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2010 Supreme(Cal) 172
High Court of Calcutta
Jyotirmay Bhattacharya, J.
Ramala Chowdhury – Appellant
Versus
Suman Ghosh – Respondent
C.O. No. 1801 of 2008 WITH C.A.N. No. 553 of 2009
Decided On: Feb 19, 2010
Advocate Appeared:
S.P.Roychowdhury, S.Roy Karmakar, Nani Gopal Chowdhury, Sanjay Bhattacharya, Bidyut Kumar Banerjee, Kajal Kumar Roy.
The provisions of the West Bengal Land Reforms Act are applicable to the whole of West Bengal excepting the excluded areas mentioned therein, and the Chandannagore Urban Agglomeration does not fall within the excluded areas.
Headnote:
PRE-EMPTION - WEST BENGAL LAND REFORMS ACT, 1955 - SECTIONS 8, 9, 10, 14J - URBAN LAND (CEILING AND REGULATION) ACT, 1976 - APPLICABILITY - CHANDANNAGORE URBAN AGGLOMERATION - HELD, PROVISIONS OF THE WEST BENGAL LAND REFORMS ACT ARE APPLICABLE TO THE WHOLE OF WEST BENGAL EXCEPTING THE EXCLUDED AREAS MENTIONED THEREIN - CHANDANNAGORE URBAN AGGLOMERATION DOES NOT FALL WITHIN THE EXCLUDED AREAS - THE PROVISIONS RELATING TO PRE-EMPTION UNDER THE LAND REFORMS ACT ARE APPLICABLE IN RESPECT OF A TRANSFER OF AN URBAN VACANT LAND WITHIN HOWRAH MUNICIPALITY.
Fact of the Case:
Petitioner filed an application under Section 8 of the West Bengal Land Reforms Act, 1955 for exercising his right of pre-emption in respect of transfer of the case land by raiyat/transferor in favour of the pre-emptee/purchaser on the ground of vicinage. The pre-emptee contested the said pre-emption proceeding by filing objection challenging the maintainability of the said application on the ground of bar of limitation as well as on the ground of its prematurity as the registration of the rectification deed was not completed as per Section 61 of the Registration Act at the time of filing of the said application for pre-emption. The learned trial Judge allowed the pre-emptor's application for pre-emption on contest holding that the application is maintainable and the pre-emptor is entitled to exercise his right of pre-emption in respect of the said transfer on the ground of visinage. The pre-emptee challenged the said order in appeal before the learned Appellate Forum. The learned Appeal Court dismissed the said pre-emption proceeding by holding inter alia that the application for pre-emption Is not maintainable as the case land is situated within Chandannagore Urban Agglomeration wherein Urban Land (Ceiling and Regulation) Act is applicable. The learned Appeal Court was of the view that the West Bengal Land Reforms Act is not applicable in the area where Urban Land (Ceiling and Regulation) Act is applicable. Hence, the instant revisional application has been filed by the pre-emptor/ petitioner herein.
Finding of the Court:
The court held that the judgment of the learned Appeal Court cannot be sustained. Accordingly, the judgment of the Appeal Court stands set aside. The learned Appeal Court is, thus, directed to re-hear the said appeal for fresh decision on the merit of the said appeal. It is, however, made clear that the maintainability of the said application because of the situation of the case land within the Chandannagore Urban Agglomeration cannot be raised before the learned Appeal Court as the said issue is decided finally herein.
Issues: Whether the provisions of the West Bengal Land Reforms Act are applicable to the whole of West Bengal excepting the excluded areas mentioned therein. Whether the Chandannagore Urban Agglomeration falls within the excluded areas as per Section 1 (2) of the West Bengal Land Reforms Act, 1955. Whether the provisions relating to pre-emption under the Land Reforms Act are applicable in respect of a transfer of an Urban vacant land within Howrah Municipality.
Ratio Decidendi: The provisions contained in the West Bengal Land Reforms Act are applicable to the whole of West Bengal excepting the excluded area as mentioned therein. The Chandannagore Urban Agglomeration does not fall within the excluded area of as per Section 1 (2) of the West Bengal Land Reforms Act, 1955. The provisions relating to pre-emption under the Land Reforms Act are applicable in respect of a transfer of an Urban vacant land within Howrah Municipality.
