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2009 DIGILAW 808 (CAL)

Rajat Neogi v. Pradip Kr. Sen

2009-11-17

JYOTIRMAY BHATTACHARYA

body2009
Judgment :- (1.) The certified copy of the impugned order which is filed in Court today by the learned Advocate for the petitioner be kept with the record. (2.) The propriety of an order passed by the learned Additional District Judge, 3rd Court, Hooghly in Civil Revision No. 119 of 2007 is under challenge in this revisional application at the instance of the pre-emptee/petitioner. (3.) Let me now consider as to how far the learned revisional Court was justified in passing the impugned order in the facts of the instant case. (4.) An application for pre-emption under Section 8 read with Section 9 of the West Bengal Land Reforms Act was filed by the pre-emptor/opposite party for exercising his right of pre-emption over the sale of the suit property by the raiyat in favour of the preemptee on the ground of co-ownership. The pre-emptee/petitioner appeared in the said proceeding and is contesting the same by filing objection against the said application for pre-emption. The application for pre-emption has matured for hearing and in fact is in the peremptory board for hearing. At this stage, the pre-emptee filed an application challenging the maintainability of the said pre-emption proceeding as according to the pre-emptee/petitioner, Section 8 and Section 9 of the West Bengal Land Reforms Act have no manner of application in case of transfer of any land which falls within the Urban Agglomeration. (5.) In support of such contention, a reference was made by the petitioner to a reported decision passed by a learned Single Judge of this Honble Court, in the case of Swapan Kumar Kar and Ors. v. Salil Kumar Dey and Ors., reported in 2004(2) CLJ (Cal) 273 wherein it was held that Section 8 and Section 9 of the West Bengal Land Reforms Act has no application to a transfer of any land which falls within the Urban Agglomeration. (6.) The said contention of the pre-emptee/petitioner was not accepted by the learned trial Judge. (7.) Accordingly, the pre-emptees prayer for rejection of the said pre-emption proceeding was rejected by the learned trial Judge. (8.) The pre-emptee/petitioner was aggrieved by the said order. As such he filed a revisional application being Civil Order No.119 of 2007 before the learned Additional District Judge, 3rd Court, Hooghly. (9.) The learned Additional District Judge rejected the said revisional application by affirming the findings of the learned trial Judge. (8.) The pre-emptee/petitioner was aggrieved by the said order. As such he filed a revisional application being Civil Order No.119 of 2007 before the learned Additional District Judge, 3rd Court, Hooghly. (9.) The learned Additional District Judge rejected the said revisional application by affirming the findings of the learned trial Judge. (10.) The propriety of the said order is under challenge in this revisional application before this Court. (11.) Heard the learned Advocate for the petitioner. Considered the materials-on-record including the order impugned. (12.) I have also considered the decision which was relied upon by the pre-emptee/petitioner in support of his contention that the provision contained in Section 8 and Section 9 of the West Bengal Land Reforms Act, 1955 have no application in case of a transfer of a land falling within the Urban Agglomeration. (13.) Undisputedly, the suit land is situated within the Urban Agglomeration in the District of Hooghly. As such, this Court is required to consider the petitioners objection regarding maintainability of the said application by keeping in mind the aforesaid decision which was referred to by the petitioner as mentioned above. Accordingly, this Court has carefully gone through the said decision of this Honble Court. (14.) After going through the said decision, this Court finds that the said conclusion was arrived at by the learned Single Judge of this Honble Court, by relying upon another Division Bench decision of this Honble Court in the case of Paschimbanga Krishak Samiti v. State of West Bengal, reported in 1996 (2) CLJ 285 . (15.) I have also considered the said Division Bench decision of this Honble Court particularly Paragraph-51 thereof which was relied upon by the learned Single Judge of this Honble Court in the subsequent decision. (15.) I have also considered the said Division Bench decision of this Honble Court particularly Paragraph-51 thereof which was relied upon by the learned Single Judge of this Honble Court in the subsequent decision. (16.) Paragraph-51 of the said decision is set out hereunder: -"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." (17.) The principal issue in the said Division Bench decision related to the interpretation of various amended provisions of the West Bengal Land Reforms Act concerning (1) determination of ceiling limit of the raiyat after change of the definition of Land in the said Act, (2) vesting of excess land of the raiyat and (3) reasonableness of fixation of compensation to be paid for such vesting. In the said context, the Division Bench discussed as to whether vacant urban land within the Urban Agglomeration can be taken into consideration