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2004 Supreme(Cal) 328
High Court Of Calcutta
Alok Kumar Basu
SWAPAN KUMAR KAR - Appellant
Versus
SALIL KUMAR DEY - Respondent
C. O. 2179 Of 2003
Decided On : 05/12/2004
S.C.KARNADIKAR
The provisions of the West Bengal Land Reforms Act, 1955 have no application in respect of matters covered by the Urban Land Ceiling Act, 1976.
Headnote:
PRE-EMPTION - URBAN LAND CEILING ACT, 1976 - WEST BENGAL LAND REFORMS ACT, 1955 - SEC. 8 (1) - Whether provisions of the West Bengal Land Reforms Act, 1955 can be applied in respect of matters covered by the Urban Land Ceiling Act, 1976 - Held, no.
Fact of the Case:
Petitioners filed a pre-emption suit under Section 8(1) of the West Bengal Land Reforms Act, 1955, claiming a portion of the disputed land, which was purchased by the opposite parties from the vendor. The Trial Court allowed the claim, but the Additional District Judge, on appeal, set aside the order, holding that the provisions of the West Bengal Land Reforms Act were not applicable to the suit land as it was covered under the Urban Land Ceiling Act, 1976.
Finding of the Court:
The Court held that the provisions of the West Bengal Land Reforms Act, 1955 have no application in respect of matters covered by the Urban Land Ceiling Act, 1976. Therefore, the claim of pre-emption under Section 8(1) of the West Bengal Land Reforms Act was not maintainable.
Issues: Whether the provisions of the West Bengal Land Reforms Act, 1955 can be applied in respect of matters covered by the Urban Land Ceiling Act, 1976.
Ratio Decidendi: The Court relied on the Division Bench judgment of the Calcutta High Court in Paschimbanga Bhumijibi Krishak Samity and Ors. v. State of West Bengal and Ors., wherein it was held that the provisions of the West Bengal Land Reforms Act, 1955 have no application in respect of matters covered by the Urban Land Ceiling Act, 1976.
Final Decision: The Court dismissed the application, holding that the claim of pre-emption under Section 8(1) of the West Bengal Land Reforms Act was not maintainable in view of the provisions of the Urban Land Ceiling Act.
( 1 ) THE judgment of the Court was as follows : the petitioners of L. R. Misc. Case No. 30 of 1997 disposed of by the learned Civil Judge (Junior Division) 6th Court, Howrah have preferred this application under Article 227 challenging the judgment and order dated 18th July, 2003 passed by the learned 3rd Additional District Judge, Howrah in connection with Misc. Appeal No. 160 of 2002 which was preferred against the judgment of the Trial Court.
( 2 ) THE petitioners filed L. R. Misc. Case No. 30 of 1997 for pre-emption of a portion of Dag No. 2123 under Khatian Nos. 1941 and 1942 of Mouza santragachi under Police Station Jagachha in the District of Howrah which was purchased by the opposite party Nos. 1 to 4 from opposite party No. 5 on the ground that petitioners have land adjacent to the suit land.
( 3 ) THE learned Civil Judge (Junior Division), 6th Court, Howrah after considering written objection of the opposite parties and on perusal of evidence adduced by the parties passed order on 6th April, 2002 whereby the claim of pre-emption made by the present petitioners was upheld.
( 4 ) THE opposite parties preferred Misc. Appeal No. 160 of 2002 challenging the order of the Trial Court and the learned Additional District judge, 3rd Court, Howrah by His order dated 18th July, 2003 allowed the misc. Appeal and set aside the order of the Trial Court and hence, the present application by the petitioners.
( 5 ) THE learned Advocate appearing for the petitioners submits with reference to the impugned judgment and order that the learned Additional district Judge rejected the claim of pre-emption on three grounds, first, on the ground that the land in question being covered under the urban Land ceiling and Regulation Act, 1976, no claim of pre-emption in respect of the said land would arise under Section 8 (1) of the West Bengal Land reforms Act and in this regard reliance was placed on the ratio of the decision reported in 1996 W. B. L. R. Calcutta page 242. The second ground of rejection of the claim of pre-emption was that since there was no partition amongst the co-sharers in respect of the disputed plot, the petitioners are not entitled to claim for pre-emption as adjacent land owners. The final ground of rejection is that since the entire plot was transferred, no question of pre-emption would arise.
( 6 ) MR. Banerjee submits that all the grounds disclosed by the learned judge in rejecting the claim of pre-emption are not tenable in law.
( 7 ) MR. Banerjee submits that the learned Judge totally failed to appreciate the impact of Section 3 read with Section 4e, Section 23e and section 23f of the West Bengal Land Reforms Act and all the provisions of those sections taken together would indicate that there appears no legal bar in the application of provision of Section 8 (1) of the West Bengal Land reforms Act in the matter of pre-emption of the suit land. Mr. Banerjee submits that reading of the ratio of decision reported in 1996 W. B. L. R. Calcutta page 242 and its understanding by the learned Judge appears to be totally misconceived since there is nothing in the said decision to indicate that in the case of a learned property being governed under the provisions of Urban Land Ceiling Act, the provisions of West Bengal Land Reforms act would have no application.
( 8 ) MR. Banerjee submits that in C. O. No. 3182 of 1989 he had the occation to make identical submission to suggest that when Urban Land ceiling Act came into existence prior to amendment of the West Bengal land Reforms Act thereby changing the definition of land and the Urban land Ceiling Act being a Central legislation under the provisions of the constitution if any conflict arises between a State Legislation and the central Legislation, the provisions of the Central Legislation would get the precedence and hence, when on the question of ceiling there is both Central legislation and State Legislation in the form of West Bengal Land Reforms
