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Prosad Kumar Dhara Vs. Kamala Kanta Dikshit and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberC.C. Nos. 547-548 of 1982
Judge
Reported inAIR1982Cal532,1982(2)CHN1,(1982)2CompLJ164(Cal),86CWN848
ActsWest Bengal Restoration of Alienated Land Act, 1973 - Sections 2(2) and 4
AppellantProsad Kumar Dhara
RespondentKamala Kanta Dikshit and ors.
Appellant AdvocateTapan Kumar Dutta, Adv.
Respondent AdvocateAmitava Nayak, Adv.
DispositionPetitions allowed
Excerpt:
- .....initiated the aforesaid two proceedings under section 4 of the said act for restoration of the land so transferred,3. section 4 provides that where before the commencement of the act a person being the transferor holding not more than 2 hectares of land in the aggregate on the date of transfer transferred the whole or any part of his land by sale to any person being the transferee, then, on fulfillment of certain conditions, the transferor may make an application to the special officer for restoration of such land to him. one out of the two alternative conditions to be fulfilled is that the transfer must have been made after the expiry of the year 1967 and must be in distress or in need of money for maintenance of the transferor or his family or for meeting the costs of his.....
Judgment:

Anil K. Sen, J.

1. These are two applications under Article 227 of the Constitution arising out of two proceedings under the West Bengal Restoration of Alienated Land Act, 1973 being Cases Nos. 89 and 90/75-76 The respective opposite parties Kamala Kanta Dikshit and Lakshmi Kanta Dikshit initiated those proceedings for restoration of lands and buildings transferred by them in favour of the present petitioner in the year 1968.

2. It is not in dispute that the two brothers were the owners of a premises consisting of four rooms, verandah, kitchen and privy situate at holding No. 107, Ward No. 3 within the Tamluk Municipality. In the year 1968 the two brothers by two sale deeds transferred their respective shares in the said property to the present petitioners and the deeds recite that such sale was being made to meet the need of money for the business of the two brothers. As and when the West Bengal Restoration of Alienated Land Act, 1973, came into force, these two brothers, the transferors, initiated the aforesaid two proceedings under Section 4 of the said Act for restoration of the land so transferred,

3. Section 4 provides that where before the commencement of the Act a person being the transferor holding not more than 2 hectares of land in the aggregate on the date of transfer transferred the whole or any part of his land by sale to any person being the transferee, then, on fulfillment of certain conditions, the transferor may make an application to the Special Officer for restoration of such land to him. One out of the two alternative conditions to be fulfilled is that the transfer must have been made after the expiry of the year 1967 and must be in distress or in need of money for maintenance of the transferor or his family or for meeting the costs of his cultivation. 'Land' referred to in Section 4 has been defined by the Act to mean agricultural land and includes homestead, tank, well and water-channel.

4. Such being the provision, the Special Officer dismissed both the applications upon a clear rinding that the requirements of Section 4 had not been fulfilled. According to him the property transferred is a property situate within the municipal area primarily let out to tenants and as such, does not answer the description of the term 'land' asdefined in the Act. He further held that, since the transfer again was effected to meet the need of money for the respective business of the transferors, the basic requirement of Sec. 4 cannot be said to have been fulfilled. The applications were thus dismissed by the Special Officer. The transferors preferred appeals under the statute to the appellate authority, namely, the Collector. The appellate authority held that neither of the reasons assigned by the Special Officer can be said to be good reason for rejecting the prayer for restoration under the Act. He thought that the transferred land in respect of which restoration has been prayed for 'need not essentially be agricultural for being within the purview of the Act' and the petitioner need not have his residence therein So far as the reason for the transfer is concerned the appellate authority found fault with the Special Officer in accepting the reason as recited in the deed in preference to the one disclosed in his evidence before the Tribunal. Collector thought that the Special Officer had not given any reason for such a finding. The appellate authority further found that there was procedural infirmity when a certificate issued by the S. D, O. was taken into evidence without examining him as to its contents.

5. On a careful consideration of the orders passed by the two Tribunals below, we are of the opinion that the order of the appellate authority is unsustainable as it is based upon a clear misconception of the law on the point. The appellate authority failed to appreciate that the Act under consideration does not profess to reopen all transfers of all properties. It was intended to give relief to agriculturists in respect of distress sales or the like and on the definition clause land has been defined to be limited to agricultural land. Obviously the term 'homestead' when included within the meaning of the term land means the homestead or 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. So far as the procedural irregularity referred to by the appellate auth ority is concerned, he failed to take note of the fact that the certificate of the S. D. O. was not of primary importance because the document of transfer itself recites that the transfer was being made to meet the need of money for the respective businesses of the transferors. If the transfer was for such a purpose, it would certainly not come within the purview of Section 4. When the pur-pose of the transfer was so recited there was no reason for incorporating a false recital and such a clear admission of the transferors as to the purpose for which the transfer was being effected, has not been explained in any other manner. It was, therefore, open to the Special Officer to accept the same in preference to the subsequent interested statement made at the hearing of these applications which had not been otherwise established or corroborated. Therefore, even if the Special Officer relied upon a certificate of the S. D. O. to show that the transferor was a contractor and even if such certificate had not been formally proved, it matters little so far as the final conclusion of the Special Officer is concerned which is clearly supported by the transferors' own admission made in the deeds.

6. Such being the position, we are unable to support the order made by the appellate authority which has been made on a clear misconception of law.

7. These applications, therefore, succeed, The impugned orders passed by the appellate authority being set aside, those of the Special Officer are restored.

8. No order is made as to costs in either of these revisional applications.

B.C. Chakrabarti, J.

9. I agree.


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