Kshetra Mohan Das vs Srihari Charan Das

Chittatosh Mookerjee, J.—The short point in this Rule is whether transfer of a portion of share of an agricultural holding in favour of an adjoining owner gives rise to a right of pre-emption in favour of another adjoining owner in terms of Section 8(1) of the West Bengal Land Reforms Act, 1955.

In the instant case, the opposite parties Nos. 8 and 9 by a registered document transferred a share of the holding in question in favour of the present Petitioner. On September 8, 1966, the predecessor-in-interest of the present opposite parties Nos. 1-7 claiming to be an adjoining owner applied for pre-emption u/s 8 of the West Bengal Land Reforms Act. The learned Munsif disallowed the said application on the view that the exercise of the right of pre-emption on the ground of vicinage was unconstitutional. The lower appellate Court reversed the said decision and allowed the prayer for pre-emption in favour of the preemptors.

Mr. Bhunia no longer disputes that the provisions of the West Bengal Land Reforms Act relating to exercise of right of preemption by adjoining owners are constitutionally valid. He, however, contended before me that the second proviso to Section 8(1) of the West Bengal Land Reforms Act, 1955, would be attracted in the instant case and the Petitioner who is transferee had longer common boundaries with the holding in question and therefore, the transfer in his favour was not liable to be pre-empted by any other adjoining owner.

I am unable to accept the above contentions of the learned Advocate for the Petitioner. Sub-section (1) of Section 8 confers right of purchase by co-sharers and contiguous tenants in case of transfer of a portion or share of a holding of a raiyat to any person other than a co-sharer in the holding. A co-sharer pre-emptor has been given priority, under the first proviso to Section 8(1), over an adjoining owner in the matter of exercise of such right of pre-emption as conferred by Section 8(1) of the Act. The second proviso to Section 8(1) also deals with the question of priority between two Applicants who are both contiguous tenants. In case of competing claims for pre-emption by two contiguous tenants the Court by applying the test laid down in the second proviso is to give a preference in favour of the contiguous tenant having longest common boundary with the land transferred. The second proviso does not, however, lay down that in case of a transfer of a portion of share of holding in favour of one contiguous tenant other contiguous tenants would be ineligible to exercise right of purchase conferred u/s 8(1) unless the person praying for pre-emption has longer common boundary with the land transferred. The clear language of the statute rules out any contention to he contrary.

Mr. Bhunia in his fairness drew my attention to the judgment of S.K. Datta J. in the case of Narayan Chandra Ghosh and Another Vs. Sanat Kumar Das and Others, , wherein his Lordship was constrained to take the same view about the scope of the second proviso to Section 8(1) of the Act. It is not for the Court to question the wisdom of a particular enactment. Therefore, I need not consider the submission of Mr. Bhunia that if the object to Section 8(1) be consolidation of holdings, the same cannot be achieved in case purchase of a share or a portion of holding by one contiguous owner is made subject to right of purchase u/s 8(1) by another contiguous tenant irrespective of the question whether the purchaser or the pre-emptor has longer common boundary with the land transferred. If this is a causus omissus, it is for the Legislature to rectify the same and not for the Court to add to the clear language of the statute by further qualifying the right of pre-emption conferred by Section 8(1) of the Act.

Mr Bhunia also tried to contend before me that the pre-emptor opposite parties cannot get any order for pre-emption inasmuch as there was waiver of the said right by the conduct of the predecessor-in-interest of the present opposite parties Nos. 1-7. The said question of waiver was not mooted either in the trial Court or in the lower appellate Court and therefore, I am unable to entertain the same for the first time in this application under Article 227 of the Constitution of India.

Subject to these observations the Rule is discharged. There will foe no order as to costs.