Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2002 Supreme(Cal) 586

HIGH COURT OF CALCUTTA
Tarun Chatterjee, M.H.S. Ansari & Asit Kumar Bisi, JJ.
Sk. Sarafat Ali & Ors.
Vs
Hossain Ali Molla & Ors.
Mrityunjoy Mondal
Vs
Sona Das
Ignatiuas Gomes
Vs
Swapna Rani Paik
Sahera Bibi
Vs
Nazimuddin Khan & Ors.
Arati Das
Vs
Somnath Das
Siddheswar Hazra Chowdhury
Vs
Chapal Kr. Samanta
Sandhya Roy
Vs
Dilip Kr. Patra & Ors. (Assigned)
C.O. No. 2041 of 1995 with C.O. No.8 of 1991 with C.O. Nos. 148-150 of 1991 with C.O. No. 586 of 1997 with C.O. No. 722 of 1993 with C.O. No. 1774 of 1994 with C.O. No. 1424 of 1995 with C.O. 918 of 1994
Decided on : September 4, 2002

Advocates Appeared:
Bhaskar Ghosh, Bimal Kumar Chatterjee for the appellants in C.O. No. 2041 of 1995;
M.M. Verma, Neelam Verma, Poonam Verma for the respondents in C.O. No. 2041 of 1995;
Asit Kumar Bhattacharyya(3) for the appellants in C. O. No.8 of 1991;
Asit Kumar Bhattacharyya(3) for the appellants in C. O. Nos. 148-150 of 1991:
Tarit Kumar Bhattacharyya for the opposite party in C. O. No. 586 of 1997;
Asit Kumar Bhattacharyya(3) for the appellants in C. O. No. 722 of 1993;
B. Ganguly, G. Ghosh for the opposite party in C. O. No. 722 of 1993;
S. S. Arefin for the petitioner C. O. No. 1424 of 1995;
M. Ahmed, A. B. Ghosh for the opposite party in C. O. No. 1424 of 1995;
M. Ahmed. A. B. Ghosh, S. Roychowdhury for the opposite party in C. O. No. 918 of 1994.

The amendment of the definition of "holding" in section 2(6) of the West Bengal Land Reforms Act, 1955, by virtue of section 26(1)(a) of the West Bengal Land Holding Revenue Act, 1979, had the effect of doing away with the concept of "holding" of a raiyat totally. The subsequent amendment of section 2(6) and section 8 of the Act by the West Bengal Land Reforms (Amendment) Act, 2000, with retrospective effect from 7th August, 1969, had the effect of reintroducing the concept of "holding" by substituting the word "co-sharer of a raiyat in a plot of land".

Headnote:
LAND REFORMS - RIGHT OF PRE-EMPTION - CO-SHARER IN A PORTION OR SHARE OF A HOLDING - AMENDMENT OF DEFINITION OF "HOLDING" - EFFECT - WEST BENGAL LAND REFORMS ACT, 1955, SECTIONS 2(6), 8 - WEST BENGAL LAND HOLDING REVENUE ACT, 1979, SECTION 26(1)(A) - WEST BENGAL LAND REFORMS (AMENDMENT) ACT, 2000, SECTIONS 1(2), 2(6), 8.
Fact of the Case:

The issue before the court was whether a co-sharer in a portion or share of a holding of a raiyat had the right of pre-emption under section 8 of the West Bengal Land Reforms Act, 1955, after the amendment of the definition of "holding" in section 2(6) of the Act by virtue of section 26(1)(a) of the West Bengal Land Holding Revenue Act, 1979.
Finding of the Court:

