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HIGH COURET OF CALCUTTA
Shamsuddin Ahmed & Haridas Dos, JJ.
Smt. Damayanti Maity
vs.
Aswini Kumar Jana,
Civil Revision C.O. No. 1816 of 1989 (Art. 227 of the Constitution)
Decided on : July 27, 1990
LAND REFORMS - Co-sharer in a holding - Amendment to definition of holding - Effect on right of pre-emption under s. 8 of the West Bengal Land Reforms Act, 1955.
Fact of the Case:
Petitioner claimed to be a co-sharer in respect of two plots of land and challenged an order passed by the lower courts dismissing her application under s. 8 of the West Bengal Land Reforms Act, 1955, on the ground that the amendment to the definition of "holding" in the West Bengal Land Holding Revenue Act, 1979, had abolished the concept of co-sharer in a holding.
Finding of the Court:
The Court held that the amendment to the definition of "holding" in the West Bengal Land Holding Revenue Act, 1979, was valid and had the effect of abolishing the concept of co-sharer in a holding. Therefore, the petitioner, who was not a co-sharer in the disputed holding, was not entitled to exercise the right of pre-emption under s. 8 of the West Bengal Land Reforms Act, 1955.
Issues: 1. Whether the amendment to the definition of "holding" in the West Bengal Land Holding Revenue Act, 1979, was valid and had the effect of abolishing the concept of co-sharer in a holding? 2. Whether the petitioner, who was not a co-sharer in the disputed holding, was entitled to exercise the right of pre-emption under s. 8 of the West Bengal Land Reforms Act, 1955?
Ratio Decidendi: 1. The Court held that the amendment to the definition of "holding" in the West Bengal Land Holding Revenue Act, 1979, was valid and had the effect of abolishing the concept of co-sharer in a holding because: - The amendment was made to give effect to the object of the West Bengal Land Holding Revenue Act, 1979, which was to rationalize and improve the system of revenue on land holding in the interest of proper implementation of comprehensive measures for land reforms in the State. - The amendment was clear and unambiguous, and there was no repugnancy or contradiction between the amendment and the provisions of the West Bengal Land Reforms Act, 1955. 2. The Court held that the petitioner, who was not a co-sharer in the disputed holding, was not entitled to exercise the right of pre-emption under s. 8 of the West Bengal Land Reforms Act, 1955, because: - The right of pre-emption under s. 8 of the West Bengal Land Reforms Act, 1955, was only available to co-sharers in a holding. - The amendment to the definition of "holding" in the West Bengal Land Holding Revenue Act, 1979, had abolished the concept of co-sharer in a holding.
Final Decision: The Court dismissed the petitioner's application under s. 8 of the West Bengal Land Reforms Act, 1955.
Shamsuddin Ahmed. J.:
1. In this application under Art. 227 of the Constitution an order passed by the learned Additional Dist Judge, Midnapur in Misc. Appeal no. I of 88 affirming the order passed by the learned Munsif Addl. Court Contai in Judicial Misc. Case no. 28 0f 87 is under challenge. The order concerned involves an application under s. g of the West Bengal Land Reforms Act.
2. The petitioner claimed to be a co-sharer n respect of plot no. 157 of Khatian no. 254 and plot no. 216 of khatian no. 152. According to her deceased husband Chaitannaya Maity was the owner of these two plots. On his death she along with her son Lakshmi Kanta Roy succedded her late husband. Lakshmi Kanta Roy sold his interest in the disputed property to the opposite party by a deed executed on 18.7.82 and registered on 19.7.82 without any notice to her as required under s. 5(4) of the Lands Reforms Act. She further alleged that the transferee opposite party was not a cosharer in respect of the disputed property even though he had purchased some property from her son earlier but in respect of the disputed property the was not a co-sharer. Courts below found that the opposite party is not a co-sharer in respect of the holding which was involved in the proceedings, and also found that on the death of Chaitanaya the petitioner and her son became owners of the disputed property but the courts below dismissed the application under s, 8 of the Land Reforms Act filed by the petitioner solely on the ground that because of amendment in the definition of holding effected by s. 26(1) of the West Bengal Land Holding Revenue Act, there cannot be any co-sharer in respect of the holding as contemplated by the amending defintion. Accordingly, both the courts below dismissed the application.
3. Mr. Amal Das, learned advocate appearing for the petitioners sought our leave to file an amendment application to take up new grounds challenging the vires of s. 26(1)(a) of the West Bengal Land Holding Revenue Act, 1979 so far as it related to the provisions of ss. 8, 9.& 10 of W. B.L R. Act.
4. The expression 'holding' was defined in s. 2(6) of the WBLR Act. Prior to amendment it ran thus-"Holding", means the land or lands held by a raiyat and treated as a unit for assessment of revenue. This definition was amended by s. 26(1)(a) of the W. B.L.H. R. Act, 79 and deleted the latter part of the definition vs. and treated as a unit for assessment of revenue". Accordingly, the present definition of holding means the land or lands held by a raiyat. The courts below took note of this amendment and came to the conclusion that because of change in definition of holding there cannot be a co-sharer in respect of any holding, as holding constitute only the land or lands held by a raiyat. Accordingly, there cannot be any interest in the said holding in respect of any other person and only on this finding of law the courts below had dismissed the application under s. R of the WBLR Act, West Bengal Land Holding Revenue Act, 79 came into force on the 1st day of Baisakh, 1388 BS corresponding to 14th April, 1981. By the provisions of s, 26 (1) this Act amended several provisions of the WBLR Act. As the main dispute raised in this application centres round the provisions of s. 26 of the WBLHR Act, we propose to quote the same as under. S. 26. Amendments and savings (I)-With effect from the date of coming into force of this Act in any district, the following, amendments to the WBLR Act.1955 shall be deemed to have been made-(a) To clause (6) of s. 2, the words "and treated as a unit for assessment of revenue be omitted;
(b) Clause (II) of s. 2 be omitted;
(c) Sub-section (1) of s. II be omitted;
(d) Chapter IV be omitted
Provided that notwithstanding the provisions of sub-sec (1), 1he liability of a raiyat to pay revenue for his holding and collection of such revenue in accordance with the provisions of WBLR Act 1955 shall continue till the revenue in respect of such, holding of a raiy
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