Swapan Kumar Kar And Ors. vs Salil Kumar Dey And Ors. on 12 May, 2004

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Calcutta High Court
Swapan Kumar Kar And Ors. vs Salil Kumar Dey And Ors. on 12 May, 2004
Equivalent citations: 2004 (4) CHN 506
Author: A K Basu
Bench: A K Basu


JUDGMENT

Alok Kumar Basu, J.

1. The petitioners of L.R. Misc. Case No. 30 of 1997 disposed of by the learned Civil Judge (Junior Division), 6th Court, Howrah have preferred this application under Article 227 challenging the judgment and order dated 18lh July, 2003 passed by the learned 3rd Additional District Judge, Howrah in connection with Misc. Appeal No. 160 of 2002 which was preferred against the judgment of the Trial Court.

2. The petitioners filed L.R. Misc. Case No. 30 of 1997 for pre-emption of a portion of Dag No. 2123 under Khatian Nos. 1941 and 1942 of Mouza Santragachi under Police Station Jagachha in the district of Howrah which was purchased by the opposite party Nos. 1 to 4 from opposite party No. 5 on the ground that petitioners have land adjacent to the suit land.

3. The learned Civil Judge (Junior Division), 6th Court, Howrah after considering written objection of the opposite parties and on perusal of evidence adduced by the parties passed order on 6th April, 2002 whereby the claim of pre-emption made by the present petitioners was upheld.

4. The opposite parties preferred Misc. Appeal No. 160 of 2002 challenging the order of the Trial Court and the learned Additional District Judge, 3rd Court, Howrah by His order dated 18th July, 2003 allowed the misc. appeal and set aside the order of the Trial Court and hence, the present application by the petitioners.

5. The learned Advocate appearing for the petitioners submits with reference to the impugned judgment and order that the learned Additional District Judge rejected the claim of pre-emption on three grounds, first, on the ground that the land in question being covered under the Urban Land (Ceiling and Regulation) Act, 1976, no claim of pre-emption in respect of the said land would arise under section 8(1) of the West Bengal Land Reforms Act and in this regard reliance was placed on the ratio of the decision reported in 1996 W.B.L.R. Calcutta page 242. The second ground of rejection of the claim of pre-emption was that since there was no partition amongst the co-sharers in respect of the disputed plot, the petitioners are not entitled to claim for pre-emption as adjacent land owners. The final ground of rejection is that since the entire plot was transferred, no question of pre-emption would arise.

6. Mr. Banerjee submits that all the grounds disclosed by the learned Judge in rejecting the claim of pre-emption are not tenable in law.

7. Mr. Banerjee submits that the learned Judge totally failed to appreciate the impact of section 3 read with section 4E, section 23E and section 23P of the West Bengal Land Reforms Act and all the provisions of those sections taken together would indicate that there appears no legal bar in the application of provision of section 8(1) of the West Bengal Land Reforms Act in the matter of pre-emption of the suit land. Mr. Banerjee submits that reading of the ratio of decision reported in 1996 W.B.L.R. Calcutta page 242 and its understanding by the learned Judge appears to be totally misconceived since ther-3 is nothing in the said decision to indicate that in the case of a learned property being governed under the provisions of Urban Land Ceiling Act, the provisions of West Bengal Land Reforms Act would have no application.

8. Mr. Banerjee submits that in C. O. No. 3182 of 1989 he had the occasion to make identical submission to suggest that when Urban Land Ceiling Act came into existence prior to amendment of the West Bengal Land Reforms Act thereby changing the definition of land and the Urban Land Ceiling Act being a Central Legislation under the provisions of the Constitution if any conflict arises between a State Legislation and the Central Legislation, the provisions of the Central Legislation would get the precedence and hence, when on the question of coiling there is both Central Legislation and State Legislation in the form of West Bengal Land Reforms Act, in view of the Central Legislation, the provision of West Bengal Land Reforms Act will have no application in case of such landed property which is governed under the provisions of the Urban Land Ceiling Act. Mr. Banerjee contends that his submissions were not accepted by the Court which will be evident from the judgment of this Court delivered on 15th May, 1995.

9. Mr. Banerjee submits that apart from the judgment in connection with CO. No. 3182 of 1989 a decision of the Hon’ble Supreme Court as would certainly demolish the reasoning of the learned Additional District Judge in this regard. Mr. Banerjee submits that it has been held in the said judgment that Parliament was entrusted by some of the State Legislatures to enact on the limited question of ceiling of urban immovable property, but, by making such legislation the Parliament cannot take away the power of the State Legislature to pass legislation on the subject covered by Schedule (VII) List (II), Entry 18 and as the land laws and related matters fall under the State Entry even if there is a Central Legislation on the limited question of ceiling on urban immovable property, the provisions of West Bengal Land Reforms Act regarding other matters including that of right of pre-emption cannot be withered away.

10. Thus, Mr. Banerjee submits that when there is nothing in the judgment reported in 1996 W.B.L.R. Calcutta page 242 showing any legal embargo for application of the provisions of the West Bengal Land Reforms Act in case of the subject-matter property of the present case and when there is a decision of a learned Single Judge (unreported) and also a decision of the Apex Court showing positive indication about application of the provisions of the West Bengal Land Reforms Act, notwithstanding the existence of Urban Land Ceiling Act, the learned Judge totally erred in law by rejecting the claim of pre-emption on the ground of non-application of the provision of
Section 8(1) of the West Bengal Land Reforms Act.