for assessment of ceiling limit of the raiyat. (18.) Even the said decision makes it clear that the provision of West Bengal Land Reforms Act is applicable to the agricultural land within the Urban Agglomeration. (19.) In my view, the said decision does not help this Court to solve the present problem in hand. (20.) On careful examination of the said Division Bench decision, this Court finds that the applicability of Sections 8 and 9 of the West Bengal Land Reforms Act in case of a transfer of any land within the Urban Agglomeration was not an issue before the Division Bench of this Honble Court in the case of Paschimbanga Krishak Samiti v. State of West Bengal. The said issue was neither raised in the said proceeding nor was it decided therein. (21.) However, the learned Single Judge of this Honble Court held by relying upon Paragraph-51 of the said Division Bench decision that Section 8 and Section 9 of the said Act have no application in the case of a transfer of any land within the Urban Agglomeration. (21.) However, the learned Single Judge of this Honble Court held by relying upon Paragraph-51 of the said Division Bench decision that Section 8 and Section 9 of the said Act have no application in the case of a transfer of any land within the Urban Agglomeration. (22.) If the said view of the learned Single Judge is accepted then the provision contained in Section 1 of the West Bengal Land Reforms Act, 1955 will have no meaning. In fact, the provision contained in Section 1 (2) of the West Bengal Land Reforms Act, 1955 was not taken care of at all by the learned Single Judge while deciding the said issue in the case as referred to above. (23.) Section 1(2) of the West Bengal Land Reforms Act, 1955 is set out hereunder: -"It extends to the whole of West Bengal (except the area described in Schedule-1 of the Calcutta Municipal Corporation Act, 1980 (West Bengal Act, LIX of 1980) but not excepting the area included in the said Schedule, which immediately before the coming into force of the Calcutta Municipal Corporation (Amendment) Act, 1983 (West Bengal Act, XXXII of 1983) was comprised in the Municipality of Jadavpur, South Suburban or Garden Reach). Provided that the State Government may, from time to time by notification in the Official Gazette, extend and bring into force the provisions of the Act, in whole or in part, to such part or parts of (the area described in Schedule-1 of the Kolkata Municipal Corporation Act, 1980 (West Bengal Act, LIX of 1980) with effect from such date or dates as may be specified in the notification)." (24.) The said provision, thus, makes it clear that the provision contained in the West Bengal Land Reforms Act is applicable to the whole of West Bengal excepting the excluded area as mentioned above. (25.) Admittedly, the said land is not situated within the Calcutta Municipal Corporation wherein the operation of the Act was excluded. The suit land is situated in the District of Hooghly. As such, the entire provision of the said Act is applicable in the said area. (25.) Admittedly, the said land is not situated within the Calcutta Municipal Corporation wherein the operation of the Act was excluded. The suit land is situated in the District of Hooghly. As such, the entire provision of the said Act is applicable in the said area. (26.) Even the Urban Land (Ceiling and Regulation) Act does not contain any provision providing exclusion of operation of any of the provisions relating to the laws of preemption contained in the West Bengal Land Reforms Act, 1955 in case of a transfer of any land within the Urban Agglomeration. (27.) Thus, if the provision under the said two Acts are considered carefully then this Court has no hesitation to hold that Section 8, Section 9 and Section 10 of the West Bengal Land Reforms Act, 1955 are attracted in case of transfer of any land within the Urban Agglomeration unless such land is situated within the restricted area as mentioned in Section 1 sub-section (2) of the West Bengal Land Reforms Act over which the Land Reforms Act has no application. (28.) This Court is, thus, of the view that the judgment which was relied upon by the petitioner in the case of Swapan Kumar Kar and Ors. v. Salil Kumar Dey and Ors., reported in 2004 (2) Cal LJ 273 is per in curium as the said judgment was delivered without taking note of the provision of Section 1 sub-section (2) of the West Bengal Land Reforms Act which was very much relevant for deciding the said issue. (29.) Under such circumstances, this Court does not find any justification to interfere with the order impugned as it was rightly held by both the Courts below that the laws of pre-emption is applicable to the transfer of the suit land. (30.) This Court, thus, has affirmed the findings of both the Courts below. (31.) The revisional application, thus, stands rejected. (32.) It is, however, made clear that while deciding this revisional application, this Court has not considered the merit of the pre-emption application. (33.) Accordingly, the learned trial Judge is absolutely free to consider the merit of the pre-emption application in accordance with law "without being influenced by any of the observations made hereinabove. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.