The definition of "land" in section 2 (7) of the West Bengal Land Reforms Act, 1955, includes homestead but does not include tank. However, a tank annexed or appertained to the dwelling house of a raiyat is an agricultural land.

1. THIS writ application arises out of a proceeding under section 14t read with section 14m of the west Bengal Land Reforms Act, 1955 for determining the extent of the petitioner's land which is to vest in the State. The Revenue Officer, Settlement 'b' camp, Midnapore by his order dated 4th September, 1979 determined that the petitioner was entitled to retain 12-36 acres of land and that his remaining lands would vest in the State. In calculating the extent of land which the petitioner was entitled to retain, the Revenue Officer had considered that all his lands including his homestead were situated within irrigated area. Both the petitioner's homestead and the tank in Plot No. 486, Khatian No. 252, mouza Kamararah, are situated within limits of the Midnapore Municipality. Other tanks owned by the petitioner have been, however, treated as non-agricultural lands.

2. BEING aggrieved thereby the petitioner preferred Revenue Appeal No. 67-L. R. of 1979. The Additional District magistrate Midnapore by his order dated 22nd June 1981 rejected the said appeal holding inter-alia that the tank in Plot No. 486 Khatian No. 252 mouza Kamararah forms part of the petitioner's homestead and, therefore, the said tank has been correctly, treated as agricultural land. The learned Additional District magistrate, Midnapore held that according to section 2 (7) read with explanation thereunder of the West Bengal Land Reforms Act a tank is not agricultural land, unless it forms part of homestead land.

Mr. Puspendu Bikash Sahoo, learned advocate for the petitioner, has inter alia submitted that both the Revenue Officer and the Additional District Magistrate, Midnapore had committed errors of jurisdiction by holding that the aforesaid tank in Plot No. 486., Khatian no. 252 was an agricultural land only on the ground that the same was adjacent to the petitioner's homestead. According to Mr. Sahoo after the definition of the expression "land" in, section 2 (7) of the West Bengal Land Reforms Act was,, amended by the West Bengal Act, XII of 1972, agricultural lands no longer include tank. Mr. Sahoo has submitted that, the petitioner has only 7 annas 3 gondas. 1 kara share in the said tank in Plot No. 486 which was recorded in the R. S. Khatian as non-agricultural land- "dakhalkar". There was no evidence on record regarding- the status of the remaining co-sharers of the said tank. Mr. Sahoo further submitted that the petitioner's homestead and the aforesaid tank both of which were situated within the Midnapore Municipality could not be treated as within irrigated area for the purpose of determining the "ceiling area" applicable to the petitioner.

3. MR. Gupta, learned Additional Advocate-General, has contended that the combined effect of definition of "land" given in section 2 (7) read with the explanation thereunder of the West Bengal Land Reforms Act was that homestead of the raiyat including tank forming part of such homestead would be agricultural land. Mr. Gupta has submitted' that even after the West Bengal Act XII of 1972 had amended the definition of the expression "land" given in section 2 (7) of the West Bengal Land Reforms act a tank forming part of a homestead still continues to be an agricultural land. Mr. Gupta has further contended that the petitioner's homestead including the aforesaid tank are situated within the irrigated area specified in a State Government notification published in the official gazette and, therefore, the Revenue Authorities rightly treated that the petitioner's lands were situated within an irrigated area.

4. IN this writ application the main question is whether the tank in Plot No. 486, Khatian No. 252 mouza Kamararah is an agricultural land. In order to decide the said question, it would be also necessary to ascertain whether the said tank is annexed to or' Is' appertaining" to die dwelling house of a raiyat.'

Since the decision in Baburam Roy's case in 8 C. W. N. 454, it lias been settled law that in order t