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Narayan Chandra Ghosh and anr. Vs. Sanat Kumar Das and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberC.R. No. 2543 of 1974
Judge
Reported inAIR1975Cal290
ActsWest Bengal Land Reforms Act, 1955 - Section 8(1); ;Constitution of India - Article 19(1)
AppellantNarayan Chandra Ghosh and anr.
RespondentSanat Kumar Das and ors.
Appellant AdvocateSudhir Kumar Dutta, Adv.
Respondent AdvocateRebati Nath Sarkar, Adv.
Cases ReferredJadunath v. Parameswara
Excerpt:
- .....rival claimants for pre-emption, of whom one is a co-sharer and the other is a raiyat possessing land adjoining 'the holding, the co-sharer will have the prior right for preemption. the second proviso is as follows: 'provided further that as amongst raiyats possessing lands adjoining such holding preference shall be given to the raiyat having the longest common boundary with the land transferred.' it appears that both the provisos are to be read together and under second proviso in case of rival claims for preemption the preference is to be given to the raiyat having the longest common boundary with the land transferred. this proviso does not contemplate a transfer to a person who is already a raiyat possessing adjoining lands and such a transferee cannot pre-empt against himself. it.....
Judgment:
ORDER

Salil Kumar Datta, J.

1. This Rule was obtained against the appellate order dated March 19, 1974 in Misc. Appeal No. 127 of 1973 disallowing an application for pre-emption under Section 8(1) of the West Bengal Land Reforms Act, 1955 (West Bengal Act X of 1956).

2. The facts in short are as follows. Opposite parties Nos, I and 2 purchased 11 dec, of land of dag No. 1887 of Mouza Bara Sangra, khatian No. 326 P. S. Sainthia, District Birbhum, by a registered kobala dated 15th June, 1968. The petitioners before are filed an application for pre-emption of the lands under the said kobala on the grouac that they were owners of the adjoining plots on the west. It may be mentioned that the opposite parties Nos. 1 and 2 an also the owners of adjoining plots situated on the south of the disputed plot. The application for pre-emption giving rise to Mist, Judicial Case No. 72 of 1972 was dismissed by the learned Munsif by order dated August 14, 1973 whereby the application for pre-emption was rejected. It was held relying on the decision in Bhau Ram v. Baijnath Singh, : AIR1962SC1476 that the law of. pre-emption on ground of vicinage imposed an unreasonable restriction on the right to acquire, hold and dispose of property guaranteed under Article 19(1)(f) of the Constitution and as such application for pre-emption was not maintainable. Against this decision the appeal referred to above was taken by the pre-emptor and the appellate court by the impugaed judgment held that Section 8(1) of the West Bengal Land Reforms Act, 1955 providing for pre-emption on ground of vicinity was enacted with the intention of consolidation of agricultural holdings and accordingly it could not be said that the provisions are ultra vires Article 19(1)(f) of the Constitution and that was also not the decision of !he Supreme Court in Bhau Ram's case which dealt with pre-emption of urban lands. The appellate court was further of the opinion that the purchaser opposite parties Nos. 1 and 2 had a longer boundary with the disputed plot than the petitioner-preemptors even to the naked eye. Accordingly this application for pre-emption in view of the second proviso to Sub-section (1) of Section 8 could not be allowed. In this view the appeal was allowed in respect of order for costs only and the application for pre-emption was dismissed modifying the order of costs. The pre-emptors have obtained this Rule against this order.

3. Mr. Rebati Nath Sarkar learned Advocate appearing for the opposite-parties raised a preliminary objection contending that the provisions of Section 8(1) of the West Bengal Land Reforms Act amounted to an unreasonable restriction on the right to acquire, hold and dispose of property guaranteed under Article 19(1)(f) of the Constitution and accordingly the provisions for preemption on the ground of vicinage was unconstitutional and he also relied on the decision in the case cited above. The decision in the above case was concerned with Rewa State Pre-emption Act, 1946 which applied not only to agricultural lands but also to urban property including house property. It was observed (p. 1482).

',.,........, The matter of consolidation might have had some bearing if the Rewa Act was applicable to agricultural lands only. But as it applies to urban lands as well is house property where no question of consolidation of holding arises, the impugned provision cannot be held to be a reasonable restriction in the interests of the general public on the ground that it leads to consolidation of agricultural holding. There is no way of severing the application of law so far as it relates to agricultural holdings from its application to urban or house property and therefore the entire provision as to vicinage must fall, even if something could be said in its favour with respect to agricultural holdings on ground of consolidation.'

