The definition of 'land' in the WBLR Act, including the scope of pre-emption under Section 8, is subject to judicial interpretation and the applicability of relevant case law must be considered in light of the specific facts and circumstances of each case.

Prasenjit Mandal, J.

This application is directed against the Order dated June 25, 2008 passed by the learned Additional District Judge, 1st Court, Bankura in Misc. Appeal No.11 of 2006 thereby reversing the order being No.34 dated April 28, 2006 passed by the learned Civil Judge (Junior Division), 2nd Court, Bankura in Misc. Case No.5 of 2003 under Section 8 of the W.B.L.R. Act, 1955.

2. The respondent / petitioner herein instituted a proceeding being Misc. Case No.5 of 2003 under Section 8 of the W.B.L.R. Act, 1955 against the appellant / opposite party herein. The opposite party contested the said misc. case and upon hearing both the sides, the learned Trial Judge allowed the application Section 8 of the W.B.L.R. Act on contests. Being aggrieved by such order, the opposite party preferred an appeal being Misc. Appeal No.11 of 2006. That appeal was allowed on contest holding that the misc. case was not maintainable and as such, the said misc. case was dismissed on contests without any costs. Being aggrieved, the respondent / petitioner herein has preferred this application.

3. Now, the question is whether the impugned order should be sustained.

4. Upon hearing the learned Advocate for the petitioner, I find that the misc. case under Section 8 of the W.B.L.R. Act was allowed by the learned Trial Judge holding that the definition of land had been changed. Now, as per definition of land under Section 2(7) of the W.B.L.R. Act, land includes every kind of land and as such, the land in case being a tank will come under the definition of land. The learned Trial Judge has held that the petitioner has adjacent land and as such, he is entitled to get an order of pre-emption under Section 8 of the W.B.L.R. Act when the land in case had been transferred to a stranger purchaser. Accordingly, the application was allowed.

5. The Appellate Court relying on the decision of Paschimbanga Bhumijibi Krishak Samiti & ors. v. State of West Bengal & ors. reported in 1996(2) CLJ 285 held that since, the definition of ‘land’ had been declared ultra vires by the decision of the said case by a Division Bench of this Court, the tank could not come under the definition of land and so, old definition of land which means agricultural land should only be considered in case of preemption under Section 8 of the W.B.L.R. Act and as such, the appeal was not maintainable. The misc. case was not also maintainable and so, the order of dismissal had been passed.

6. The Lower Appellate Court also observed that the definition of land as made in Section 2(7) or 3A(3) of the W.B.L.R. Act, 1981 and 1986 had been declared ultra vires in the said Division Bench decision. Having been declared ultra vires, the old definition of land which means for agricultural land other than tea garden, but includes homestead, but does not include a tank should be accepted. Accordingly, the misc. case is not maintainable.

7. While commenting on such observations passed by the learned Lower Appellate Court, Mr. Kushal Chatterjee, learned Advocate appearing for the petitioner has contended that the pre-emption was sought for on the ground of vicinity but the Lower Appellate Court did not consider that ground at all and there is no discussion whether the petitioner has any land adjoining tank in case. The decision of the Division Bench has been stayed before the Apex Court and as such, the said decision should not be taken into consideration.

8. Mr. Chatterjee has next contended that since there is no discussion at all on the ground of pre-emption, the matter should be remanded to the Lower Appellate Court for decision afresh.

9. Mr. Chatterjee has also submitted that the decision of a case will be bound in other cases provided the facts and circumstances are similar but in the instant case, the learned Lower Appellate Court has travelled beyond his limitation and he has considered the aspect of stay of the order of the Division Bench in details which was not and could not be a subj