SHYAMAPADA BHATTACHERJEE Vs. SATYA GOPAL MAJUMDAR
LAWS(CAL)-1963-3-3
HIGH COURT OF CALCUTTA
Decided on March 27,1963

SHYAMAPADA BHATTACHERJEE Appellant
VERSUS
SATYA GOPAL MAJUMDAR Respondents

JUDGEMENT

- (1.)THIS revisional application is directed against an appellate order dismissing the petitioners' application under section 24 of the Non-Agricultural Tenancy Act, 1949, for preemption.
(2.)THE petitioners are some of the co-sharer tenants of a non-agricultural tenancy recorded in khatian No. 560 of mouza Gar, Berhampore. Santiram bhattacharjee and 3 others were some other co-sharer tenants having 1 anna 12 gondas share in the tenancy. They sold their undivided share in the tenancy to the opposite party for a sum of rs. 1000/- by virtue of a registered kobala on 16. 5. 58. No notice of the transfer was served on the petitioners but the petitioners having come to know of the transfer filed the application for pre-emption under section 24 of the Act on 15. 9. 58.
(3.)THE non-agricultural tenancy contains a pucca dwelling house. What was sold to the opposite party was an undivided 1 anna 12 gondas share in the dwelling house and the lands comprised in the non-agricultural tenancy. The learned Munsif held that section 24 of the Act is attracted when there is a transfer of non-agricultural land and not transfer of non-agricultural land and the building thereon. The application for pre-emption was accordingly dismissed. The learned sub-ordinate Judge has also held that section 24 of the Act is attracted when the transfer is of non-agricultural land but; not of the non-agricultural land and the building thereon. Mrs. Maitra, who appears for the petitioners, argues that section 24 will be attracted not only where the transfer is of non-agricultural land but also where the transfer is of the non-agricultural land and the building thereon. There is no dispute that there is a dwelling house on the nonagricultural land in question where the petitioners live. There is also no dispute that the opposite party is a stranger. The short point in this revisional application is if section 24 is attracted when the transfer is in respect of the non-agricultural land, and the building thereon. Section 24 allows pre-emption when either the entire or a portion or a share of non-agricultural land is transferred. Non-agricultural land has been defined in section 2 (4)of the Act which states that 'non-agricultural land' means land which is used for purposes not connected with agriculture or horticulture, and included any land which is held on lease for purposes not connected with agriculture or horticulture irrespective of whether it is used for any such purposes or not. It will thus appear that a land which is used for- purposes other than agriculture or horticulture is non-agricultural land. Mr. Ganguly, who appears for the opposite party, argues that section 24 must be confined to bare nonagricultural land and not land covered with building. If this argument is accepted, the result will be that preemption will be allowed to co-sharer tenants in cases of bare land but not in cases where dwelling houses have been constructed on the land. The purpose of section 24 is to prevent non-agricultural lands from being possessed by stranger purchasers if the other co-sharer tenants desire to have the same themselves. This purpose will be all the more necessary in cases where dwelling houses have been constructed on such land. Section 4 of the Act speaks of the purposes for which a nonagricultural tenant may hold non-agricultural land. "homestead or residential purposes" is one of the purposes. Thus non-agricultural land can be held for building a dwelling house on the land. If the argument of Mr. Ganguly is accepted, the land will cease to be non-agricultural land as soon as a building for residential purposes is built thereon. This appears to me to be highly incongruous because in that case the land may be held as non-agricultural land for the purpose of building a residential house there but once the residential house is built thereon, it ceases to be non-agricultural land. The legislature cannot be said to have intended such an incongruous result. Moreover, as I have said, the words used in section 2 (4) are "land which is used", that is, which is being used for purposes not connected with agricultures or horticultures. Land with a dwelling house built thereon must therefore continue to be non-agricultural land. Mr. Ganguly further argues that the petitioners have certain rights under section 44 of the Transfer of Property Act and section 71 of the non-Agricultural Tenancy Act saves those rights. It is true that by virtue of section 71 of the Non-Agricultural tenancy Act the provisions of the transfer of Property Act in so far as they are not inconsistent with the provisions of Non-Agricultural Tenancy act will continue to apply to all tenancies to which the previsions of the non-Agricultural Tenancy Act apply this saves the general rights provided for under the Transfer of Property-Act in respect of the non-agricultural tenancies coming under the non-Agricultural Tenancy Act 1949. But the question here is if the right of pre-emption allowed under section 24 of the Act is attracted when the transfer is not of the bare non-agricultural land but of the non-agricultural land with a building thereon. On a construction of the relevant sections I hold that section 24 is also attracted to a transfer of a nonagricultural land with a building thereon.


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