The West Bengal Land Reforms Act, 1955 (Act X of 1956) was enacted with the following objects in view as will appear from its statement of objects and reasons set out as follows:

'Abolition of the Zemindari system has been effected by the West Bengal Estates Acquisition Act, 1953, which provides for vesting of all estates and the rights of every intermediary (now raiyats and under raiyats) therein in the State free from all incumbrances. It is necessary to follow up that Act by a comprehensive measure of land reforms so as to remodel the existing system of land tenure by providing for such matters as--

(a) the rights, obligations and incidents in respect of the holdings of raiyats;

(b) limitation on transfer and sub-letting of land so as to prevent accumulation of lands in a few hands or any land being acquired by non-agriculturists;

(c) control and regulation of the share-produce system of cultivation;

(d) introduction of a rational system of assessment on land, consolidation of holdings, formation of co-operativte farms and concessions and facilities for such farms;

(e) maintenance and revision of record of rights; and

(f) other matters in regard to rights in land and management thereof.'

The West Bengal Act X of 1956 we are concerned with applies only to agricultural lands and one of its objects is to secure consolidation of holdings. Provision of preemption for, raiyats of lands on ground of vicinage is intended to secure consolidation of holdings and as such cannot be said to be an unreasonable restriction on the right to acquire, hold or dispose of the property guaranteed by Article 19(1)(f) of the Constitution. Accordingly Section 8(1) for preemption is not ultra vires the Constitution.

4. It would further appear that the West Bengal Land Reforms Act has been since included in the Ninth Schedule of the Constitution so that the relevant provisions of the statute cannot be deemed to be void or ever to have become void on the ground that such provision is inconsistent with or takes away or abridges any of the rights conferred by Part III of the Constitution. The preliminary objection therefore has no substance.

5. Mr. Dutta appearing for the petitioners submitted that the petitioners had since acquired binds adjoining the disputed lands by kobalas dated August 31, 1968 which have a longer boundary with the disputed land than the lands of the opposite parties Nos. 1 and 2. He submits that the purchases made by the petitioners subsequently as aforesaid should also be taken into consideration in considering the rival claims for pre-emption. He has referred to the decision in Jadunath v. Parameswara, (1940) 44 Cal WN 233 = (AIR 1940 PC 11) wherein it was held that a partition suit in which the preliminary decree has been passed is still a pending suit and the rights of the parties who are added after the preliminary decree have to be adjusted at the time of the final decree. This decision, in my opinion, has got no bearing with the provisions of the statutes we are concerned with. It will be seen that Section 8(1) gives a right to any raiyat possessing lands adjoining such holding to pre-empt or to apply for transfer of the portion transferred to a stranger to him under certain conditions. The right under the section is available only when a portion or share of a holding is transferred. Accordingly the right to pre-empt comes into existence or accrues on the day the transfer is made to a stranger and only such right can be sought to be enforced by an application under Sections 8 and 9. It has got no similarity with partition suit nor with any suit for ejectment in which the cause of action arises on the determination of the tenancy and subsequent events may be merely grounds of eviction under Premises Tenancy Acts. Accordingly I am unable to accept Mr. Dutta's contention that the subsequent acquisition of lands in the vicinity by a pre-emptor after the impugned transfer will afford him further right for pre-emption on the ground of vicinage.

6. Mr. Dutta has further drawn my attention to the two provisos to Section 8(1). The first proviso lays down that when there are rival claimants for pre-emption, of whom one is a co-sharer and the other is a raiyat possessing land adjoining 'the holding, the co-sharer will have the prior right for preemption. The second proviso is as follows: 'Provided further that as amongst raiyats possessing lands adjoining such holding preference shall be given to the raiyat having the longest common boundary with the land transferred.' It appears that both the provisos are to be read together and under second proviso in case of rival claims for preemption the preference is to be given to the raiyat having the longest common boundary with the land transferred. This proviso does not contemplate a transfer to a person who is already a raiyat possessing adjoining lands and such a transferee cannot pre-empt against himself. It contemplates two rival applicants applying for pre-emption on ground of vicinity and in such situation preference is to be given to the raiyat holding longest common boundary. That being the position, it seems to me that when a raiyat possessing adjoining lands is also the transferee of a portion or share of a holding, he cannot resist an application for pre-emption by another raiyat holding lands adjoining the disputed holding. It may be, as Mr. Sarkar submits, that the intention of the legislature was to include such persons in considering rival claims for preemption but in view of the express provisions of the Act, even though I am inclined to agree with Mr. Sarkar, it is not possible to hold so which will amount to importing words in the statute which are not there Accordingly it appears to me that the appellate court acted without jurisdiction in considering the opposite parties Nos. 1 and 2, the transferees, a rival pre-emptors and to dismiss the application for pre-emption on that basis.

7. As a result, this Rule succeeds and is made absolute. The orders of the courts below are set aside and the application for pre-emption is allowed. The learned munsif will now pass consequential orders in accordance with law.

8. There will be no order for costs in this Rule.

9. Let the records be sent down as early as possible.


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