Renuka Singh vs Revenue Officer, Settlement ''B'' Camp.

These two appeals are directed against he judgment and order of our learned brother M. N Roy, J discharging two civil rules obtained by the respective appellants in these two appeals challenging legality of Case No. 8 (Chapra) LA 77 under S. 14T of the West Bengal Land Reforms Act.

The Revenue Officer concerned had initiated the said case no. 8 under S. 14T of the West Bengal Land Reforms Act for determining the extent of the land of Panchanan sigh, the appellant in F M A T. No. 807 of 1982 and the extent of land which was to be vested in the State out of his khaslands pursuant to he notice served upon him, Panchanan had appeared before the Revenue Officer and filed a statement of agricultural land held by him. The Revenue Officer considered the said Schedule to be incomplete, as Panchanan had not included the lands, which stood, recorded in the names of his two unmarried daughters. Under the direction of the Revenue Officer, panchanan Singh also filed a statement of agricultural lands held by his won daughters, Sm. Minati Singh and Renuka Singh. He also purported to include his married son Sailendra and one minor son as members of his family on the ground that they only owned homestead land at Goari, P.S. Krishnanagar, Dist Nadia. The Revenue officer refused to in clued Panchnan''s elder son Sailendra as a member of Panchanan''s family for the purpose of calculating the ceiling area, which Panchanan was entitled to retain. The Revenue Officer held that Panchanan''s family should be deemed to consist of six members including his two daughters mentioned above Thereafter, he allowed Panchanan to retain 19.03 acres of agricultural land in non-irrigated area and vested rest of the lands includes the lands which stood recorded in the names of the two daughters who aware appellants before us in F.M.A. No 315 of 1983, on the ground that the said lands had not been retained.

In our view, the learned trial judge rightly declined to allow writ petitioners to challenge the validity of the provisions of Ch. IIB of the West Bengal Land Reforms Act because the West Bengal Land Reforms Act including the Amending Acts inserting Ch. IIB have been included in the Ninth Schedule to he Constitution of India and therefore, the said Act and the Amending Acts stand validated under Articles 31B of the Constitution of India. The Supreme Court in the case of Sasanka Sekhar Maity and Others Vs. Union of India (UOI) and Others, and also in the case of Sri Kalimata v. Union of India, (1981) 2 SCR 950 , has already upheld as ultra virus the provisions of Ch. IIB of the West Bengal Land Reforms Act Mr Harinarayan mukherjee, appearing on behalf of the appellants bad treed to urge that the definition in S. 14K(c) of the West Bengal Land Reforms Act makes an unreasonable differentiation in treatment between unmarred daughters and unmarried adult sons of a rayed. An unmarried daughter irrespective of the fact whether she holds any land as a raiyat is to be considered as a member of the family of a raiyat whereas the raiyat''s unmarried adult son who does not hold any land as a raiyat, shall be deemed to be a member of the raiyat''s family. We can only observe that in view of facts already recorded, the appellants are preceded from challenging he constitutional validity of the deficit on of "family" given in S. 14K(c) of the West Bengal Land Reforms Act.

There is however, considerable substance in the other submission of Mr. Harinarayan mukherjee, that in the facts of this case the Revenue Officer has committed an error of jurisdiction by refusing to include sailendra, the adult married so not panchanan on the ground that he held a homestead land at Goari within the municipal limits of Krishnanagar. Mr. Mukherjee has rightly submitted there was no finding by the Revenue Officer that Sailendra, the said married adult son of panchanan held ably agricultural land. According to S 2(7) of the West Bengal Land Reforms Act "and" means agricultural land other than land comprised in a tea garden �� and includes homesteads but does not include tank. According to the explanation to the said clause ''homestead'' clause ''homestead'' shall have the same meaning as in the West Bengal Estates Acquisition Act 1953. In other words, S. 2(7) of the West Bengal Land Reforms Act has incorporated and doped the definition of ''homestead'' given in S. 2(g) of the West Bengal Estates Acquisition Act. Under the present law, a homestead ipos faxto is not an agricultural land. It is only the homestead of a rayed that has to be considered as an agricultural holding. The amended definition of ''land'' in S. 2(7) of the West Bengal Land Reforms At have, no doubt, enlarge the meaning of land by bringing within its fold ''homestead'' of a rayed. There is no warrant for the view that every homestead is agricultural land irrespective of the fact whether the person owning such homestead is a rayed or not. Even if we do not subscribe to the extreme view that unless the homestead is included in a holding which also comprises lands used for agricultural purposes, homestead will not be governed by the West Bengal land Reforms Act (Vide Kama''eswar Singha v. Bijli Bhattacharya & Ors 1979 (2) CLJ. 526). The intendment of the law is that when a person holds land for agricultural purposes and is a rayed, his status also in relation to his homestead would be that a raiyat (vide Saktipada Sinha Vs. State of West Bengal and Others, ). But in case the person who owns a homestead does not hold any land for agriculture purposes his status in relation to his homestead would not be that of a raiyat.

For the foregoing reasons, we propose to remit the matter back to he Revenue Officer for fresh disposals of the proceeding under S. 14T of the West Bengal land Reformisms Act. The Revenue officer will hold further enquiry to find out whether Sailendra, the married adult son or his unmarried daughter or minor son hold any agricultural land besides Sailendra''s homestead at Goari, Krishnanagar. In case it is found that Sailendra or members of his family do not hold any agricultural land, then in computing the number of members of Panchanan''s family, Sailendra is to be included and the ceiling area of the land retainable by Panchanan shall be predetermined accordingly. For this purpose, the Revenue Officer will give a fresh opportunity to Panchanan to exercise his option to retain his lands. We have held that the appellant in appeal No. 315 of 1983, Renuka Singha and Minati Singha, have been rightly included as members of panchanan''s family. As Panchanan would be given a fresh opportunity to exercise his option,

it would be open to in to consider whether lands standing in the name of his two daughters would be included in his said retained lands. Pending fresh disposal of the proceeding under S. 14T of the West Bengal Land Reforms Act, the respondents will remain restrained form radiating the lands standing in the name of Panchanan and members of his family as vested lands. After disposal of the proceeding under S. 14T, all parties would be at liberty to proceed according to law.

The appeals are disposed of in the above terms. There will be no order as to costs.

Let a copy of this order be prepared by the office and served upon Mr. Tapas Mukherjee, learned advocate for the respondents.

Shamsuddin Ahmed, J.

I agree.