11. On the second question Mr. Banerjee submits that it has been already held in the case of Bulu Kundu vs. Nirmal Kr, Kundu & Anr., reported in 2000 (1) CHN page 505, that even a co-sharer of the plot can apply for pre-emption and hence, there is no merit in the ground of rejection of the claim of preemption on the point of partition.

12. Regarding the third point taken by the learned Judge Mr. Banerjee submits that observation of the learned Judge is contrary to the position available from record because the petitioners wanted to pre-empt a portion of the disputed plot and the opposite parties purchased only a portion of the plot naturally there is no merit in the observation that since the entire plot was sold out, no question of pre-emption would arise. Mr. Banerjee, therefore, concludes that as there is no merit either on the question of fact and law regarding the observations made by the learned Judge in the impugned judgment and order, the same is liable to be set aside and the order of the Trial Court upholding the claim of pre-emption should be restored.

13. Mr. Sahu appearing for the opposite parties submits that the learned Judge has correctly interpreted the provisions of both West Bengal Land Reforms Act and the Urban Land Ceiling Act, 1976 and the learned Judge has correctly held that in case of a hi nd covered by the provisions of the Urban Land Ceiling Act, the question of pre-emption of said land under section 8(1) of the W.B.L.R. Act could not arise.

14. Mr. Sahu contends that in the Division Bench judgment of this Court given in the case of Paschimbanga Bhumijibi Krishak Samiti & Ors. vs. State of West Bengal & Ors., reported in 1996 W.B.L.R. Calcutta page 242, it has been observed in most clear and unambiguous language that having regard to the scope and object of both the Acts it should be held that the provisions of West Bengal Land Reforms Act have no application in respect of matters covered by Urban Land Ceiling Act. Mr. Sahu submits in view of this observation by the Division Bench which has not been challenged in a subsequent proceeding before the Apex Court conclusion would follow that provisions of West Bengal Land Reforms Act shall have no application where a land is covered under the provisions of the Urban Land Ceiling Act and admittedly the present suit plot is covered under the provisions of the said Act as per the schedule of the Act.

15. On the question of partition Mr. Sahu contends that unless there is a partition among the co-sharer either through a registered instrument or through a decree of a Court, no question of pre-emption would arise and the learned Judge correctly recorded his observation in this regard.

16.1 have considered submissions of both Mr. Banerjee and Mr. Sahu in the background of the judgment and order delivered by the learned Additional District Judge, 3rd Court, Howrah and I have also examined the unreported judgment delivered in connection with CO. No. 3182 of 1989.

17. From the submissions of Mr. Banerjee which were recorded by the learned Judge while delivering his judgment in connection with CO. No. 3182 of 1989, I find that Mr. Banerjee at that stage wanted to impress upon the learned Judge that since both the Urban Land Ceiling Act and West Bengal Land Reforms Act included provisions relating to ceiling matter, the Land Reforms Act being a State Legislature, cannot be made applicable in a case where provisions of Urban Land Ceiling Act are applicable. From the judgment of the learned Judge it appears that the learned Judge did not accept the contention of Mr. Banerjee.

18. Again, on examination of the judgment of the Hon’ble Supreme Court as ,1 find that the question before the Hon’ble Court was whether by entrusting Parliament under Article 252 to enact on a part subject under the State List the State Legislature can be debarred from passing legislation on other related matter under the State List and the Apex Court answered in the negative holding inter alia that Parliament has passed the law on a particular topic thereby making room for the State Legislature to pass its own legislation on the remaining subject under the State List.

19. Thus, on careful examination of both the unreported judgment of CO, No. 3182 of 1989 and the decision of the Apex Court as referred to above,
I am of the view that neither of the decision can establish the point of Mr. Banerjee that already there is a judicial decision indicating that notwithstanding the existence of Urban Land Ceiling Act the provisions of West Bengal Land Reforms Act shall be applicable in case of the immovable property which is admittedly governed under the provisions of the Urban Land Ceiling Act.

20. But, coming to the decision of the Division Bench of this Court given in the case of Paschimbanga Bhumijibi Krlshak Samity &
Ors., (supra) it is found that the Division Bench after a long discussion covering para 32 came to the conclusion in para 50 :

“50.Having regard to the scope and object of both the Acts, we are of the opinion that on applying the principles of harmonious construction and with a view to removing the intrinsic inconsistencies, it should be held that the provisions of the West Bengal Land Reforms Act have no application in respect of matters covered by Urban Land Ceiling Act. However, it is made clear that the said Act will have application to agricultural lands situated within the said area.”

21. It is pertinent to mention in this context that State of West Bengal while preferring special leave application against the judgment given in the case of Paschimbanga Bhumijibi Krishak Samity & Ors. (supra) did not challenge the observation of the Division Bench as contained in para 50 of the said judgment and this will clearly show that the said observation of the Division Bench is very much operative in the field and accordingly, it may be safely concluded that in the case of a land covered under the provisions of the Urban Land Ceiling Act, there will be no question of pre-emption of the said land under section 8(1) of the West Bengal Land Reforms Act and hence, the observation of the learned Additional District Judge is perfectly correct in the eye of law and on this ground alone, the present application is liable to be rejected. As I observe that the claim of pre-emption under section 8(1) of the W.B.L.R. Act is not maintainable m view of the provisions of Urban Land Ceiling Act, the other grounds taken by the learned Additional District Judge while rejecting the claim of pre-emption need not be looked into and naturally, I need not record any observation on the submissions of Mr. Banerjeo relating to those points.

22. Accordingly, I find no merit in the present application and the same is dismissed, however, without any order as to costs.

23. Urgent xerox certified copy of this judgment, if applied for, may be supplied expeditiously after complying with all necessary legal formalities.

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