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Calcutta High Court
A.K.MUKHERJEA,SABYASACHI MUKHARJI,M.M.DUTT
Madan Mohan Ghosh - Appellant
Versus
Sishu Bala Atta - Respondent
Full Bench Reference 1 of 1968 in C.R. No. 674 of 1958; C.R. Nos.2275, 3410, 3764 and 3624 of 1961, 3465 of 1965, 2027 and 2362 of 1967
Decided On : 07/28/1972
The right of pre-emption under Section 26-F of the Bengal Tenancy Act survives the West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of 1954) after Chapter VI thereof comes into force.
Fact of the Case:
The West Bengal Estates Acquisition Act, 1953, came into force on February 12, 1954. Sub-section (1) of Section 4 of the Act provides that the State Government may from time to time by notification declare that with effect from the date mentioned in the notification, all estates and the rights of every intermediary in each such estate situate in any district or part of a district specified in the notification, shall vest in the State free from all encumbrances. The date of vesting as mentioned in the notification which was published, is Baisakh 1, 1362 B.S. corresponding to April 15, 1955. The term 'intermediary' as defined in the Act means a proprietor, tenure-holder, under tenure-holder or any other intermediary above a raiyat or a non-agricultural tenant and includes a service tenure-holder, end in relation to mines and minerals, includes a lessee and a sub-lessee. Under the definition a raiyat was not an intermediary but anybody above a raiyat was an intermediary. Chapter VI contains provisions for acquisition of interests of raiyats and under-raiyats. Section 49 which is the first section of Chapter VI provides, that the provisions of Chapter VI shall come into force on such date and in such district or part of a district as the State Government may, by notification in the Official Gazette, appoint and for this purpose different dates may be appointed for different districts or parts of districts. The consequences of the issue of such a notification under Section 49 are provided for in Section 52 which runs as follows:- "52. Application of Chapters II, III, V and VII to raiyats and under-raivats. On the issue of a notification under Section 49 the provisions of Chanters II, III, V and VII shall, with such modifications as may be necessary, apply mutatis mutandis to raiyats and under-raiyats as if such raiyats end under-raiyats were intermediaries and the land held by them were estates and a person holding under a raiyat or an under-raiyat were a raiyat for the purposes of clauses (c) and (d) of Section 5: Provided that where raiyat or an under-raiyat retains, under Section 6 read with this section, any land comprised in a holding then notwithstanding anything to the contrary contained in sub-section (2) of Section 6, he shall pay,- (a) in cases where he was paying rent for the lands comprised in the holding and held by him immediately before the date of vesting (hereafter in this proviso referred to as the holding lands),- (i) if he retains all the holding lands, the same rent as he was paving therefor immediately before the date of vesting, and (ii) if the land retained by him forms part of the holding lands, such rent as bears the same proportion to the rent which he was paying for the holding lands immediately before the date of vesting as the area of the land retained by him bears to the area of all the holding lands; (b) in cases where he was liable to pay rent but was not paying any rent for the holding lands immediately before the date of vesting on the ground that the rent payable by him therefor was not assessed, such rent as may be assessed, mutatis mutandis in accordance with the provisions of Section 42; (c) in cases where he was liable to pay rent wholly in kind or partly in kind and parity in cash, then, notwithstanding anything contained in clause (c) of Section 5, such rent as may be assessed in accordance with the provisions of Section 40, and (d) in cases where he was liable immediately before the date of vesting to pay for the holding lands a variable cash rent periodically assessed, such rent as may be assessed, mutatis mutandis in accordance with the provisions of S.42."
Finding of the Court:
The right of pre-emption under Section 26-F of the Bengal Tenancy Act survives the West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of 1954) after Chapter VI thereof comes into force.
Issues: Whether the right of pre-emption under Section 26-F of the Bengal Tenancy Act survives the West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of 1954) after Chapter VI thereof comes into force.