The court held that the amendment of the definition of "holding" in section 2(6) of the Act by virtue of section 26(1)(a) of the West Bengal Land Holding Revenue Act, 1979, had the effect of doing away with the concept of "holding" of a raiyat totally. The court further held that the subsequent amendment of section 2(6) and section 8 of the Act by the West Bengal Land Reforms (Amendment) Act, 2000, with retrospective effect from 7th August, 1969, had the effect of reintroducing the concept of "holding" by substituting the word "co-sharer of a raiyat in a plot of land".
Issues: 1. Whether the amendment of the definition of "holding" in section 2(6) of the West Bengal Land Reforms Act, 1955, by virtue of section 26(1)(a) of the West Bengal Land Holding Revenue Act, 1979, had the effect of taking away the right of pre-emption conferred upon a co-sharer in a portion or share of a holding of a raiyat under section 8 of the Act. 2. Whether the subsequent amendment of section 2(6) and section 8 of the Act by the West Bengal Land Reforms (Amendment) Act, 2000, with retrospective effect from 7th August, 1969, had the effect of reintroducing the concept of "holding" by substituting the word "co-sharer of a raiyat in a plot of land".
Ratio Decidendi: 1. The court held that the amendment of the definition of "holding" in section 2(6) of the Act by virtue of section 26(1)(a) of the West Bengal Land Holding Revenue Act, 1979, had the effect of doing away with the concept of "holding" of a raiyat totally. The court reasoned that the expression "if a portion or share of a holding of a raiyat is transferred to any person other than a co-sharer in the holding" would be meaningless in view of the amended definition of "holding". 2. The court further held that the subsequent amendment of section 2(6) and section 8 of the Act by the West Bengal Land Reforms (Amendment) Act, 2000, with retrospective effect from 7th August, 1969, had the effect of reintroducing the concept of "holding" by substituting the word "co-sharer of a raiyat in a plot of land". The court reasoned that the legislature intended to do away with the unintended anomalies that had arisen from the existing definition of "holding" and to reintroduce chapter IV of the Act by repealing the West Bengal Land Holding Revenue Act, 1979.
Final Decision: The court held that the amendment of the definition of "holding" in section 2(6) of the Act by virtue of section 26(1)(a) of the West Bengal Land Holding Revenue Act, 1979, had the effect of doing away with the concept of "holding" of a raiyat totally. The court further held that the subsequent amendment of section 2(6) and section 8 of the Act by the West Bengal Land Reforms (Amendment) Act, 2000, with retrospective effect from 7th August, 1969, had the effect of reintroducing the concept of "holding" by substituting the word "co-sharer of a raiyat in a plot of land". Accordingly, the court held that the reference cases were disposed of and the Revisional Applications were to be placed before the appropriate bench for consideration on merits.

JUDGMENT

Tarun Chatterjee, J.: These are ten Revision Cases referred to this Special Bench by the Hon'ble Chief Justice of this Court. The point which induced a Division Bench of this Court to refer to this Bench is whether a substantive right conferred upon a co-sharer in a portion or share of a holding of a raiyat to exercise the right of pre-emption had been taken away by deletion of the words 'and treated as a unit for assessment of revenue' from the definition of "holding" in section 2 of sub-section (6) of the West Bengal Land Reforms Act after the words 'means the land held by a raiyat'. On this question a Division Bench of this Court in the case of Damayanti Maity vs. Aswini Kumar Jana, 1990(2) CLJ 378, held that in view of deletion of the words 'and treated as a unit for assessment of revenue' an application by a co-sharer of such a holding was no longer maintainable in law. This question again cropped up before another Division Bench of this Court, which however, expressed its dissent and directed that the matters appearing before the said Division Bench on the aforesaid question, be placed before the Hon'ble Chief Justice for constituting a larger Bench to decide the question as posed hereinearlier. Accordingly, this Special Bench has been constituted by the Hon'ble Chief Justice for decision on the aforesaid question.

2. The question, therefore, needs to be decided in these reference cases is whether in view of the deletion of the word 'and treated as a unit for assessment of revenue' in the definition of "holding" in section 2(6) of the West Bengal Land Reforms Act, 1955 (in short "the Act") by virtue of section 26(1)(a) of the West Bengal Land Holding Revenue Act, 1979 an application for pre-emption filed at the instance of a pre-emptor on the ground that he is a co-sharer of a portion or a share of a holding which is transferred to any other person other than a co-sharer of a raiyat of the said holding was, maintainable in law or not under section 8 of the Act.

3. In our view, the question that has been referred by the Hon'ble Chief Justice as noted hereinearlier, need not be gone into by us at all in view of the subsequent amendments made in section 2(6) and section 8 of the Act with effect from 7th August, 1969. For the purpose of coming to this conclusion, as noted hereinearlier, it is now necessary to consider the legislative history of the word "holding" as in section 2(6) of the Act and section 8 of the Act which conferred power on a co-sharer to apply for pre-emption if a share or a portion of a "holding" is transferred, to any person other than a co-sharer in the holding. Section 2(6) of this Act defined "holding". Originally "holding" under this Act was defined as the land or lands held by a raiyat and treated as a unit for assessment of revenue. Under section 8 of the Act, a co-sharer of a holding was conferred power to apply for pre-emption of the land when a portion of share of the holding of a raiyat was transferred to any other person other than a co-sharer in the holding. Originally section 8 of the Act read as under:-

"If a portion or share of a holding of a raiyat is transferred to any person other than a co-sharer in the holding, any co-sharer raiyat of the holding may, within three months of the service of the notice given under sub-section (5) of section 5, or any raiyat possessing land adjoining such holding, may, within four months of the date of such transfer, apply to the Munsif having territorial jurisdiction for transfer of the said portion or share of the holding to him, subject to limit mentioned in section 14(M) on deposit of the consideration money together with a further sum of 10 per cent of that amount:

Provided that if a co-sharer raiyat and a raiyat possessing land adjoining such holding both apply for such transfer, the former shall have the prior right to have a such portion or share of the holding transferred to him, and in such a case, the deposit made by the latter shall be ref

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Judicial Analysis

2002 Supreme(Cal) 586

Cases Referred (1)

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