2 of the Act as total of every description of land held by a raiyat and explanation added to this definition makes it clear that the expression 'raiyat' in the definition shall include the members of his family. It is accordingly very clear that the total land revenue payable in respect of land holding will be levied on a raiyat. Therefore, in the concept of the land revenue the necessity of any unit of revenue no longer remains. Logically the legislature had deleted the same, Mr. It is accordingly very clear that the total land revenue payable in respect of land holding will be levied on a raiyat. Therefore, in the concept of the land revenue the necessity of any unit of revenue no longer remains. Logically the legislature had deleted the same, Mr. Das does not object to this hut argues that only on this basis it has to be concluded that the' amendment was made only to give effect to the provisions of the WBLHR Act and not to affect any right granted to a raiyat by the provision of the WBLR Act. As the provisions of the new Act is clear enough to provide for new concept of land revenue on the basis of a total land holding of a raiyat the whole concept of unit of assessment of revenue has been absolished. Therefore any right or obligation arising out of it must cease. If there is no concept of unit of assessment of revenue any right and obligation connected therewith must also necessarily go. 9. Mr. Sahu relying on a decision reported in 90 CWN 22 (Debendra Nath Karak v. Rekha Pal & anr.) submitted that since the scope of the provisions of s. 26(1)(a) of the WBHR Act has already been considered there is no scope for consideration of the same by this Bench. It appears from Debendra Nath Karak's. case that he made an application for preemption in respect of a plot of land under s. 8 of the Act alleging that he was a raiyat possessing land adjoining the disputed plot, The opposite parties asserted that since the entire holding has been transferred s. 8 does not apply. In resolving this question the Division Bench of this Court in the said case considered the scope and ambit of definition of holding as amended by the WBLHR Act. ft held that with effect from April 14, 1981 the date on which the WBLHR Act and s. 26(1) thereof came into force the concept of holding has under gone a change. All the lands held by a raiyat is now covered by one holding. Since in the case under consideration of the court it appeared that the transferor had other lands besides the lands transferred, the court held that a part of the holding has been transferred and allowed the application for pre-emption. All the lands held by a raiyat is now covered by one holding. Since in the case under consideration of the court it appeared that the transferor had other lands besides the lands transferred, the court held that a part of the holding has been transferred and allowed the application for pre-emption. In doing so the Division Bench considered a submission made on behalf of the opposite party that the amendment of the definition of holding was for the purpose of the WBLHR Act and not for the purpose of the WBLR Act. The Bench observed that the WBLHR Act in amending the definition of holding has not provided that such amendment is only for the purpose WBLHR Act. In the absence of any such provisions it is difficult to accept the contention made on behalf of the opposite party. The contention was, therefore rejected. Mr. Sahu submitted that since this decision does not refer to right of a co-sharer in a holding as contempleted by s. 8 of the WBLR Act, this decision is not binding on this Bench even if it is binding it will appear that no elaborated submission as to the effect of the amendment relating to the repugnancy and contradiction was not urged before the Bench. Accordingly, this Bench should refer the matter to a larger Bench. We will consider the repugnancy and contradiction that might have arisen as an direct of the amendment later. But for the present we accept the views of the Division Bench in Debendra Nath Karak's case that since the amendment itself does not indicate that it was confined to the provisions of the WBLHR Act we do not propose to go into the intention of the legislature as the provision itself make it abundantly clear that it has consciously made the amendment in the provisions of WBLR Act We have also noted that such amendment was absolutely necessary as otherwise there was apprehension of there being two parallel provisions for imposition and realisation of land revenue. 10. Mr, Sahu then contended that the provisions of s. 26(1) has not come into force. In making this submission reliance has been placed on a decision of this court reported in 90 CWN 1108 (Paschimbanga Rajya Bhumijibi Sangha & ors. (PRBS for short) v. State of West Bengal & Ors.). In this decision the vires .of WBLHR Act, 1979 was challenged. In making this submission reliance has been placed on a decision of this court reported in 90 CWN 1108 (Paschimbanga Rajya Bhumijibi Sangha & ors. (PRBS for short) v. State of West Bengal & Ors.). In this decision the vires .of WBLHR Act, 1979 was challenged. The Division Bench held the definition of the expression "area" in clause (c) of s. 2 of the Act as invalid and ultra vires It further observed that in the absence of valid substantive provision in the Act itself for determination .of areas the state cannot enforce the provisions of the Act. It was further declared that unless and until valid provisions have made far determination of areas revenue cannot be