LexARDHENDU BHUSAN HALDAR (DEAD) BY L.RS. ETC. ETC. versus SMT. GANGAMONI MONDAL ETC. ETC.
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ARDHENDU BHUSAN HALDAR (DEAD) BY L.RS. ETC. ETC. v. SMT. GANGAMONI MONDAL ETC. ETC. SEPTEMBER 18. 1990 [S. RANGANATHAN AND K.N. SAIKJA. JJ.] Bengal Tenancy Act, 1985: Section 26F-Whether right of pre- emption conferred on co-sharers available to holders after interest has vested in the Government under the Bengal Estates Acquisition Act, 1953. West Bengal Estates Acquisition Act, 1953-Whether right of pre- emption available to erstwhile co-sharers classes. Smt. Gangamoni Monda!, the respondent in one of the appeals, purchased on 29.1.1963 the suit property. About three years and five months after her purchase, the predecessor-in-interest of the appellants made an application for pre-emption under section 26-F of the Bengal Tenancy Act, 1885on the ground that he was a co-sharer of the holding which comprised the land purchased by the respondent. The holding was ·previously a Raiyati Mokarari interest which had vested in the State under the provisions of the West Bengal Estates Acquisition Act. · 1953. The defence of the respondent was that, though the predecessor- in-interest of the appellant and her vendor were the joint holders of the property in question, the right of pre-emption available to the co-sharer had ceased with the coming into force of the Estates Acquisition Act of 1953. The pre-emption application was allowed by the learned Munsif and his order was confirmed by the learned Additional District Judge. In revision, the Full Bench of the High Court negatived the contention of the applicant and dismissed the pre-emption application. Dismissing the appeals and SLPs, this Court, HELD: (1) The Full Bench has rightly come to the conclusion that the right of pre-emption could not survive under the West Bengal Estates Acquisition Act, 1953. [348B I A B c D E F G (2) Section 26-F of the Tenancy Act, 1885 conferred on a co• sharer tenant of an occupancy holding, a right to compel another co- H 527 528 SUPREME COURT REPORTS I 1990] Supp. I S.C.R. .~ sharer tenant to sell his share in the holding to him instead of to a A stranger. The term "co-sharer" envisages that the holding must be under the ownership of more than one person. The holding must be an occupancy holding: that is, it must be the holding of raiyats having occupancy rights. So long as a division of the holding does not take place in accordance with section 88 of the Tenancy Act, the holding B remains a joint holding and each co-sharer will be entitled to pre- emption in case of transfer of a share or portion of the holding by a " co-sharer to a stranger. [340E-F] . (3) By virtue of the notifications issued by the State Government under section 4 of the 1953 Act from time to time theinterests of raiyats c and under raiyats vested in the State with effect from April 14, 1956. [341C] ( 4) The effect of 1953 Act was to vest the rights of bttermediaries (an expression subsequently extended to cover raiyats and under rai_vats) in the State Government. Each raiyat became a direct tenant under the State and t!ie land retained by a raiyat of a holding became D the subject matter of a separate tenancy. It was, therefore, no longer possible to call them co-sharers entitled to pre-emption case of ·a trans- fer to a stranger. [341D; 345E] (5) By a notification dated 28.5.1954, the Government of West Be11gal framed rules called the West Bengal Estates Acquisition Rules, E 1954. The original rule 4 merely provided that in the case of agri- cultural land retained by the intermediary, he shall hold it on the same terms and conditions as an occupancy raiyat under the Tenancy Act, leaving it undefined as to whether these terms and conditions would also ipclude the right of pre-emption available under the Tenancy Act. The amendment of 1962 specifically included the right of pre-emption F available under section 26-F but the reference to section 26-F was omit- ted by the amendment of 1964. This definition, however, did not mean that the right of pre-emption was taken away. [343F; 344E-F; 347F) (6) There is no statutory provision that brings non-agricultural (enants within the scope of the vesting provisions. The High Court was G right in making the distinction and upholding the right of pre-emption in the case of non-agricultural tenancies. [349A-B) Shibasankar v. Prabartak Sanghs, [1967) 2 S.C.R. 558. Sastidas Mullick v. J. L. R. 0. Parrachpore Circle and Ors., [1977] · ' 1-1 I C.L.J.
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