Final Decision: The revisional application is disposed of with the above observation. The learned Appeal Court is directed to re-hear the said appeal for fresh decision on the merit of the said appeal. It is, however, made clear that the maintainability of the said application because of the situation of the case land within the Chandannagore Urban Agglomeration cannot be raised before the learned Appeal Court as the said issue is decided finally herein.
1. THIS application under Article 227 of the Constitution of India is directed against the judgment and order dated 6th May, 2008 passed by the learned Additional District Judge-cum-Judge, Special Court (E.C. Act), Hooghly at Chinsurah in Misc. Appeal No. 140 of 2003 reversing the judgment and order dated 16.12.03 passed by the learned Civil Judge (Junior Division), 1st Court at Chandannagore in pre-emption Misc. Case No.36 of 1995, at the instance of the pre-emptors/petitioners.
2. HEARD Mr. Roy Chowdhury, appearing for the pre-emptor/petitioner and Mr. Banerjee, learned Senior Counsel appearing for the opposite party/pre-emptee. Considered the materials-on-record including the order impugned.
3. LET me now discuss the merit of this revisional application in the facts of the instant case.
4. THE pre-emptor/petitioner filed an application under Section 8 of the West Bengal Land Reforms Act, 1955 for exercising his right of pre-emption in respect of transfer of the case land by raiyat/transferor in favour of the pre-emptee/purchaser on the ground of vicinage. Admittedly, the case land is situated within the Urban Agglomeration of Chandannagore wherein the Urban Land (Ceiling and Regulation) Act is in operation.
The pre-emptee/opposite party contested the said pre-emption proceeding by filing objection challenging the maintainability of the said application on the ground of bar of limitation as well as on the ground of its prematurity as the registration of the rectification deed was not completed as per Section 61 of the Registration Act at the time of filing of the said application for pre-emption. The pre-emptee also opposed the petitioner's prayer for pre-emption on various other grounds. Since those grounds are not very much material for the present purpose, those grounds are not mentioned herein elaborately.
5. THE learned trial Judge was pleased to allow the pre-emptor's application for pre-emption on contest holding that the application is maintainable and the pre-emptor is entitled to exercise his right of pre-emption in respect of the said transfer on the ground of visinage.
6. THE pre-emptee was aggrieved by the said order. Hence, the pre-emptee challenged the said order in appeal before the learned Appellate Forum. THE learned Appeal Court though held that the application is not barred by limitation and is also not a defective one on account of its alleged pre-maturity, but dismissed the said, pre-emption proceeding by holding inter alia that the application for pre-emption Is not maintainable as the case land is situated within Chandannagore Urban Agglomeration wherein Urban Land (Ceiling and Regulation) Act is applicable. THE learned Appeal Court was of the view that the West Bengal Land Reforms Act is not applicable in the area where Urban Land (Ceiling and Regulation) Act is applicable. In fact, the learned Appeal Court formed the said opinion by following a Single Bench decision of this Hon'ble Court in the case of Swapan Kumar Kar and Ors. v. Salil Kumar Dey and Ors., reported in 2004 (2) Cal LJ 273 wherein an identical view was expressed by a learned Single Judge of this Court by relying upon a Division Bench decision of this Hon'ble Court in the case of Paschim Banga Krisak Samiti v. State of West Bengal, reported in 1996 (2) Cal LJ 285, in an identical situation.
Thus, the said appeal was allowed and the order allowing pre-emption passed by the learned trial Judge was set aside in the said appeal.
7. HENCE, the instant revisional application has been filed by the pre-emptor/ petitioner herein.
8. THUS, it is crystal clear that the fate of this revisional application is dependent upon the legality of the judgment passed by the learned Single Judge of this Hon'ble Court in the case of Swapan Kumar Kar and Ors. v. Salil Kumar Dey and Ors., (supra) relying on which the impugned order was passed by the learned Appeal Court.
In fact, an identical view with regard to applicability of West Bengal Land Refo
