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1985 Supreme(Cal) 241
High Court Of Calcutta
CHITTATOSH MUKHERJEE, SHAMSUDDIN AHMED
SUKHAMOY BAJ - Appellant
Versus
NEMAI MONDAL - Respondent
C. O. 2639 Of 1983
Decided On : 06/17/1985
TARUN CHATTEJEE
The character of tenancies created by operation of the provisions of Section 6(1) of the West Bengal Estates Acquisition Act read with Rule 4 of the West Bengal Estates Acquisition Rules would depend upon the nature of the user of particular land at the date of vesting.
Headnote:
WEST BENGAL NON-AGRICULTURAL TENANCY ACT, 1949 - SECTION 24 - SECTION 6(1) OF THE WEST BENGAL ESTATES ACQUISITION ACT - WHETHER A TANK IS AN AGRICULTURAL OR NON-AGRICULTURAL HOLDING - WHETHER PREEMPTION APPLICATION UNDER SECTION 24 OF THE WEST BENGAL NON-AGRICULTURAL TENANCY ACT IS MAINTAINABLE.
Fact of the Case:
A preemption application was filed under Section 24 of the West Bengal Non-agricultural Tenancy Act, 1949 for preempting the transfer of a fractional interest in a tank. The dispute arose as to whether the tank was an agricultural or non-agricultural holding and whether the preemption application was maintainable.
Finding of the Court:
The High Court held that the character of tenancies created by operation of the provisions of Section 6(1) of the West Bengal Estates Acquisition Act read with Rule 4 of the West Bengal Estates Acquisition Rules would depend upon the nature of the user of particular land at the date of vesting. If the land was being ordinarily used for non-agricultural purposes, the intermediary, including raiyat or under-raiyat, upon retaining the same would be deemed to be a non-agricultural tenant. Similarly, if the land was being ordinarily used for purposes of agriculture, the intermediary, including raiyat or under-raiyat, would be deemed to be a raiyat in respect of the said land.
Issues: 1. Whether the disputed tank was an agricultural or non-agricultural holding? 2. Whether the preemption application under Section 24 of the West Bengal Non-agricultural Tenancy Act, 1949 was maintainable?
Ratio Decidendi: The High Court held that the legal position would be otherwise if before vesting the holding comprising the disputed tank was non-agricultural one and the co-sharer tenants were non-agriculture tenants and not raiyats or under-raiyats. Non-agricultural tenants were neither intermediaries nor deemed to be intermediaries within the meaning of the West Bengal Estates Acquisition Act, 1953 and, therefore, there could be no question of vesting of interests of non-agricultural tenants or of exercising their option of retaining the said lands.
Final Decision: The High Court allowed the application in part, set aside the order of both the trial court and the lower appellate court, and remitted the case back to the trial court for fresh disposal in accordance with law and in the light of the observations contained in the judgment.
( 1 ) THE Revisional Application arises out of a proceeding under S. 24 of the West Bengal Non-agricultural Tenancy Act, 1949 for pre-empting transfer of a fractional interest in a tank measuring 14. 48 acres in Plot No. 397, Mouza Plassey, P. S. Majia, Dist. Birbhum. Both in the Cadastral Survey Records and also in the Revisional Survey Settlement Records the status of the co-sharer tenants of the said tank which was described as Ram Dhanger Pukur was recorded as 'raiyati Sthitiban'. The principal point in the case was whether the said tank recorded in Plot No. 397 in mouza Plassey, P. S. Mejia, Dist. Birbhum was a non-agricultural or an agricultural holding and whether the preemption application under S. 2,4 of the West Bengal Non-agricultural Tenancy Act, 1949 was maintainable in law.
( 2 ) ON 7th Nov. 1977 opposite parties 12 to 16 of the application under S. 24 of the West Bengal Non-agricultural Tenancy Act, 1949 purported to transfer 6 annas 10 gondas share in the aforesaid Plot No. 397 in favour of 13 purchasers including the petitioner of this Revisional Application. Out of the said purchasers, Rabilochan Pramanik and Mibaran Ghosh were already recorded as co-sharers of the said plot and, therefore, the preemptors after excluding their 2/13 share prayed for preemption under S. 24 of the said Act in respect of the remaining 11/13 share of the rest of the purchasers, There was a compromise between the preemptors and the purchasers opposite parties 1, 5 and 11 of the pre-empt ion application and as between the said set of parties the case was disposed of in terms of settlement. The present petitioners contested the preemption case, inter alia, claiming that the disputed tank was an agricultural land and therefore the preemption proceeding under S. 24 of the West Bengal Non-agricultural Tenancy Act, 1949 was not maintainable.
( 3 ) THE learned Munsif, 2nd Court, Bankura, inter alia, held that the disputed property was a non-agricultural land and the present petitioners were stranger purchasers and accordingly he allowed the preemption application under S. 24 of the West Bengal Non-agricultural Tenancy Act. The learned Subordinate Judge, Additional Court, Bankura dismissed the appeal preferred by the present petitioner against the said order of the learned Munsif. Thereafter, they have filed the present Revisional Application which has been heard as a contested one in the presence of the contesting opposite parties to the Rule.
( 4 ) MR. Saktinath Mukherjee, learned advocate for the petitioners, has submitted that both the learned Munsif and the learned Subordinate Judge committed errors of jurisdiction by not considering the statutory presumption attaching to the C. S. and R. S. Records which showed the status of the recorded tenants as 'raiyati Sthitiban'. According to Mr. Mukherjee, the learned Munsif and the learned Subordinate Judge failed to appreciate the import of the decisions of this Court in the case of Mishri Show v. Belur Nikunjamoyee Gadar Institution (1978) 1 Cal LJ 532, Eyachhin Ali Naskar v. Golap Gazi (1979) 83 Cal WN 87 and Badal Chandra Das v. Kinkar Chandra Das (1983) 87 Cal WN 543. Mr. Mukherjee has submitted that before the vesting of intermediary interests under the West Bengal Estates Acquisition Act it was settled law that if the lease was governed by the provisions of the Bengal Tenancy Act then sub-leases of portions of properties included in the main lease would be deemed to be agricultural leases. The nature of the original tenancy and not the character of the parcel included in the sub-tenancy would determine whether the sub-tenancy was to be governed by the Bengal Tenancy or the T. P. Act vide Baburam Roy v. Mohendra Nath Samanta (1904) 8 Cal WN 454, Nirshi Dhobin v. Dr. Sudhir Kumar Mukherjee, AIR 1969 SC 864. Mr. Mukherjee's contention is that the persons recorded in the C. S. Records as co-sharer-tenants of the disputed tank were 'raiyati Sthitiban' tenants an
