PRASENJIT MANDAL,J. - (1.) THIS application is directed against the Order dated June 25, 2008 passed by the learned Additional District Judge, 1 st Court, Bankura in Misc. Appeal No.11 of 2006 thereby reversing the order being No.34 dated April 28, 2006 passed by the learned Civil Judge (Junior Division), 2 nd Court, Bankura in Misc. Case No.5 of 2003 under Section 8 of the W.B.L.R. Act, 1955.
(2.) THE respondent / petitioner herein instituted a proceeding being Misc. Case No.5 of 2003 under Section 8 of the W.B.L.R. Act, 1955 against the appellant / opposite party herein. THE opposite party contested the said misc. case and upon hearing both the sides, the learned Trial Judge allowed the application Section 8 of the W.B.L.R. Act on contests. Being aggrieved by such order, the opposite party preferred an appeal being Misc. Appeal No.11 of 2006. That appeal was allowed on contest holding that the misc. case was not maintainable and as such, the said misc. case was dismissed on contests without any costs. Being aggrieved, the respondent / petitioner herein has preferred this application. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Advocate for the petitioner, I find that the misc. case under Section 8 of the W.B.L.R. Act was allowed by the learned Trial Judge holding that the definition of land had been changed. Now, as per definition of land under Section 2(7) of the W.B.L.R. Act, land includes every kind of land and as such, the land in case being a tank will come under the definition of land. The learned Trial Judge has held that the petitioner has adjacent land and as such, he is entitled to get an order of pre-emption under Section 8 of the W.B.L.R. Act when the land in case had been transferred to a stranger purchaser. Accordingly, the application was allowed. The Appellate Court relying on the decision of Paschimbanga Bhumijibi Krishak Samiti & ors. v. State of West Bengal & ors. reported in 1996(2) CLJ 285 held that since, the definition of 'land ' had been declared ultra vires by the decision of the said case by a Division Bench of this Court, the tank could not come under the definition of land and so, old definition of land which means agricultural land should only be considered in case of preemption under Section 8 of the W.B.L.R. Act and as such, the appeal was not maintainable. The misc. case was not also maintainable and so, the order of dismissal had been passed. The Lower Appellate Court also observed that the definition of land as made in Section 2(7) or 3A(3) of the W.B.L.R. Act, 1981 and 1986 had been declared ultra vires in the said Division Bench decision. Having been declared ultra vires, the old definition of land which means for agricultural land other than tea garden, but includes homestead, but does not include a tank should be accepted. Accordingly, the misc. case is not maintainable. While commenting on such observations passed by the learned Lower Appellate Court, Mr. Kushal Chatterjee, learned Advocate appearing for the petitioner has contended that the pre-emption was sought for on the ground of vicinity but the Lower Appellate Court did not consider that ground at all and there is no discussion whether the petitioner has any land adjoining tank in case. The decision of the Division Bench has been stayed before the Apex Court and as such, the said decision should not be taken into consideration. Mr. Chatterjee has next contended that since there is no discussion at all on the ground of pre-emption, the matter should be remanded to the Lower Appellate Court for decision afresh. Mr. Chatterjee has also submitted that the decision of a case will be bound in other cases provided the facts and circumstances are similar but in the instant case, the learned Lower Appellate Court has travelled beyond his limitation and he has considered the aspect of stay of the order of the Division Bench in details which was not and could not be a subject matter of discussion in the concerned misc. appeal. Thus, he has submitted for setting aside the impugned order and for sending the case to the Lower Appellate Court on remand for a fresh decision. On perusal of the impugned order, I find that at the appellate stage, both the parties made submissions over the appeal on the ground of maintainability of the misc. case. No other ground has been urged before the Lower Appellate Court. Accordingly, I find that the learned Trial Judge has discussed the ground of maintainability of the misc. case only and he has disposed of the same. In disposing of the said appeal, the learned Lower Appellate Court has relied on the decision of Paschimbanga Bhumijibi Krishak Samiti & ors. (supra) and observed that the definition of the land as made in Section 2(7) of the said Act has been declared ultra vires and as such, the old definition of 'land ' would be taken into consideration and so, in order to dispose of an application under Section 8, land as described under the old Act is to be considered and according to the old definition of the word 'land ', the land means and includes agricultural land only and as such, the land in case being a tank does not come within the purview of land and as such, the learned Lower Appellate Court has dismissed the appeal as well as the misc. case. Now, a decision is an authority which is decided in the said decision taking into consideration the facts involved therein. In the case of Paschimbanga Bhumijibi Krishak Samiti & ors., the matter relates to determination of compensation on acquisition of property by the Government, impact of the Urban Land Ceiling Act on the W.B.L.R. Act, the provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, etc. on the lands covered by the said Thika Tenancy Act vis-a-vis the W.B.L.R. Act etc. Facts in the said decision did not deal with the pre-emption matter as in the present case and as such, there is a scope for reconsideration of the applicability and binding in nature of the said decision (Paschimbanga Bhumijibi Krishak Samiti & ors.) in the instant situation. The learned Trial Judge did not consider at all as to the merits of the appeal, that is, with regard to the ingredients to be considered in the matter of disposal of an application under Section 8(1) of the W.B.L.R. Act in the impugned judgment. This being the position, without making observations in details over the matter, I am of the view that the impugned order should be set aside and the matter should be remanded back to the learned Lower Appellate Court for decision afresh on all points including the question of maintainability of the misc. appeal vis- à-vis misc. case.
(3.) IN that view of the matter, I am of the opinion that the appeal is disposed of. The impugned order is hereby set aside. The learned Lower Appellate Court is directed to hear out the misc. appeal afresh on all points including the question of maintainability as indicated above. He shall dispose of the misc. appeal afresh as early as possible preferably within three months from the date of communication of this order to him. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.;