A. N. RAY, J. ( 1 ) THE application is made for recall of my ex parte order dated 25th March, 1991 when only the petitioner was represented. I think there was sufficient cause for non-appearance on the part of the opposite party and as such I re-call the order dated 25th March 1991, as indicated to appearing counsel that in case I re-call the order I would again hear the application immediately on merits upon address by both sides, the matter was re-heard. Upon hearing I think that the order passed on 25th March, 1991 was substantially correctly passed. The said order shall therefore remain as it is along with the judgment and reasons but not as an order passed on 25th March, 1991 but as an order passed to-day, on hearing As such the period of disposal of the appeal fixed for three months from that date shall run from today. ( 2 ) CERTAIN other observation also have to be made by me. It was argued on the part of the opposite parties that in view of the decision of the Division Bench of this Court in the case of Prasad Kumar Dhara reported in 1982 Vol. II, Calcutta High Court Notes page 1 it should be held that the meaning of homestead and tank to be attached to the definition of land given in section 2 sub-section (2) of the West Bengal Restoration of Alienated Lands Act, 1973 should be homestead and tank of an agriculturist It was thus argued that in the instant case the only two pieces of property involved being homestead and tank and the appellate tribunal having come to the conclusion that the transferor was not an agriculturist I should, while re-hearing the matter, rather dismiss the application than maintain my earlier order. ( 3 ) I have considered the said division bench judgment with as much care as lies within my capacity ; I do not think that the said judgment is an authority for the proposition that homestead or tank should be that of an agriculturist within the meaning of the said quoted sub-section. ( 3 ) I have considered the said division bench judgment with as much care as lies within my capacity ; I do not think that the said judgment is an authority for the proposition that homestead or tank should be that of an agriculturist within the meaning of the said quoted sub-section. In the 4th paragraph of the judgment Justice Anil Kumar Sen indicated that according to the special officer in that case the property transferred was a property situated within the municipal area, and was primarily let out to tenants, as such the said officer concluded that it does not answer the description of the term land in the Act. The appellate authority was quoted by His Lordship as having said that the land "need not essentially be agricultural for being within the purview of the Act". In this context in the 5th paragraph His Lordship said as follows : "obviously the term homestead when included within the meaning of the term land means homestead of an agriculturist and not any and every structure on non-agricultural land. This seems to be clear on the context and the appellate authority was in error in thinking that the land or the structure thereon need not necessarily be agricultural". Clearly in that case the agricultural nature of land was in issue and not the occupation of the transferror, that is whether he was an agriculturist or not. Furthermore the land in question being within the municipal area it was nobody's case that the tenanted structure was on generally agricultural land. Nor is it clear how the issue of a homestead arose regarding tenanted property. ( 4 ) IN this context, in my respectful reading of the said judgment, the pure question as to whether the homestead of an agriculturist wherever situated, whether in the Panchayat area as in this case, or when it is surrounded by or is generally upon an area which is predominantly agricultural, was not in issue before the Division Bench. I am therefore unable on the authority of the said division bench judgment to interpret the words homestead or tank as being restricted to only those belonging to an agriculturist and not to any others under any situation, even if they are villagers, or live in Panchayat or a pre-dominantly agricultural area. I am therefore unable on the authority of the said division bench judgment to interpret the words homestead or tank as being restricted to only those belonging to an agriculturist and not to any others under any situation, even if they are villagers, or live in Panchayat or a pre-dominantly agricultural area. I am to note that there are no words of limitation to be found within the express definition of the said sub-section by way of which the homestead or tank is to be limited in meaning in regard to the occupation of the holder transferor. Mr. Banerjee again arguing for the petitioners in reply to the aforesaid argument based upon the division bench judgement, relied, in his turn, upon three cases. He has relied upon the case of Sri Ratu Dutta which was a decision of Justice 'g- N. Roy reported in 93 CWN 942 and has relied upon the concluding portion of the paragraph 6 at page 947, where His Lordship has observed that the term 'land' should receive a liberal interpretation ; there His Lordship has also referred to the case of Chitta Ranjan Ghosh remarking that land means agricultural land and includes homestead, tank, well etc. These were said in passing and this question of an agriculturist's possession was not being squarely raised ; yet the said passage does indicate that a liberal construction is called for and not a restrictive one unless there are good reasons to the contrary. ( 5 ) IN the case of Chitta Ranjan Ghosh referred to above which is reported in 1976 (2) CLJ page 180 it was said in paragraph 17 that rights of raiyat are protected. It was argued by Mr. Banerjee that while this was stated, there was no reservation made about the raiyats having to be agriculturists. Indeed there was no such reservation but the point was not being decided upon. In the case of Sudhansu Koley reported in 1978 (1) CLJ page 233, which case also was relied upon on the part of the petitioner, Justice Salil Kumar Dutta stated in paragraph 6 that the restoration of alienated land would also be operative in the case of homestead. True, the homestead was not there limited to the homestead of an agriculturist but again the point had not arisen for direct decision. True, the homestead was not there limited to the homestead of an agriculturist but again the point had not arisen for direct decision. In the above view of the matter I have to come to this conclusion that the question whether homestead or tank within the meaning of the instant sub-section should belong to an agriculturist exclusively is a question which has not yet been finally pronounced upon by any earlier decision. As such I am free to lay down as I hereby do that the homestead or tank may belong to a non-agriculturist also, provided the other conditions of the Act are satisfied, in that event, even at the instance of a non-agriculturist, an application for restoration would be maintainable. On the second argument on behalf of the opposite party that though there should have been two appeals there is but one appeal, I need not make any pronouncement as the point may be raised before the appellate authority when the appeal is heard on remand and the appellate authority may come to a just and legal decision in that regard. In so far as the question of taking any further evidence before, the Appellate authority is concerned I do not think that I need to say anything further in that respect though the passage in my earlier order dated 25th March, 1991 regarding Benoy Kumar Biswas's examination was pointed out to me today. As such the prayer for recall of the order dated 25th March, 1991 is allowed and the said order is recalled and re-passed today as indicated earlier with the aforesaid additional observations. I make it clear that in this matter whatever I have said is not to be treated as a pronouncement or observation upon any fact whatsoever. These are only observations on a question of law; this observation is especially to be noted with regard to the agricultural nature or not of the land in question or any other surrounding land, that might be a relevant issue in the appeal. Application allowed