assessed upon total land holding of raiyat including members of a family. Mr. Das sought to contend that this decision has rendered the provisions of the land Holding Revenue Act non-applicable unless the definition of area is amended as indicated in the judgment. We do not agree with the submissions made by Mr. Das. In PRBS case the court did not declare the entire Act as ultra vires of any other provisions .of law .or of the provisions .of the Constitution. It only declared a particular definition invalid and ultra vires of the provisions of the Act itself. Other provisions remained in tact and upheld by the Division Bench by implication. Accordingly, the validity of s. 26(1) was also upheld. The Act came into force hut the provisiansre1ating to the levy assessment and realisation could not be given effect to. The legislation sought to be repealed namely Chapter IV of the WBLR Act came into force an the date an which the Land Revenue Holding Act came into force. This decision in our view, does not any way prevent the operation of s. 26(1) of the WBLHR Act. Mr. Das has also contended that the amendment proposed by s. 26(1) of the WBLHR Act is to came into effect an the date of coming into force of the Act in any district and it shall be deemed that the amendments to the WBLR Act have been made. Mr. Das contended that by a deeming provision such amendment cannot be made. Mr. Das contended that by a deeming provision such amendment cannot be made. As according to him the effect of this amendment is taking away the right given under a different statute and it must be given a substantive effect and not a deeming effect an and from a particular date. It is difficult to accept the contention made by Mr. Das. Section 26 only provides the date on which the amendment would came into force. We have already indicated that the provisions of Chapter IV of the WBLR Act were sought to be replaced by the provisions of the amending Act. Accordingly, those provisions which related to the subject matter dealt with by the amending Act has to made and such amendment must come into effect on the date on which the WBLHR Act will come into force, otherwise it would create a lot of contradictions and parallel legislation covering the same field will continue to operate. Accordingly, the legislature made the provision that s. 26 will come in force on the same date on which the WBLR Act would be operative, There could not be any scope of giving effect to this particular section on and from any other date when the legislature enacted this particular of piece of legislation it was not decided that effect from which date it will come into force, Therefore, such a deeming provision had to be made in s.26. Such provision, according to us, is quite logical and there cannot be any grievance against such a provision having been made by the legislature. 11. Mr. Sahu’s contention was that s.8 of the WBLR Act has given a right to a co-sharer in the holding to preempt any transfer made by a co-sharer in the holding to a person other than a co-sharer in the same holding. According to Mr. Das this is a right given to the raiyat on the strength of a substantive provision made in s. 8 of the Act. To take away such a right express provision is required to be made. Since this has not been done it must be held that the amendment sought to he made did not affect the substantive provision of the WBLR Act. It is true that since the concept of holding has undergone a complete change there is no question of there being a co-sharer in the holding. Since this has not been done it must be held that the amendment sought to he made did not affect the substantive provision of the WBLR Act. It is true that since the concept of holding has undergone a complete change there is no question of there being a co-sharer in the holding. Therefore that part of s. 8 which gives a right of pre-emption made a co-sharer in the holding is negated, as it appears to us that even after the amendment made in the definition of holding the legislature thought that there may be cases in which there may been co-sharer in the holding itself. We have already referred to the definition of land holding appearing on the WBLHR Act. In the assessment of revenue on the land holding itself there may be a co-sharer being a member of the family of the rairat. If such person can be treated as a co-sharer of the holding within the meaning of s. 8 is a question which has to be decided. Mr. Sahu also referred to the case of joint purchase by two or more persons together. We have not dealt with if these cases are also affected by the amendment in the definition of holding, However the legislature did not consider it necessary to bring in my change in the provision, of s.8 The legislature is always competent to make such amendment as and when the difficulties and contradictions are brought to this notice. Accordingly we do not propose to make a finding that there cannot be any co-sharer in the holding within the meaning of the Land Reforms Act as amended. We do-not do so because that is not the question arising for our consideration in this case 12. In view of what has been stated above we are of the view that on the facts of this case. we agree with the views of the courts below that the petitioner is not a co-sharer in respect of the disputed holding. Accordingly, this application fails and stands dismissed without any order as to costs. We record our appreciation of service rendered to us by Mr. Raychowdhury. Haridas Das, J. : I agree. Application dismissed.