Ratio Decidendi: The Court held that the right of pre-emption under Section 26-F of the Bengal Tenancy Act survives the West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of 1954) after Chapter VI thereof comes into force. The Court reasoned that the provisions of Chapter VI of the West Bengal Estates Acquisition Act, 1953, which provide for the acquisition of interests of raiyats and under-raiyats, do not extinguish the right of pre-emption under Section 26-F of the Bengal Tenancy Act. The Court further reasoned that the right of pre-emption under Section 26-F is a personal right that vests in the co-sharer tenant of an occupancy holding, and that this right is not extinguished by the vesting of the interests of raiyats and under-raiyats in the State under Chapter VI of the West Bengal Estates Acquisition Act, 1953.
Final Decision: The Court held that the right of pre-emption under Section 26-F of the Bengal Tenancy Act survives the West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of 1954) after Chapter VI thereof comes into force.
M. M. DUTT, J. :- These are eight out of twelve Revision Cases referred to the Full Bench by a Division Bench consisting of Laik and S.K. Mukherjea, JJ. by their Order of Reference dated April 30, 1968. The point which induced the learned Judges of the Division Bench to refer the Revision Cases to the Full Bench is, whether the right of pre-emption under Section 2G-F of the Bengal Tenancy Act survives the West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of 1954) after Chapter VI thereof comes into force. In all these cases the reference has been made under Chapter VII, Rules 1, 2 and 4 of the Appellate Side Rules and consequently the Full Bench has to dispose of these Revision Cases also on merits. The point is involved in all these cases, but some of these involve other points which arise out of their respective facts and circumstances.
2. Laik and S.K. Mukherjea, JJ. have differed from two earlier Division Bench decisions of B.N. Banerjee and D. Basu, JJ. - one in the case of Abharan Chandra Saha v. Sanat Kumar Sen, 68 Cal WN 574 : (AIR 1964 Cal 460) and the other in Jyotish Chandra Das v. Dhananjay Bag, (1964) 68 Cal WN 1055. In these two decisions B.N. Banerjee and D. Basu, JJ. have held that the right of pre-emption under Section 26-F survived after the passing of the West Bengal Estates Acquisition Act, 1953.
3. Section 26-F provides that except in the case of a transfer to a co-sharer in the tenancy whose existing interest has accrued otherwise than by purchase, one or more co-sharer tenants of the holding, a portion or share of which is transferred, may within four months of the service of the notice under Section 26-C, apply to the Court for the said portion or share to be transferred to himself or themselves. This section confers on a co-sharer tenant of an occupancy holding, a right to compel another co-sharer tenant to sell his share in the holding to him instead of selling it to a stranger. The use of the term 'co-sharer' in S.26-F contemplates that the holding must be under the ownership of more than one person. The holding must be an occupancy holding, that is, it must be the holding of raiyats having occupancy rights. So long as division of the holding does not take place in accordance with Section 88 of the Bengal Tenancy Act, the holding remains a joint holding and each co-sharer will be entitled to pre-empt in case of transfer of a share or portion of the holding by a co-sharer to a stranger. The question is, whether after the coming into force of Chapter VI of the West Bengal Estates Acquisition Act, co-sharership is destroyed, or in other words, whether new tenancies are created by virtue of the provisions of the West Bengal Estates Acquisition Act in respect of each co-sharer.
4. The West Bengal Estates Acquisition Act, 1953, came into force on February 12, 1954. Sub-section (1) of Section 4 of the Act provides that the State Government may from time to time by notification declare that with effect from the date mentioned in the notification, all estates and the rights of every intermediary in each such estate situate in any district or part of a district specified in the notification, shall vest in the State free from all encumbrances. The date of vesting as mentioned in the notification which was published, is Baisakh 1, 1362 B.S. corresponding to April 15, 1955. The term 'intermediary' as defined in the Act means a proprietor, tenure-holder, under tenure-holder or any other intermediary above a raiyat or a non-agricultural tenant and includes a service tenure-holder, end in relation to mines and minerals, includes a lessee and a sub-lessee. Under the definition a raiyat was not an intermediary but anybody above a raiyat was an intermediary. Chapter VI contains provisions for acquisition of interests of raiyats and under-raiyats. Section 49 which is the first section of Chapter VI provides, that the provisions of Chapter VI shall come into force on such date and in such district or par
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