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2007 DIGILAW 281 (CAL)

PUNIT SINGH v. GOUR @ GOBINDA CHANDRA DAS

2007-04-11

SAILENDRA PRASAD TALUKDAR

body2007
( 1 ) THE present application under Article 227 of the Constitution is directed against the judgement and order dated 14-05-2004 passed by the learned Additional District Judge and Judge, 1st Fast Track Court, chandernagore, in Misc. Appeal No. 92 of 1995 thereby affirming the judgement and order dated 09-02-1985 passed by the learned 1st Court of munsif, Chandernagore, in Misc. Case No. 49 of 1989. ( 2 ) THE opposite parties as pre-emptors filed an application under section 8 of the West Bengal Land Reforms Act, 1955 as against the present petitioner as opposite party No. 1 and one Gopa! Chandra Das (since deceased)', the predecessor of the proforma opposite parties herein. lt was claimed in the said application under Section 8 of the W. B. L. R. Act that the case plot being No. 1173 measuring 92 sataks originally belonged to Ashutosh Das and Dasorathi Das to the extent of 8 anna share each. Ashutosh Das died leaving 3 sons, namely, Santiram Das, Gopal Chandra das and Gour @ Gobinda Chandra Das. Among the heirs of Ashutosh Das and Dasorathi Das, there had been a partition of the case plot. The demarcated portion of the property was allotted in the manner is described in the petition. Santiram got 'a' schedule property, Gopal got B' schedule property, Gour @ Gobinda got 'c' schedule property and Ananta Bala Das got 'd' schedule property. The opposite party No. 1 got demarcated 'c' schedule land of the said case plot to the east of the 'b' schedule property, i. e. the portion of Sri Gopal Chandra Das. The opposite party Nos. 2 and 3, i. e. the sons of the opposite party No. 1 got 'a' schedule property, i. e. the portion of the said Santiram Das by way of bequest from Panchubala Dasi, the wife of the said Santiram Das, which is adjacent west to the 'b' schedule land of said Gopal Chandra Das, the predecessor of the proforma opposite parties. ( 3 ) ON 18-10-1986, the said Gopal Chandra Das without serving any notice to the opposite parties sold out his share of the plot and the deed was finally registered on 21-11-1989. The opposite parties being raiyats possessing the adjacent land of the land which was transferred by the said deed, filed a pre-emption application. ( 4 ) THE said Misc. The opposite parties being raiyats possessing the adjacent land of the land which was transferred by the said deed, filed a pre-emption application. ( 4 ) THE said Misc. case under Section 8 of the W. B. L. R. Act was duly contested before the learned Trial Court. The opposite party therein raised the issue that the case property is bastu in nature and as such, there cannot be any pre-emption in respect of the same on the claim of being contiguous landholders. Such pre-emption was sought to be resisted on the further ground that the petitioner had knowledge of the transfer and the misc. case as such is barred by limitation. Learned Trial Court by the judgement and order dated 09-02-1995 allowed the Misc. case and being aggrieved by such order, the said appeal being Misc. Appeal No. 92 of 1995 was filed. ( 5 ) THE learned Appellate Court by the judgement and order dated 14-05-2004 dismissed the appeal thereby affirming the judgement and order passed by the learned Trial Court. ( 6 ) MR. Ghosh appearing as learned Counsel for the petitioner has first raised the point that the property under reference cannot come within the scope and meaning of Section 8 of the W. B. L. R. Act and as such, there could be no application for pre-emption in respect of the same. Apart from inviting attention of the Court to the definition of "land" in the W. B. L. R. Act, 1955, Mr. Ghosh has invited attention of the Court to the definition of "urban land" as defined Section 2 (o) of the Urban Land (Ceiling and Regulation)Act, 1976. Apart from inviting attention of the Court to the definition of "land" in the W. B. L. R. Act, 1955, Mr. Ghosh has invited attention of the Court to the definition of "urban land" as defined Section 2 (o) of the Urban Land (Ceiling and Regulation)Act, 1976. Urban land in the said Act has defined as follows :- " (o) "urban land" means,- (i) any land situated within the limits of an urban agglomeration and referred to as such in the master plan ; or (ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called), a notified area committee, a town area committee, a city and town committee, a small town committee, a Cantonment Board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture. " ( 7 ) IN this context, Mr. Ghosh has further referred to the observations made by the Division Bench of this Court in the case of Paschimbanga bhumijibi Krishak Samity and Ors. v. State of West Bengal and Ors. , reported in (1996)2 Cal LJ 285 : 1996 WBLR (Cal) 242. Learned Division Bench in the said case observed as follows :- "having regard to the scope and object of both the Acts, we are of the opinion that on applying the principles of harmonious construction and with a view to remove the intrinsic inconsistencies, it should be held that the provisions of the West Bengal Land Reforms Act have no application in respect of matters covered by Urban Ceiling Act. However, it is made clear that the said Act will have application to agricultural lands situated within the said Area". ( 8 ) THEREAFTER, Mr. Ghosh has produced the copy of the relevant deed whereby the property under reference was transferred. The said property as described in the schedule of the said deed clearly indicates that it is within the Municipality of Bhadreswar and it includes structure as well as a common passage. ( 9 ) IN response to this, Mr. Ghosh has produced the copy of the relevant deed whereby the property under reference was transferred. The said property as described in the schedule of the said deed clearly indicates that it is within the Municipality of Bhadreswar and it includes structure as well as a common passage. ( 9 ) IN response to this, Mr. Roy as learned Counsel for the present opposite parties first mentions that this point was not effectively raised before the learned Trial Court nor before the learned Appellate Court. Assuming it to be so, it cannot be said that such a vital point of intrinsic nature can very well be allowed to be taken even at this stage. ( 10 ) MOREOVER, as it appears from the present application under Article 227 of the Constitution itself that the proceeding under Section 8 of the w. B. L. R. Act was challenged on the ground of maintainability as well. Moreover, such issue that the concerned property relates to a bastu was raised before the learned Trial Court. ( 11 ) IN such circumstances, it is difficult, if not impossible to brush aside the grievances as ventilated by Mr. Ghosh on the behalf of the petitioner. ( 12 ) TRUE, the application under Section 8 of the W. B. L. R. Act seeking pre-emption was allowed by the learned Trial Court and the same was thereafter affirmed by the learned Appellate Court. ( 13 ) MR. Roy referring to all such developments submits that the scope and ambit of the present application under Article 227 of the constitution cannot be so wide as to entertain the grievances relating to the nature of the property which was sought to be pre-empted. ( 14 ) IT, however, cannot be denied that the said aspects strike at the very root of the proceeding and if the stand taken on behalf of the present petitioner is accepted, it cannot be said that the learned Court had any jurisdiction to entertain the said application under Section 8 of the W. B. L. R. Act. ( 15 ) AS such, this Court is inclined to hold that there had been illegal exercise of jurisdiction by the learned Trial Court as well as by the learned appellate Court and this Court cannot afford to remain a passive onlooker to the same. ( 15 ) AS such, this Court is inclined to hold that there had been illegal exercise of jurisdiction by the learned Trial Court as well as by the learned appellate Court and this Court cannot afford to remain a passive onlooker to the same. The property under reference thus does not come within the scope and ambit of Section 8 of the W. B. L. R. Act and as such, there could be no order of pre-emption in respect of the same. ( 16 ) IN view of such findings, it become perhaps unnecessary to deal with the other aspects, i. e. relating to limitation. ( 17 ) MR. Ghosh inviting attention of the Court to the earlier suit brought by the present petitioner submits that it cannot be said that the petitioner did not have knowledge of the relevant transfer of the property under reference. In fact, Mr. Ghosh has also referred to the evidence adduced in the said case. ( 18 ) BUT Mr. Roy quite rightly submits that even assuming that the petitioner have knowledge about such transfer, he could no,t have approached the learned Court with a prayer for pfe-emption at this stage. The applicant seeking pre-emption had to wait for the registration of the transfer deed and having regard to the date of entry in the volume, it cannot be said that the application under Section 8 of the W. B. L. R. Act was barred by limitation. The said application was filed within the statutory period of four months and as such, the grievance raised in this regard does not seem to have any legs to stand upon. ( 19 ) AS indicated earlier, having regard to the nature of the property under reference, the apposition for pre-emption cannot be said to be maintainable and in view of the matter, the order passed by the learned trial Court as well as the judgement and order impugned being dated 14-05-2004 are liable to be set aside. ( 20 ) THE present application being C. O. No. 2053 of 2005 is, thus, allowed. ( 21 ) THERE will, however, be no order as to costs. ( 22 ) URGENT xerox certified copy of this order, if applied for, be given to the learned Counsel for the parties expeditiously. ( 20 ) THE present application being C. O. No. 2053 of 2005 is, thus, allowed. ( 21 ) THERE will, however, be no order as to costs. ( 22 ) URGENT xerox certified copy of this order, if applied for, be given to the learned Counsel for the parties expeditiously. C. O. No. 3460 of 2006 ( 23 ) IN view of the order passed by this Court in connection with' c. O. No. 2053 of 2005, the present application under Article 227 of the constitution whereby the order No. 20 dated 30-08-2006 passed by the learned Additional District Judge, 1st Fast Track Court, Chandannagar, in title Appeal No. 121 of 2005 has been challenged become infructuous. ( 24 ) AFTER hearing. Mr. Ghosh, learned Counsel, for the petitioner and Mr. Roy as learned Counsel for the opposite party, the said application be dismissed being infructuous. ( 25 ) THERE will, however, be no order as to costs.