Shamsuddin Ahmed, J. - (1.) In this writ application under Article 226 of the Constitution of India the validity of Section 4E of the West Bengal Land Reforms Act, 1955 (inserted by the West Bengal Land Reforms Amended Act, 1981) is under challenge.
(2.) Writ petitioners' case in short is that Smt. Binapani Pal and Smt. Srilata Pal were the owners of 2.53 acres of land in different plots described in paragraph 2 of the writ petition in Mouza Salap, J.L. No. 52, P.S. Domjur, Dist. Howrah. They purchased these lands in the year 1961-62 and since then using the land for non-agriculture purpose. They have divided the land into small plots for residential and commercial purpose. The area concerned has developed into a residential and commercial area. At times the lands in question were used as kitchen garden and vegetables were sometimes grown for domestic use. Out of these lands petitioners purchased several portions by registered deeds on different dates as narrated in paragraph 4 of the writ petition. These purchases were made in the year 1980. The petitioners entered into an agreement for sale of the case lands and agreement for sale was executed. When they had been to the Sub-Register's Office at Domjur they were informed that the Sale Deeds can be registered only after permission from the Collector has been obtained in terms of Section 4E of the West Bengal Land Reforms Act as communicated to the Registering Authority under a Government Memo, dated September, 17, 1986 issued by the respondent No. l. A copy of the Memo is Annexure 'B' to the writ petition. It has been contended that Section 4E encompasses a particular category of land namely, lands mainly used for agriculture or as an orchard. According to the writ petitioners the expression 'mainly used for agriculture' is too vague and it gives to the Collector power to grant permission to transfer in wide terms and such power is unguided, unrestricted, unfettered leading to its use arbitrarily. According to the writ petitioners, the lands which is used as kitchen garden cannot be said to be lands mainly used for agriculture purpose or for orchard. Accordingly, such type of land is not covered by Section 4E and for getting a Transfer Deed registered no permission is necessary. Writ petitioners claimed that none of them possess land in excess of ceiling limit described by the West Bengal Land Reforms Act or the Urban Land (Ceiling & Regulation) Act, 1976. According to them Section 4E imposed an unreasonable restriction and is violative of Article 300A of the Constitution of India. It is contended that there is no nexus between the restrictions imposed by Section 4E and the object to be achieved by the provisions of the West Bengal Land Reforms Act, mainly on these grounds the validity of Section 4E is being challenged.
(3.) Affidavit-in-Opposition sworn in by one Gopal Chandra Halder, Asstt. Secretary, to the Land & Land Reforms Department, Government of West Bengal has denied the allegations made in the writ petition. According to the said Affidavit-in-Opposition it has been contended that because of Section 1A of the W.B.L.R. Act the provisions of this Act is immune from challenge because of its protective umbrella given to it by Article 31C of the Constitution of India. To achieve the purposes specified in clauses (b) & (c) of Article 39 of the Constitution of India Section 4E has been enacted. In terms of the said Section Board of Revenue, West Bengal drew the attention of the Judicial Department of Government of West Bengal to the aforesaid provisions of Law. It is urged that provisions of Section 26 of the Urban Land (Ceiling & Regulations) Act, 19.76 in respect of vacant non-agriculture land also provides for similar permission for intended transfers. The Section was enacted to put a regularity measure to an indiscriminate transfer of land mainly used for agriculture or orchard to achieve the object of the West Bengal Land Reforms Act. It has also been contended that for guidance of the Collector in dealing with the applications u/s. 4E guidelines and direction has been given to the Collector in exercise of powers u/s. 62 of the said Act. A copy of the said guidelines is Annexure 'A' to this affidavit. According to them the expression 'land used mainly for agriculture' connotes the land is predominantly used for agriculture. Agricultural land has been defined in Section 2(b) of the West Bengal Estates Acquisition Act, 1953; The expression 'ordinarily used' cannot be precisely defined. Its general connotation is adequately intelligible and does not face the Authorities with unlimited and uncanalised power. This follows particularly because of Annexure 'B' to the Affidavit. It is also contended that the said affidavit-in-opposition that the writ petitioners did not produce their respective documents of purchase. Since the purchases were made in the year 1980 and the area concerned exceed 500 sq. metres and because of assertion made by the writ petitioners that the land is not used for agriculture purposes it will come under the provisions of the Urban Land (Ceiling & Regulation) Act, 1976. According to the respondents there is a prima facie case to indicate that the provisions of the said Act has been violated on the facts .as disclosed by the writ petitioners. It has also been contended that since the West Bengal Land Reforms Amendment Act, 1981 has received the assent of the President under Article 254 of the Constitution of India, it has a overriding effect over any provisions of any Act made by the Parliament or the State Legislature.;